NASA leader Raila Odinga’s withdrawal from the presidential election will not stop Kenyans from going to the ballot on October 26.
It looks virtually certain that he will not take part the rerun, whether he formally withdraws or not, and will urge his supporters to boycott what he calls a rigged, sham election.
The ex-Prime Minister Raila departs today for the UK and there are fears he might announce his withdrawal from the UK, and might not return for the poll.
He keeps everyone guessing.
According to Regulation 52(1) of the Election (General) Regulations, Raila would have to formally inform the IEBC that he had withdrawn from the race, within three days after nominations.
The fresh election ordered did not trigger a nomination process and the IEBC declared President Uhuru Kenyatta and Raila the only two candidates through a gazette notice, in effect the nomination.
As Raila has not formally withdrawn from the race formally as required by Regulation 52, he is assumed to be a candidate and his name will be on the ballot.
If Raila had already withdrawn formally, the law (Regulations 21 and 53 of the Elections Act) requires the IEBC declares Uhuru, the only remaining candidate, as duly elected President.
Regulation 21 states: “If at the close of nominations for a presidential election, only one candidate is validly nominated, the Commission shall publish a notice in the Gazette showing the name of the candidate so nominated and stating that the presidential election shall not be held, and the Commission shall declare the candidate elected as President in Form 14.”
Though the Constitution does not expressly speak about withdrawal, Article 138 (1) anticipates a situation where there is a single presidential candidate who, it says, would be decared elected.
In 2013, the Supreme Court sought to answer the question of withdrawal but ended up quoting a non-existent text of the Constitution, Article 138(1)(b), creating even more confusion.
The Supreme Court clarified later, however, that it meant Article 138(8)(b), which speaks of the election being cancelled as a result of death, thus leading to fresh election.
The question remains: Does the death of a presidential candidate have the same effect as withdrawal of the candidate?
Sixteen days from Election Day, Jubilee has pulled out all stops and hit the campaign trail, while NASA has been very quiet and is not campaigning aggressively. Except say in press conferences no reforms, no election.
Mostly no election, we won’t be forced into an unfair contest.
Uhuru and DP William Ruto have campaigning frenetically since their victory was overturned on September 1 by the Supreme Court.
The David Maraga-led apex court found the August 8 poll was plagued by enormous irregularities and illegalities and ordered IEBC to conduct a fresh election within 60 days.
The Jubilee duo has been on a poaching spree targeting Raila’s allies in a scheme to bleed and weaken Raila.
In an apparent statement to his arch-rival, yesterday Uhuru sought to allay anxiety over Raila’s withdrawal plan.
He told Raila that he can bolt if he wants.
“Kenyans are tired and want to move forward. If you do not want elections, step aside so the country can move forward,” Uhuru said at the Coast.