The presidential election of October 26 was conducted under many clouds: Uncertainty on the law, threat of violence, the withdrawal by the NASA presidential candidate and the boycott of the elections by NASA’s support base.
The reasons given by the Supreme Court in upholding the decision of the Independent Electoral and Boundaries Commission (IEBC) to conduct the fresh presidential elections on October 26th and declare the President and his candidate as the winners are as follows:
Any person, including a corporate entity can file a presidential petition. It is not a requirement that you must participate in the presidential election either as a candidate or voter for you to have the right to challenge the declaration of the winner by the IEBC.
Fresh nominations are not necessary for a fresh presidential election conducted following a nullification by the Supreme Court of a previous presidential election. Nominations are only necessary for a presidential election conducted during a General Election and when there is a vacancy in the office of the President.
The electoral commission was correct in including the name of Cyrus Jirongo amongst the candidates in the fresh presidential election as the High Court had on October 23rd temporarily stopped the order declaring him bankrupt.
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The Supreme Court’s decision in 2013 on nominations of candidates for a fresh presidential election following a nullification by the Court was only hypothetical and the High Court was correct in disregarding it when it cleared Dr Ekuru Aukot to contest in the presidential election of October 26th.
The Supreme Court’s decision in 2013 that the withdrawal of a presidential candidate in a fresh presidential election would lead to its cancellation was wrong.
The Constitution only provided for cancellation of a fresh presidential election where no candidate was nominated, where a presidential candidate or his deputy died, or if the presidential candidate or his deputy who were duly elected died before his declaration as the winner of the election.
The NASA presidential candidate’s withdrawal was valid as no candidate could be forced to take part in an election. However the inclusion of his name in the ballot paper did not affect the legality of the election. Further, his withdrawal did not have any effect on the election that was conducted thereafter.
The failure to vote in 25 constituencies could not be blamed on the Government or the IEBC. It was the result of acts of violence and intimidation by civilians and political actors. This did not affect the validity of the presidential election.
The violence and intimidation by citizens and political actors in 25 constituencies was meant to and prevented registered voters in those constituencies from voting. The Supreme Court could not invalidate the election on the basis of such violence and intimidation as this would have the effect of sanctioning and legitimising deliberate schemes to invalidate a presidential election.
The electoral commission was correct in its declaration of the President and his deputy as duly elected regardless of the fact that there was no voting in 25 constituencies.
The Constitution and the law allowed the Chairman of the Commission to declare the winner with incomplete results where the remainder of the results would not affect the eventual result.
The low voter turn-out of 38 per cent of registered voters did not affect the legality of the presidential election as the winner and his deputy had met the minimum requirements for election under the Constitution.
The most important lesson from the two decisions by the Supreme Court following the two presidential election petitions is that though justice is blind, the laws and the courts do not operate in a vacuum and will always remain alive to the environment surrounding the matters brought before it.
- Kethi D Kilonzo, is an Advocate of the High Court of Kenya. finclegal@hotmail.com
