Opposition leader and NASA presidential flag bearer, Raila Amolo Odinga announced today that he will not participate in the repeat of the October 26 elections.
Odinga, declared that the courts will not force him to participate in an election against his free will, following a petition to have him forced to rescind his boycott threat prior.
He had earlier insisted that he would only go for a rematch with President Kenyatta if the Independent Electoral and Boundaries Commission provides a level playing field.
The move came as Kenya was debating proposals to the amendment of the electoral laws.
Hours after Raila’s announcement, the IEBC convened a meeting to map out a way forward.
In a post on its Twitter account on Tuesday evening, the IEBC stated that the commissioners and the legal team are meeting to deliberate on the move.
“Following the withdrawal of the NASA presidential candidate, the Commission and the legal team are meeting and will communicate way forward,” the post read.
But what does Raila’s boycott of the re-election mean?
Legal experts are divided about the implication of Raila’s withdraw from the polls.
Some said the decision had plunged Kenya into a constitutional crisis and could require Parliament to convene and enact amendments to the electoral laws.
Others said Raila will have to rely on paragraph 290 and 291 of the Raila vs IEBC 2013 decision to demand a fresh election and suspension of the October 26 elections.
The Supreme Court in the Presidential Election Petition, Raila Odinga 2013, held that if either of the two candidates abandons the Fresh Election, then a general election will ensue, starting with nominations.
Yet some say the current position, according to the law, is as follows.
As part of the 2016 bi-partisan electoral reforms ( Kiraitu-Orengo Committee) , Parliament enacted two provisions of law to deal with this exact scenario.
Section 55 (b) deals with consequences of elections being postponed in some wards, constituencies and counties.
It allows IEBC to declare final results without those areas if their results don’t alter final declaration. This is the section in full:
(1)The Commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county or ward for such period as it may consider necessary where —
(a)there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date;
(b)it is impossible to conduct the elections as a result of a natural disaster or other emergencies,
(c)that there has been occurrence of an electoral malpractice of such a nature and gravity as to make it impossible for an election to proceed.
(2) Where an election is postponed under subsection (1), the election shall be held at the earliest practicable time.
(3)Notwithstanding the provisions of this section, the Commission, if satisfied that the result of the elections, will not be affected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made.”
The other new provisions, which modify the 2013 ruling, are regulations 52 and 53 of the Elections ( General) Regulations, again passed in April 2017 by parliament with the full participation of NASA .
They allow the remaining candidate to be declared winner if one of two candidates withdraws
So some say there is accepted precedent for declaring Uhuru Kenyatta and William Ruto the duly elected president and deputy president respectively even if Raila pulls out.
Provision 52 notes: “Where there are only two nominated candidates and one candidate withdraws, the remaining candidate shall be declared duly elected in accordance with regulation 53.”
Whatever the Kenyan electoral laws say, it is clear that the IEBC and the country shall have to do some soul searching as it tries to find a solution to this legal quagmire.
The next few days shall give us a clear picture as to how Kenya intends to resolve this unprecedented situation.