The nullification of President Uhuru Kenyatta’s re-election by the Supreme Court plunged Kenya squarely into uncharted waters and exposed hitherto unknown grey areas in the Constitution and electoral laws.
While some people argued that the Constitution was a living document that evolves, changes and adapts to new circumstances without being formally amended, Kenyans were not prepared for the kind of confusion rendered by the 2010 Constitution, touted as one of the best globally.
Lawyer Donald Kipkorir argued that after Nasa presidential candidate Raila Odinga withdrew from the race, that decision took Kenya to a path that had not been walked on before and new legal and constitutional territory. He adds that while the Constitution was a milestone, it had many loopholes.
“Our Constitution is a mishmash of the USA, Germany and South Africa constitutions and borrowed from the constitutional practice of Britain. By this confused journey to get a new Constitution, we ended up with a mongrel,” he said.
Indeed, that has come to pass. For instance, initially, there was a legal conundrum, escalated by the media, on whether what the Supreme Court ordered for was a ‘fresh election’, ‘re-run’, or ‘repeat’ election. The media continued mixing the terms, which do not mean the same thing. The confusion was compounded by IEBC when they initially announced that the ballot would have only Uhuru and Raila.
Some argued that a ‘fresh election’ should have all the candidates who ran in the August 8 poll but what IEBC set up was a run-off between the top two candidates. The issue became even murkier when IEBC said they based their decision on the 2013 presidential election petition judgment.
The Supreme Court, then headed by retired Chief Justice Dr Willy Mutunga, ruled that in case of a successful petition, only the petitioner and the person whose victory is being challenged should contest in subsequent presidential election.
However, Presidential candidate Ekuru Aukot did not argue with the decision. He sought the High Court’s interpretation, arguing that fresh election meant that everyone who contested should be allowed in the ballot.
Justice John Mativo allowed his inclusion in the poll because Mutunga’s ruling was ‘obiter dictum’, which means a judge’s incidental expression of opinion, not essential to the decision and not establishing precedent. But other lawyers still insisted Mutunga’s ruling was binding because the Supreme Court had the final jurisdiction.
Further, when Raila said he had withdrawn from the race, the decision left the country in a legal dilemma on whether the elections would go on. Analysts said Raila’s withdrawal set the country on a path to “constitutional uncertainty”.
While Nasa insisted that with such a move, legally, it meant that there would be no elections, Jubilee held a different view. President Uhuru announced the election would go ahead, telling supporters “there is nowhere the Constitution says Raila Amollo Odinga has to be on the ballot”.
On the day Raila withdrew, the electoral commission said on Twitter it would meet with its legal team and “communicate way forward”. It later said Raila would still be on the ballot since he had not filled Form 24 A, to formally withdraw.
But Nasa argued that such an eventuality could only be occasioned three days after candidates are duly nominated. Since there was no nomination after the election was annulled, then Raila was not obliged to fill the form and hence the letter he wrote should stand, Nasa said.
Equally, while the Opposition had been saying IEBC should postpone the polls until the electoral body is reformed, the Constitution is silent on what happens if the presidential election does not take place within 60 days after the court’s annulment.
Opinion is divided, with those in favour of postponement saying IEBC could go back to the Supreme Court and declare they are not ready and ask for extension. But others opine that the court doesn’t have powers to give such an extension.