Regulation 64 of the Elections (General) Regulations 2012 clothes Wafula Chebukati, as the Chairman of the Independent Electoral & Boundaries Commission and the Returning Officer of the presidential elections, with the power to adjourn the presidential elections.
The power to adjourn can and should be exercised as the presidential elections are clouded by legal uncertainty. They are also likely to be interrupted by riot, violence, shortage of equipment or other materials, and administrative difficulties.
By his own public confession, the chairman has admitted that IEBC is unable to conduct an election that squarely meets the threshold of the Constitution and the law. There is also no law in place to govern the procedure for the conduct of the fresh presidential elections.
After the invalidation of the August 8 presidential elections, IEBC gazetted only two candidates for the fresh presidential elections. The commission was relying on the opinion given by the Supreme Court on April 16, 2013 following the first presidential election petitions filed under the 2010 Constitution.
The 2013 Supreme Court stated that any fresh election, like the one scheduled for Thursday, would be between the candidate declared winner, and the candidate(s) who challenged the election at the court.
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The 2013 court also held that if there was a withdrawal by a candidate before such a fresh election was conducted, then fresh nominations would follow.
The Leader of the Opposition, relying on the opinion of the 2013 Supreme Court, withdrew his candidature on October 10, 2017.
On the date he withdrew, the law as stated by the Supreme Court required IEBC to carry out fresh nominations. IEBC’s decision that such a withdrawal should have been under Form 24A was wrong, doubtful, or can be the subject of a different interpretation.
Regulation 52 (1), that requires a candidate who withdraws to do so by giving notice under Form 24A, only applies to elections conducted after a nomination process. There were no nominations carried out for the fresh presidential election of October 26, 2017.
On October 11, the High Court faulted the opinion of the 2013 Supreme Court and declared that all candidates in the August 8 elections had a right to be included in the fresh election. The High Court also held that there was no requirement for fresh nominations for the fresh presidential elections.
By the time the High Court pronounced this on October 11, there was only one presidential candidate left as the judgment was given after the withdrawal by the Leader of the Opposition.
In deciding what a “fresh presidential election” under Article 140 (3) of the Constitution means the High Court disagreed with the advice of the Supreme Court.
However, the High Court could not reverse the actions and decisions that had been made prior to October 11 including the withdrawal of one of the two presidential candidates or IEBC’s duty to conduct fresh nominations following the withdrawal.
The Chairman should not conduct a presidential election in the face of such legal uncertainty or the administrative challenges he has admitted to. He can and should adjourn the presidential elections and move to the Supreme Court for advice under Article 163 (3) (a) and (6) of the Constitution.
The chairman is the returning officer of the presidential elections under Article 138 (10) of the Constitution and Section 39 (1D) of the Elections Act.
He is not beholden to and does not require the consent of the commission, the commissioners, or the secretariat to adjourn and move to the Supreme Court. Though he is obliged to consult, whatever decision he makes concerning the presidential elections can only be vetoed by the Constitution, the law, and the courts.
The writer is an advocate of the High Court of Kenya. finclegal@hotmail.com
