Donald Kipkorir: Withdrawal By Raila Odinga Takes Kenya To Uncharted Waters, And Possible Way Forward

By Donald Kipkorir

Today, Raila Odinga withdrew his Presidential Candidature and took Kenya to uncharted waters and new legal and constitutional territory.

With tremendous respect to my friends Prof. PLO Lumumba and Doctors Ekuru Aukot and Otiende Amollo, who wrote our Constitution, the same though a milestone has many loopholes. Our Constitution is a mishmash of the Constitutions of USA, Germany and South Africa and borrowed from the Constitutional practice of Britain. By this confused journey to get a new Constitution, we ended up with a mongrel.

Our Constitution doesn’t in Article 138 provide what happens when a Presidential Candidate withdraws. What Supreme Court said in 2013 isn’t binding for two reasons: Maraga decision moved away from it, and in any event Mutunga decision on withdrawal of Candidate was orbiter dicta .. Courts are free to give advisory opinions that aren’t binding.

Further, our Constitution can only be amended in Parliament or by Referendum. The Courts don’t have power to amend the Constitution.

Due to this lacunae in our Constitution, only two options are available: 1. All Presidential Candidates Of August 8 to reach political decision and agree on Fresh Elections. 2. Constitutional amendment thereafter be gone into to cure this lacunae and other contradictions in the Constitution… there are many.

Finally, IEBC should stay out of partisan politics. We wouldn’t have been here if IEBC were faithful to their oath. In fullness of time, Chiloba must be held to account. And to show uberrimae fidei, my classmate and friend William Cheptumo must abandon the Election Laws Amendments. For now, we don’t need anyone throwing a lit matchstick to our political gas tank!

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