November 23rd 2017

Top Stories / 2017 Elections

Aukot ruling derails Uhuru, Raila game plans, leaves 2017 election more uncertain

"It is common knowledge that the Supreme Court raised key issues touching on the commission. The issues, including action against the bad elements that bungled the election, must be addressed conclusively," he said.

By Phillip MuleeWednesday, 11 Oct 2017 11:43 EAT

Dr Aukot in court for the ruling of his case.

The High Court has nullified the presidential nomination of Uhuru Kenyatta and Raila Odinga for the October 26 fresh election ordered by the Supreme Court. In a case filed by presidential candidate Ekuru Aukot, the court held that the electoral commission IEBC erred in law by organising a rerun election (between two candidates) rather than a fresh election in which all the candidates were eligible.

The decision has further complicated the planning for the election less than 24 hours after Raila, the candidate for opposition NASA coalition, pulled out of the race citing the commission's refusal to provide a level playing field. Both Jubilee and NASA preferred the IEBC's preparation of the election as a re-run and had pegged their strategies on legal outcomes to be triggered by Raila's withdrawal from the race.

Justice John Mativo has directed the IEBC to have the name of Dr Aukot, the Thirdway Alliance candidate, and all candidates who contested the nullified August 8 election on the ballot papers. Consequently the judge ordered IEBC to amend the Gazette Notice it had issued on presidential candidates to contest in the repeat election to include Mr Aukot's name.

Justice Mativo said the Supreme Court ruling in 2013 on the death or withdrawal of a presidential candidate, which would necessitate fresh nominations and elections, is not binding in law. He also varied the period for the filing of nomination papers and conduct of the election, holding that, since the Supreme Court ruling gave the IEBC sixty days in which to conduct the polls, there was no need for fresh nominations.

Legal experts differed on whether the judge was within power to characterise the 2013 ruling as advisory. According to lawyer Morris Kimuli, "the Supreme Court is the Supreme Court. It has given its interpretation of Article 140(3). Only that court can proffer a contrary interpretation. Faced with these two decisions, IEBC can legitimately ignore the decision of the High Court.

"Due to the situation presented by Raila's withdrawal from the race, however, IEBC may want to save the day by including other candidates. If they do that, an election petition will be filed before the Supreme Court. And the election will be nullified. Even when wrong, higher courts will never take kindly any thing that challenges the high honour and veneration of their decisions."

Another lawyer, who has done work for the NASA coalition, said the ruling was misguided, saying that the Court of Appeal and even the Supreme Court itself had held in other cases that the 2013 ruling was binding on lower courts. It was reported that Jubilee Party would appeal the decision. A NASA source also said the coalition would do so.

NASA had opposed IEBC's characterisation of the fresh election as a rerun between the two top candidates and even supported Aukot in court. The coalition lawyer who spoke to Kenya Free Press said they were generally happy with the judge's finding but disagreed with his position that nominations be done by IEBC merely amending the Gazette Notice.

"The judge cannot accuse IEBC of not following the law and then try to be crafty by suggesting that such a flaw as was made by the commission can be corrected by amending a Gazette Notice. Either you have fresh nominations or you don't have them, there is no room for half measures," the lawyer said.

Justice Mativo also ruled, in agreement with Aukot's pleadings, that excluding Aukot from the repeat election is a violation of his rights. The judge rejected an application by the IEBC in the chamber that he should suspend the ruling for the sake of the upcoming election.

Dr Aukot said: "Chebukati (IEBC chairman Wafula) and his commission underestimated us but let me remind him to never underestimate the power of small people. If you do, try sleeping in a dark room with a mosquito."

He continued "As you all know, we have not been campaigning since we were waiting for the court's decision. But now we are vindicated. We have to retreat to see how to engage IEBC going forward."

The politician said a comprehensive statement will follow the discussions and that they will speak on issues including the commission's capability to man the election. 

"It is common knowledge that the Supreme Court raised key issues touching on the commission. The issues, including action against the bad elements that bungled the election, must be addressed conclusively," he said.

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