Five legal Paths to “No-Election” on October 26

Legal expert Steve Ogolla has identified with us five legal ways why the election day Oct.26 might be canceled by a court and has weighed the likeliness of such decisions. To shed light on the heated debate, we are leaving out all the political arguments for and against a postponement and just cite the legal arguments.
When reporting as a journalist, kindly ponder the original sources linked below.


1). ABRUPT RESIGNATION BY CHEBUKATI AHEAD OF THE ELECTION

If Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati steps down well in advance of the election, a court will have to decide if the Presidential Election may take place without the Chairman who also is the National Returning Officer for the presidential election.
While the IEBC Commission may offer critical support and oversight, it is the legal duty of the National Returning Officer, who is the accounting officer, to coordinate, prepare and conduct the presidential election.
So, if the chairman resigned abruptly abandoning the preparation midway, it is highly likely the court will interpret the Constitution in a manner that allows postponement of the election to a future date.
However, if Chebukati steps down late, on election day, while voting is underway or finalized, the question of receipt, verification, determination, and declaration of the presidential results may be posed to the courts for direction.
The court may then hold that the Vice-Chairperson or any Commissioner be deemed as the Chairman for the limited purpose of determination and declaration of the presidential results. The election would therefore not be postponed.

2). PETITIONING COURT FOR POSTPONEMENT

It is open to IEBC to seek an Advisory Opinion from the Supreme Court. The chairman of the IEBC does not need to have the majority of the commission behind him to file it at the Supreme Court. Also, any voter may move to the High Court to seek postponement of the election.

The case for the postponement is founded on the fact of IEBC Commissioner Roselyn Akombe’s abrupt resignation and now publicly available internal memos decrying external political interference and internal partisan posturing by some Commissioners and senior staff at the Secretariat have cast significant doubts on IEBC’s ability to deliver free, fair and credible election.

Chebukati has openly stated that he finds it “difficult to guarantee free fair and credible elections.” In a shocking move, just one week before the elections, Chebukati is publicly asking his staff who have been “adversely mentioned”, to “step aside.” His CEO Chiloba has already done it. Further, he was emphatic that “he cannot move forward with a divided commission” or move forward, “when Presidential candidates refuse to put their personal interests aside”. (Source: IEBC press release (pdf, external link).
A court order would scrutinize and evaluate the revelations and may stop the elections for now. The court may weigh the revelations against, among others, the constitutional right of every citizen enjoy “free, fair and regular elections” (source: Constitution Art 38 (2) ).

3). DETERMINATION OF APPEAL OF THE EKURU JUDGMENT

The Court of Appeal might find merit in the legal arguments that the Judgement in the Ekuru case of Oct. 12 cannot be implemented immediately.

This would happen if the Court of Appeal accepted the argument that Raila’s withdrawal was founded on the 2013 Supreme Court Judgment in the Raila Odinga case (see our download page). It provides, at paragraph 290, that if there are only two candidates and one abandons the contest, then the election is canceled and fresh nominations ensue. It is the Petitioner’s case that at the time of Raila’s withdrawal, this was the law in place, and its consequences must, therefore, be explained to the public.

However, the counterargument is that in terms of timelines, the Ekuru case was filed well in advance of the Raila withdrawal, and therefore it was reasonably expected that the judgment would alter the law on Fresh Election and its bindingness would cover the entire 60-day period during which the Fresh Election must be conducted. Additional Sources: the Raila-Petition and to the Ekuru judgment, para 73 (both on our download page).

4). A SUCCESSFUL PEACEFUL ELECTION BOYCOTT

According to Article 138 (2) of the Constitution, a presidential election has to be conducted in each constituency.
It is a highly likely interpretation that a constituency with not a single voter turning out would not be counted as one in which the election has been held. This argument is founded on the Black’s Law Dictionary definition of the result of election, which is the “will of the voters as determined by a count of the ballots.”
But an opposing view holds that the court must interrogate the reason for zero turnout in the entire Constituency and depart from the textual analysis of Article 138 (2). If the court finds that there was a clever design to manipulate the Constitution for partisan benefit, it could adopt a more purposive reading of Article 138 (2) and determine that the election to be deemed to have been conducted as per the Constitution.

5). IEBC POSTPONEMENT OF CONSTITUENCY ELECTION

In the event, that the IEBC Chairman determines that there exists a climate of fear amongst IEBC election officials in some constituencies or that there is a highly probable chance of disruption of voting on election day, he may postpone the election in the affected constituencies.

Section 55B of the Elections Act allows the Chairman to postpone election in a constituency, for reasons stated, and proceed to conduct elections in the remaining constituencies.

Further, this Section allows the IEBC to declare a winner anyway if any voting result in the affected constituencies would not have changed the outcome.
That paragraph (5) might be unconstitutional because it contravenes Art. 138 (2) (see above).  However, the counter-argument is equally strong: Section 55B is the cushion against abuse of Article 138 (2).

Not to forget:

After an election, the outcome can again be declared unconstitutional by the Supreme Court, just as the August 8, 2017, election. Therefore, it is risky to conduct the elections without considering the possible reasons for a successful petition – reasons Chebukati has already hinted to (see above under “Second Way”).