February 25th 2018

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Kenya's House Speaker poised to be president as Raila Odinga withdraws from rerun

While the law is clear on how the election process is to be conducted, what is not clear is who would be president of Kenya after November 1, given that Uhuru Kenyatta's 'temporary incumbency' would end on that day and there is no legal way in which he would continue to be president.

By John Onyandojonyando@kenyafreepress.comTuesday, 10 Oct 2017 17:42 EAT

NASA leader Raila Odinga addressing the media accompanied by other coalition officials.

Kenya was plunged into a prolonged electioneering period this evening when NASA presidential candidate Raila Odinga and his deputy Kalonzo Musyoka announced their withdrawal from the planned October 26 presidential election rerun ordered by the Supreme Court. The two cited the electoral commission IEBC's refusal to institute transparency in the election.

Last month, the Supreme Court nullified the initial August 8 presidential election, citing widespread and systematic irregularities and illegalities. NASA leaders followed on the ruling with a ten-point demand, called irreducible minimums, calling on IEBC to make radical changes to the election process, including publishing a Register of voters that wasn't fixed in time for the nullified election.

The opposition also wanted at least six top officials of IEBC suspended and prosecuted for crimes arising from the election. Most of the illegalities were committed by the commission against the opposition's written complaints at various stages of the election including the tallying of presidential results at the Bomas of Kenya.

The opposition also wanted the electoral commission to cancel a contract with Al Ghurair printing company of Dubai, United Arab Emirates, that it claims to have printed at least a million ballot papers in excess of the number of registered voters. These excess papers were likely used in rigging the election, the opposition claims.

The leaders also wanted IEBC to commit to a public inspection of its electronic results transmission system including servers to be used in the election at various stages of the election. They also wanted the commission to commit to a results declaration and transmission system that is verified by political party agents at the constituencies as provided under the law.

Both two provisions above were flouted in the nullified election. For example, the Supreme Court censured the IEBC for refusing to open its server to scrutiny by court-appointed experts. The refusal to open the servers, the majority judges held, could only imply that IEBC was hiding something detrimental to its case.

Raila and Kalonzo had stated unequivocally that they would concede defeat if the results stored in the server indicated that they lost the election. They also circulated results alleged to be from an IEBC whistleblower indicating that Raila won the election.

While not necessarily upholding the opposition's claims, the judges said that the burden of proof at that stage shifted to IEBC to prove that information in the servers actually showed that Uhuru had won. This is because the results transmitted to the servers from the constituencies were final in law and could not be varied at the national tallying centre.

The opposition's decision to pull out of the election sent Kenya into a spin, with electoral and constitutional experts weighing in on the fate of President Uhuru Kenyatta's tenure. Most lawyers, however, have seemed to agree on the finding that the election process will be guided by a Supreme Court ruling in 2013 that held that the pullout of a presidential candidate during the rerun election will result in the whole process being started afresh.

A new election can only be held in early 2018. The opposition would use the intervening period to push for its demands for a total overhaul of IEBC secretariat and realisation of the other changes. It signaled this determination this afternoon when Siaya senator James Orengo announced plans to scale up the weekly demonstrations to press for the changes.

Lawyer Morris Kimuli said, "Uhuru's mandate expired in accordance with the Constitution. He sought a fresh mandate, but his election was nullified. So he did not get a fresh mandate. That mandate can only be given by the people in a general election. IEBC took part of the 2013 decision of the Supreme that said only two candidates should be on the ballot in the repeat poll.

"Now the other part of the decision said if one of the two candidates withdraws, then IEBC has to conduct a fresh election with fresh nominations. The Supreme Court did not say the remaining candidate would be declared President."

While the law is clear on how the election process is to be conducted, what is not clear is who would be president of Kenya after November 1, given that Uhuru Kenyatta's 'temporary incumbency' would end on that day and there is no legal way in which he would continue to be president.

Several opposition leaders have hinted that they will push for National Assembly Justin Muturi, a long-time ally of President Kenyatta's, to take charge of the presidency in acting capacity immediately on November 1 to avert a constitutional crisis. The Speaker would act as president for 90 days as a fresh election is held in which Uhuru, Raila and any other Kenyan qualified to run for president would participate.

Jubilee will be hard pressed to reject that position which is provided by law. In the absence of that, the president would only remain in office outside the constitution. In any event, as a temporary incumbent his powers are extremely curtailed, and he cannot appoint constitutional office holders or command the military.

Another lawyer, Jamal Hassan, says that the only other way a constitutional crisis would be averted is by forming a grand coalition government including all political parties.


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