Nasa leader Raila Odinga on Tuesday withdrew from the repeat presidential election duel with President Uhuru Kenyatta, and demanded a new poll 90 days after fresh nominations.
Mr Odinga, who withdrew with his running mate Kalonzo Musyoka, blamed what he said was the electoral agency’s inability to correct massive mistakes identified by the Supreme Court before the October 26 re-run.
“After deliberating on our position in respect of the upcoming election, considering the interests of the people of Kenya, the region and the world at large, we believe that all will be best served by Nasa vacating its presidential candidature in the election scheduled for 26th October 2017,” Mr Odinga said at the Okoa Kenya offices in Nairobi.
He was flanked by Mr Musyoka, Nasa co-principals Moses Wetang’ula and Musalia Mudavadi, who also read the statement in turns.
“Kama mbaya, mbaya (Let whatever will come, come),” Nasa legislators said in a chorus after the statement.
Mr Odinga based his argument on a 2013 Supreme Court decision that interpreted what a fresh election means, who should participate and what happens when, in the event of two candidates running in the repeat poll, one of them withdraws from contest.
According to the Nasa leader, his withdrawal, backed by the controversial Chief Justice Willy Mutunga-led Supreme Court decision, means a whole new process, complete with fresh nominations.
“The implication of this provision is that upon our withdrawal, the election scheduled for the 26th October stands cancelled.
“Our withdrawal from the election requires the IEBC to cancel the election and to conduct fresh nominations,” Mr Odinga said.
In making its interpretation, the Supreme Court, which had been asked to make the determination by Attorney-General Githu Muigai, broadened the provisions of Article 138 (8)b that talk about fresh nominations in the event of death, to include withdrawal of a candidate in a two-man fresh election.
The position by Nasa will be in direct conflict with President Kenyatta’s Jubilee Party interpretation of the scenario, which they read to mean an automatic declaration of the remaining candidate as the winner, and his eventual swearing-in.
While the IEBC has not pronounced itself on what comes next after the withdrawal, Regulation 52(1) of the Election (General) Regulations requires a candidate to write formally to them to withdraw their candidature, but within three days of the nominations.
In the case of such a withdrawal, the regulations say, the remaining candidate, if two had been nominated, will be declared elected.
This, however, presents another gap in law that may likely head back to the Chief Justice David Maraga-led court that invalidated the August 8 presidential poll.
Mr Odinga on Tuesday blamed the IEBC for what Nasa said was acts of bad faith in refusing to act on its 12-point reforms agenda dubbed “irreducible minimums”, without which, they said, no poll would take place.
Meanwhile, Nasa maintained that demonstrations against IEBC will go on as planned.
“We expect demonstrations all over the country tomorrow (today) from Mandera to Luanda, to Lamu as earlier scheduled,” Siaya Senator James Orengo said.
Additional reporting by Collins Omulo
If it takes the Nasa view as correct, then the contention by Mr Odinga may prevail.