Tuesday’s withdrawal of the National Super Alliance from the October 26 repeat election throws the ball firmly into the court of the Independent Electoral and Boundaries Commission, which must now interpret what the pullout means as the far as the Constitution is concerned.
The decision by Raila Odinga and Kalonzo Musyoka to pull out of the race, on the grounds that the IEBC failed to meet their demands for electoral reforms before the repeat poll, has created a wave of public concern and even panic in some quarters.
Nasa contends that the effect of the withdrawal is that a fresh election will have to be held, starting with fresh nominations of candidates by political parties.
The essence of this contention is that the subsequent presidential election must involve any other interested parties and the candidates would not be just from Nasa and Jubilee, contrary to what the IEBC had indicated in the Gazette Notice following the annulment of the presidential election of August 8.
It stated that candidates in the fresh election would only be President Uhuru Kenyatta and Mr Odinga.
The interesting dimension of this is that in taking this legal position, Nasa is relying upon a Supreme Court ruling in the presidential election petition judgment of 2013, in which the judges unanimously interpreted Section 138(8) of the Constitution to include a scenario to the effect that a presidential election should be cancelled and a new one held if a candidate or his/her running mate died or withdrew from the poll.
This interpretation is interesting because the textual reference is only to death and does not in any way refer to the withdrawal of a candidate.
Nasa is taking that Supreme Court interpretation as the launch-pad for its contention that a new election must be conducted starting from nominations of candidates.
It deserves mention for the sake of honesty that the Nasa group (then the Coalition for Reforms and Democracy – Cord) attacked the 2013 judgment in such harsh terms that none would have thought that there was any useful determination within it.
Whether this interpretation was correct will definitely be the subject of future court battles in the Supreme Court.
As it is, the legal essence of the 2013 presidential petition judgment stands arguably impugned by the majority decision in the 2017 election petition.
However, for now, the effect of this is that the IEBC had relied on that very interpretation in the Gazette Notice of September 5 in which it declared that the fresh presidential election would be between the President and Mr Odinga.
It may be difficult for it to walk away from this decision and contend that it was wrong.
Therefore, the immediate future will be determined by what interpretation the IEBC makes of the withdrawal.
If it takes the Nasa view as correct, then the contention by Mr Odinga may prevail.
However, the President and his team will likely insist that the IEBC should proceed and declare that President Uhuru Kenyatta be declared re-elected unopposed under Article 138(1), which states that if only one candidate is nominated, then such a candidate shall be declared elected.
This would appear to be the consequence of the withdrawal from a literal reading of that article.
The IEBC could still take the view that the Supreme Court ordered a fresh election between the candidates and that it would therefore have to comply with the its orders and ignore the withdrawal — being that there is no express provision on a pullout by a presidential candidate after a fresh election is ordered.
The IEBC would then go ahead and hold the election by printing the ballots with the Nasa candidate therein and supervise voting on October 26 and thereafter declare a winner.
If president Kenyatta is declared to have won that fresh election, then he would be sworn in for the second term unless another petition is filed.
The only scenario that may be of considerable constitutional anxiety would be if the election is held anyway and the Nasa candidates wins despite having previously withdrawn from it.
It appears that the way forward will depend on what the IEBC decides to make of the withdrawal by Nasa.
Mr Sekou Owino is the Head of Legal, Nation Media Group