Interview with Steve Ogolla, Election Law Expert
Last Saturday, a new threat of the opposition to prevent the fresh Presidential election on October 26 has emerged. It is different from the boycott threat that a constituency does not vote at all, with the effect of making it an invalid election that was not conducted in all constituencies, as required by Art. 138(2) of the constitution.
The new threat is to violently prevent the voting procedure itself. According to media reports, the IEBC has replied that they can postpone the elections in a constituency out of security concerns.
So: What if the voting in parts of Kenya has to be postponed and finally does not happen? What are the legal consequences?
Ogolla Actually this would a be a clever way of the IEBC helping UHURU to be declared president due to a “suspended” election.
If the election is suspended in a constituency it means results may be declared based on what has been received in the rest of the country. But IEBC must show that there’s actual violence. The law says this is a violent disruption of the election at polling stations. Not violence in homes, villages, or marketplaces far off from polling stations. The Section of the Elections act requires sound judgment, applied judiciously, not based on personal discretion.
RoGGKenya Meaning in simple words: The IEBC has to go to court to decide it?
Ogolla Not necessarily. IEBC is not allowed to postpone election based on rumors and guesswork or passion and discretion.
There must be evidence publicly available, not secretly known to Intelligence agencies. The clearest evidence is an open attack at polling stations or political leaders publicly declaring that they will not allow IEBC to open polling stations. This kind of threshold is difficult to achieve.
RoGGKenya That is confusing. The constitution prescribes that elections have to be held in each constituency to be valid. And now there can be a case where I looked it up, Section 55B(3) of the Elections Act allows the IEBC to declare a president to be elected even when we have not seen any votes from one specific constituency?
Ogolla Yes, that seems to be a contradiction, and it can be challenged in court. Nobody has so far challenged this section of the Elections Act, so we do not know if it is constitutional. It actually overrides Article 138(2) of the constitution. If NASA was wise they could even now preemptively rush to the High Court to interpret the law and tell us, if Section 55B(3) can be applied in a case of a postponement in one constituency. And the IEBC as an institution could ask the Supreme Court for this clarification.
RoGGKenya And if both don’t do it?
Ogolla Then, after a situation of postponement, the IEBC could act upon Elections Act Sec. 55 B(3) and declare one of the candidates the winner if, as this paragraph says, the commission is “satisfied that the result of the elections will not be affected by voting in the area” – for example, if a constituency has 100,000 registered voters, and the winner leads by 300,000 votes in the rest of the country.
RoGGKenya And that would be the final result of the election?
Ogolla Not necessarily. That could also be challenged in court, with the same arguments. But in this case, the new President would have been declared already. In contrast to a case of a successful boycott. If there is not a single vote in one of the constituencies on election day, the IEBC chairman is not allowed to declare any winner.
But now that IEBC has disclosed the possibility of stopping the election in a constituency due to violence, then NASA might ensure people don’t vote in a certain constituency even without violence.