We are not yet in a constitutional crisis. We would be in a constitutional crisis if Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati resigns or if the Chief Justice decides not to swear in a new president.
Wachira Maina has put it very well in a piece he sent me Wednesday. We are in a political crisis, and political crises demand political solutions.
This is why Parliament has jumped in to amend some laws that could land us in a constitutional crisis any time.
Why amend laws now when the race is fast moving? Certainly, it may not be the best moment to do so, but I sense that politicians are trying to avert a constitutional crisis, where there is already a political crisis.
If the political classes are not on talking terms we will go around in circles for ever. We will blame the Constitution, judges, the law and the lawyers, but it all comes down to the politicians and their political ambitions.
This week, Kenyans got a drastic shock. We have been thinking there was a light at the end of the political tunnel, and it looked closer and closer. Alas, it was an on-coming train.
Raila Odinga announced his withdrawal.
There was shock and panic. As we were still stunned, and before we could react, Ekuru Aukot, a presidential candidate on August 8, was given the green light to run. It is overwhelming, exciting and scary at the same time.
Everyone’s reaction was to ask, “what does the law say?" "What will happen?" "Who is going to Court next, apart from Okiya Omtatah Okoiti, who has already petitioned that everybody should be barred from declaring Uhuru Kenyatta president elect?"
It may look like a circus, and there is truly a circus-like approach in all this. The Constitution left many loose threads, unending circular equations and fresh and new unclear terms, and the courts have also been a little bit too innovative.
In any case, Kenya is maturing. No matter on which side we stand on, the rule of law is sinking its roots in Kenya, and courts are free to decide against the status quo.
In many African countries, a decision against the Executive may mean exile from home or from the world.
Many African countries still suffer from judicial hypocrisy, which is the need to consult higher powers and request direction before deciding. Judges go through the pain of dressing up the lie as an elegant truth, supported by whatever laws they can lay their hands on to hide the injustice.
In those countries, people take judicial decisions for granted. Everyone knows the outcome even before the courts open their mouth. Not so in Kenya, where the rule of law matters.
Today, in Kenya, courts are largely unpredictable, and no matter how politically obvious the case may look, nobody knows the mind of the judge before a sentence is passed.
This has turned Kenyans into amazing "lawyers". For the past two months, everyone has been discussing constitutional and electoral laws with remarkable expertise.
Judicial independence, constitutional commissions and electoral laws have become the choice topics in most drinking joints and hair salons.
In Kenya, we have a very amusing gift; the gift of being shocked at what is obvious. It is going to happen, then it happens and we are shocked all the same.
Raila had been saying it all along, “no reforms, no elections” but nobody had taken him seriously. Only a handful of experts, some of them directly involved in the legal mayhem, had considered this possibility.
The fact is that Raila’s decision is what is usually called a boycott. Election boycott may mean two things.
One, a candidate may withdraw his nomination from the electoral body, according to the rules, declaring loss of interest to vie for the position. This is de jure boycott (boycott according to the law).
Alternatively, the candidate may not legally withdraw his candidature but may in fact call on his supporters to refrain from casting a ballot on the election day. This is a de facto boycott.
Only the former (de jure boycott) carries legal consequences.
In 2013, the Supreme Court said, “Suppose, however, that the candidates or a candidate that 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…” (The original judgment read 138 (1) (b), but this typo was later corrected).
Here the Supreme Court expanded the original meaning of article 138. Personally, I did not agree with this view of the Court. I always thought that the Court had gone a little too far by stressing something the Constitution never said.
The Constitution had only mentioned death, but the judges placed it on a par with withdrawal. If the Constitution had kept silent in matters of withdrawal, then it would be dealt with by Parliament, through legislation.
RISK IT ALL
Justice Mativo clarified, in last Wednesday’s decision on the Aukot case, that the Supreme Court mentioned this as a “by the way”, which in law we call an “orbitem dictum”, something the courts mentions in passing, but that it is not essential to the case and does not form part of their binding decisional authority.
Mativo also said that this paragraph (290) should not be read without its context and given a pre-eminence the Court did not intend it to have.
It was precisely this paragraph that encouraged Nasa to abandon the current race. Raila Odinga hoped that abandoning the race would lead to fresh nominations. For better or for worse, we are face to face with a delicate case of misinformation and miscalculated judicial independence.
Odinga was between a rock and a hard place: the political crisis was not achieving its desired ends and only a constitutional crisis could stop Jubilee. Such a crisis could only come about in two ways.
One, by pushing for a new IEBC. With a temporary incumbent president, no appointments could be made. If the IEBC yielded to pressure and resigned we would find ourselves in a quagmire; no IEBC, no elections.
As this did not work, Raila decided to risk it all and activated the second mechanism, the withdrawal. By withdrawing from the contest and citing paragraph 290 of the Supreme Court 2013 decision, he hoped fresh nominations would ensue.
It seems to me that Raila miscalculated his move on two accounts. First, by announcing his withdrawal he had hoped the IEBC would be obliged to call for fresh nominations.
As Justice Mativo explained, paragraph 290 of the 2013 decision, has to be considered in a context and as a “by the way” (orbiter dictum) clarification that lacks the strength of binding authority.
Second, if we insist that paragraph 290 of the 2013 decision should still apply, then the withdrawal should be done in accordance with the election rules.
Just imagine what would happen if the withdrawal could be done at any time and this would call for fresh nominations? Then, any candidate upon facing imminent loss could withdraw, even a day before the elections.
Would fresh nominations ensue because a candidate withdrew even with a day to elections? This would be a terrible weapon to frustrate any election and mess up any opponent. This makes no sense; more so in a “winner takes it all” system.
There are procedures established by the election regulations. Suppose that we agreed with the Court’s view that a withdrawal calls for fresh nominations, then this withdrawal must be effected procedurally.
The procedure is laid out by the election regulations, which requires that formal withdrawal should be presented within three days of the nominations having being gazetted.
After the gazette notice was published on September 5, Raila Odinga had three days to withdraw, which would have caused a major crisis because IEBC would have been required to call for fresh nominations. But this did not happen.
Justice Mativo has ordered a fresh Gazette notice or amendment of the Gazette notice of September 5 to include Aukot’s name in the fresh election scheduled for “September 26” (he meant October 26).
DE FACTO BOYCOTT
Could Raila make use of this new Gazette notice to withdraw? It seems not, for the judge directed the change with the very specific aim of including Aukot. IEBC has gone a step further to include all other candidates.
This means that, like it or not, Raila’s withdrawal is a de facto boycott just like the one Winston Tubman played in the 2011 Liberian run-off election. The election proceeded, however, and Ellen Johnson Sirleaf was declared the winner with a whopping 90 per cent of the vote.
Really, the big winner in Raila’s de facto boycott is Dr Ekuru Aukot, whose fame will shoot up as the likely runner-up in Uhuru’s re-election. Whatever the case, Raila Odinga's name will still be on the ballot.
We are in a political crisis. We need politicians ready to dialogue, with magnanimity, thinking big for the country, and humility, thinking small for themselves.
In this piece, I have tried to explain the legal implications of an intricate political situation. I hope this explanation helps our leaders to sober their stand and think of the country, no matter on which side of the divide they stand. Their short-term gain will be our long-term pain.
Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi