SCARING! What Raila’s withdrawal means to the country.

NASA leaders at the Okoa Kenya Headquarters in Lavington Nairobi where Raila Odinga withdrew from the October 26 polls arguing that the contest was not be free and fair.
Yesterday’s dramatic gamble by Raila Odinga to withdraw from the presidential rerun has basically throwing the country into a tailspin as legal experts interpret the move differently depending on which side of the political divide they are aligned to.

Odinga argues that his withdrawal shall lead to an automatic cancellation of the October 26 vote and IEBC conducting fresh nominations. In its argument, NASA is heavily relying on a 2013 Supreme Court ruling in the presidential election petition judgement in which the judges unanimously interpreted Section 138(8) of the Constitution to include a scenario where one of the presidential candidates (or his running mate) decides to withdraw.

Raila cited paragraph 290 of the ruling in which the six-member bench led by Chief Justice Willy Mutunga ruled that if a candidate withdraws, the election stands postponed.

On the other hand, Jubilee Party argues that Raila’s withdrawal could only have been valid if he had done it three days after he was nominated the NASA candidate. They insist that he remains a candidate whose name will be on the ballot.

However, the names on the presidential ballot could only change to three should the High Court today rule to include Ekuru Aukot as a candidate following his suit.

Raila and running mate, Kalonzo Musyoka, yesterday officially notified IEBC in writing they had withdrawn from the race.

An IEBC insider who spoke to us in a condition of anonymity also pointed to Regulation 52(1) of the (General) Election regulations which asserts that the candidate should notify IEBC of withdrawal within three days after the nominations. This means that if Raila Odinga had withdrawn within stipulated timelines, regulations 21 and 53 of the Elections Act would have required IEBC chairman to gazette the name of the remaining candidate as unopposed.

Some legal experts argue that Raila’s resignation does not change the reality on the ground and in the Constitution. They say that the Supreme Court ordered elections in 60 days, which IEBC must follow.

And while speaking in Voi yesterday, President Uhuru said the election will go on as planned, as it was not a must for Raila to be on the ballot.

Is it to swear-in Uhuru or have a fresh election?

Some Jubilee experts feel that the opposition chief is committing a crime by interfering with the work of the IEBC and is also contemptuous of the apex court by sabotaging the polls.

It is not clear how Section 138(8) of the Constitution should be interpreted, considering the September 1 Supreme Court ruling that nullified President Uhuru Kenyatta’s victory on August 8. 
The court ordered a fresh election within 60 days. That period ends this month.

NASA lawyers argue that under the circumstances, political parties should conduct fresh nominations for their presidential candidates as if the election never happened.

On their part, Jubilee argue that ‘There is no lacuna and Uhuru is now the duly elected president and should be sworn in.

What next?

Odinga’s move brings us to several possible scenarios to this whole political quagmire. These include and are not limited to:-

1. Status quo remains.
One of the possibilities is that IEBC will continue with the elections on the 26th (of October) with only the willing candidate(s) since the nomination and gazettement of candidates has already been done.

2. Fresh election.
It is also possible that IEBC will bow to pressure by NASA and call for fresh elections in 90 days based on the Supreme Court judgement of 2013. This will present NASA with an opportunity to come up with a new line up where Raila is not necessarily the candidate.

3. Declare Uhuru winner.
If IEBC respects Article 138(1) of the Constitution, it will automatically declare Uhuru Kenyatta as president as he is unopposed by invoking Regulations 52 and 53 of the election laws.

4. Reform poll laws.
Parliament will proceed with the proposed electoral law amendments to factor in a solution to the crisis.

5. Interim government.
NASA will go to the Supreme Court to that declare Uhuru's mandate as president ended on October 31, opening a leeway to create a caretaker government led by the Speaker of National Assembly Justin Muturi after November 1st  until elections are conducted within 90 days.

6. State of emergency.

Raila was yesterday categorical that his withdrawal would give NASA room to intensify its protests for electoral reforms, which continue today and Friday. The street protest might eventually escalate to full blown violence.

In such a case scenario, the president might be forced to invoke Article 132 (4) (d) of the Constitution within which he may use his majority in the how to change that constitution and call for a referendum.

Remember, someone once said that Kenya needs a benevolent dictator. This might be President Uhuru Kenyatta’s chance to rewrite the history of this great nation to check certain constitutional freedoms Kenyans now enjoy to save the country from moral and economic sabotage.

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