The dramatic withdrawal of National Super Alliance (Nasa) presidential candidate Raila Odinga from the fresh election slated for October 26 has triggered confusion and sent jitters across the country and beyond.
Constitutional experts, the clergy, politicians, business leaders and diplomats were Tuesday mulling over what the decision means for the country’s political and economic stability.
The Church regretted that the decision would further plunge the country into a “lego-political crisis” and announced it was tasking a team of lawyers to advise it on the full import of the withdrawal before they could advise their faithful.
The General-Secretary of the National Council of Churches of Kenya (NCCK), Peter Karanja, said the country had been in an election mood for “far too long” and there was a need to bring this to an end.
“We are seeking an interpretation on what it means but I believe we are resilient people and so there should be no cause for alarm,” Canon Karanja said.
The head of the Anglican Church, Jackson ole Sapit, announced they would be meeting Wednesday morning to reflect on the full implication of Mr Odinga’s move.
“It is a weighty matter but I will be able to give our position as a church after meeting senior clergy tomorrow (Wednesday),” he said.
The Supreme Court on September 1 annulled President Uhuru Kenyatta’s victory in the August 8 elections after finding that the Independent Electoral and Boundaries Commission (IEBC) did not conduct the poll according to the Constitution and relevant laws.
Subsequently, Mr Odinga has demanded a raft of reforms at the IEBC, conditions he says must be met before he can participate in a repeat election.
Among the demands is the sacking of IEBC officials including chief executive Ezra Chiloba who he says must take responsibility for the annulled polls.
He also wants the ballot papers printer changed as well as the sourcing of a new technology provider as part of the “irreducible minimums” without which, he had said, there would be no election.
“The implication of this provision is that upon our withdrawal, the election scheduled for the 26 October stands cancelled,” Mr Odinga said Tuesday in a statement he signed with his running mate Kalonzo Musyoka and co-principals Musalia Mudavadi and Moses Wetang’ula.
He said his withdrawal requires the IEBC to cancel the scheduled poll and conduct fresh nominations.
“The procedure for nomination of presidential candidates is provided for in the Elections Act 2011, Section 13 (1), which states ‘a political party shall nominate its candidates for an election under this Act at least ninety days before a General Election under this Act in accordance with its constitution rules.’”
This means that whether President Kenyatta is sworn in as Jubilee-leaning politicians and lawyers are demanding, or a fresh election is conducted in three months, the country is sure to endure another period of electioneering during which the economy and other sectors are sure to suffer.
Already the school calendar has been changed more than once.
To push for changes in IEBC, Mr Odinga has called weekly demonstrations that have been intensified from twice to three times a week, leading to closure of businesses in key towns including Nairobi, Mombasa and Kisumu, for fear of looting.
Nasa on Tuesday announced the demos will continue on Wednesday.
Opposition leaders will address a rally at Nairobi’s Uhuru Park before the city demos.
President Kenyatta, on his part, has used his numerical strength in Parliament to introduce amendments to the election laws, which critics say are self-serving.
The changes, which went into the Second Reading on Tuesday, and are expected to be passed by Thursday, include one which lowers from five to three commissioners the quorum for IEBC-decision making sessions.
Another opens the way for any commissioner other than the chairman to be appointed national returning officer who can announce the winner of a presidential election.
However, the law does not work in retrospect, which means any decision on the future of the polls will have to be made based on the interpretation of the current laws.
The Daily Nation understands Nasa partly made the decision to withdraw from the October 26 poll in order to pre-empt effects of the new laws.
Nasa has argued that there will be a need for a caretaker government led by the Speaker of the National Assembly to prepare for election within 90 days.
It has described the status enjoyed by President Kenyatta as “temporary incumbency” as provided for in Article 134 of the Constitution.
But Attorney-General Githu Muigai has dismissed claims of a constitutional crisis should the November 1 deadline for a new poll be passed.
The government’s chief legal adviser said President Kenyatta would enjoy all the powers bestowed on his office until the next head of state is sworn in.
Mr Kenyatta’s supporters will also be pushing the IEBC to invoke Regulations 52 and 53 of the Elections Act to declare him duly elected pending his swearing-in.
The regulation reads: “A candidate who has been nominated may withdraw his or her candidature by delivering to the respective returning officer a notice to that effect in Form 24A not later than three days after nomination.”
Veteran journalist Macharia Gaitho offered that in bolting out, Mr Odinga was seeking to save face on grounds that the IEBC was bound to again hand Mr Kenyatta an undeserved victory.
“That is the boycott, which would rob Mr Kenyatta of some legitimacy, but would not be enough to prevent him taking office for another term, however tainted,” he said.
On Tuesday, Mr Nzamba Kitonga, who chaired the Committee of Experts that crafted the 2010 Constitution, agreed with Prof Muigai that the Constitution predicts a scenario where “a president is in office until another one is sworn in, or he is sworn in for a second term”.
The Supreme Court had in 2013 interpreted what the Constitution meant by fresh elections, and ruled that only the candidate that wins a petition and the one declared president-elect can run in such a poll.
If one dies or “abandons” the quest, the court had said, fresh nominations should ensue.
But in invoking Article 138 (8) b where the Constitution only talks about death as the only scenario for fresh nominations, the court introduced the word “abandons” that Nasa is now using to mean withdrawal.
But Mr Kitonga does not agree with those who think that President Kenyatta should be sworn in after Mr Odinga withdrew.
“You cannot just declare one person as president if one withdraws where there were two candidates, unless it was in the start of the fresh nominations, which happened in May.”
Mr Kitonga said that after Mr Odinga withdrew from the race, there should be fresh nominations.
Reports by Julius Sigei, Patrick Lang’at, Justus Wanga and Ibrahim Oruko
If it takes the Nasa view as correct, then the contention by Mr Odinga may prevail.