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https://www.the-star.co.ke/news/2017/10/11/uncertainty-as-raila-withdraws-from-oct-26-poll_c1650307

By:

FELIX OLICK and LUKE AWICH

Posted:

Oct,10-2017 23:20:14

Opposition chief Raila Odinga yesterday dramatically withdrew from the presidential rerun and cited a 2013 Supreme Court ruling to scuttle the October 26 vote.

President Uhuru Kenyatta insisted elections must go on.

The Raila shocker, which could push the repeat election to March 2018, threw Kenyan politics into uncertainty.

The IEBC yesterday announced it had assembled it legal team to study implications of the withdrawal.

There has been much speculation about a boycott or Raila withdrawal and possible constitutional crisis. NASA has repeatedly said, no reforms, no election.

"Following withdrawal of NASA's presidential candidate, the Commission and legal team are meeting and will communicate way forward," Chairman Wafula Chebukati said.

Various lawyers yesterday said IEBC may be forced to call off the election because Article 138 of the Constitution says an election will be between two or more people.

It was not clear how this should be interpreted, considering the Supreme Court ruling om September 1 nullifying Kenyatta's victory on August 8. The court ordered a fresh election within 60 days. That period ends this month.

In pulling out of the race, the ex-Prime Minister said IEBC had blatantly refused to implement its 12 irreducible minimums. He declared it was clear the repeat polls will be worse and less credible than the August 8 poll.

Raila has demanded removal of secretariat staff that bungled the August vote, removal of IT provider OT Morpho as well as ballot papers printer Al Ghurair. None of those has been granted.

"After deliberating on our position in respect of the upcoming election, considering the interests of the Kenyan people, the region and the world at large, we believe that all will be best served by NASA vacating its presidential candidature in the election scheduled for 26 October," Raila announced.

He was flanked by co-principals running mate Kalonzo Musyoka, Musalia Mudavadi and Moses Wetang'ula.

Raila said the "same criminal enterprise" that rigged the Augustvote is still firmly in charge and now setting up "more lethal mechanisms" to steal the vote. The four read the statement in turns.

Raila laid the blame squarely on IEBC CEO Ezra Chiloba.

"The Commission CEO who was the coup plotter-in-chief and his litany of senior secretariat staff continue to dominate the operations of the commission and stifle any attempt to initiate reforms at the commission," Raila said.

Referring to the split that has rocked the IEBC, Raila claimed jubilee is firmly in charge of IEBC through four commissioners.

He termed unconstitutional Jubilee's proposed election law amendments and blasted Jubilee for clamouring for an election that it must win, even unlawfully.

In a well-calculated legal strategy, Raila and his NASA brigade have cited the 2013 Supreme Court ruling "which dashed his own presidential ambitions" to scuttle the October 26 rerun.

Raila cited paragraph 290 of the ruling in which the six-member bench led by Chief Justice Willy Mutunga ruled that if a candidate withdraws, the election stands postponed.

The paragraph states: "Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138(8) (b) would become applicable, with fresh nominations ensuing."

Ironically, this constitutional citation, which now appears to be an arsenal targetting Jubilee, had been sought then by Attorney General Githu Muigai, the government's chief legal adviser.

According to NASA, the implication of that ruling is that upon their withdrawal, the election scheduled for the 26 October stands cancelled.

"Our withdrawal requires the IEBC to cancel the election and conduct fresh nominations.The procedure for nomination of presidential candidates is provided for in the Elections Act 2011," the NASA statement said.

The Elections Act states that political parties must nominate their presidential candidates at least 90 days before a general election.

This means that if IEBC complies with NASA's interpretation of the law, the new election will be held next year.

"It is clear this provision gives adequate time to undertake the reforms necessary to conduct an election that is in strict conformity with the Constitution and the relevant laws," Raila said.

"This being the case, it is our conviction our withdrawal is in the best interest of the country and a win-win for everyone."

But speaking in Voi, a clearly agitated Uhuru said the election will go on as planned, as it was not a must for Raila to be on the ballot.

"We are ready whether he is on the ballot or not. It is the people's right to participate in an election to choose their leader. Whether you are there or not, we are proceeding to the people who have sovereign right to elect leaders of their choice," Uhuru said

"There is nowhere the Constitution saying Raila Amolo Odinga must be on the ballot. Nowhere it is written, so when you are tired of the journey, relax and let others proceed."

Uhuru said no one individual can stand in the path of progress of 45 million Kenyans.

"Therefore, we expect on October 26 the election will go on and Kenyan people will determine their leader," he said.

It would appear, however, that Jubilee was well aware of this provision when one of its MPs dashed to court to compel Raila to participate in the rerun.

Pokot South MP David Pkosing argued that a NASA boycott would trigger a constitutional crisis.

In the controversial amendments tabled in the National Assembly for debate yesterday, Jubilee seeks to make it law that if Raila withdraws, Uhuru will be sworn in as President.

"An eligible candidate for election for an election pursuant to Article 140 (3) of the Constitution may withdraw from the election by notice in writing to the Commission," the proposed amendment says.

It goes on: "Where only one candidate remains after the withdrawal, the remaining candidate shall be declared elected forthwith as the President-elect without elections being held."

Raila said international actors who have supported Kenyans in their quest for democracy and good governance are appeasing dictatorship in the mistaken belief it will maintain stability.

Source:

The Star