Boycotting election doesn’t invalidate it

Kenya is gearing for a fresh presidential election following the nullification by the Supreme Court of the presidential poll held on August 8.

However, the Nasa coalition has been threatening that the repeat presidential election will not be held on October 26 if their demands, including removal of certain officials in the electoral body, are not met.

The threats by Nasa amount to a subversion of the Constitution. The mandate to conduct elections in Kenya lies with the Independent Boundaries and Electoral Commission (IEBC). Only the IEBC can declare when an election will be held.

Now assuming Nasa leader Mr Raila Odinga asks Nasa supporters to boycott voting on October 26, will that necessarily invalidate the fresh presidential election?

The procedure for a presidential election is well laid out in Article 138 of the Constitution. Article 138 (2) provides that where two or more candidates for President are nominated, an election shall be held in every constituency.

VOTE

The court decision in the case of the IEBC versus Maina Kiai and another affirmed that position. Article 138(3) states that “in a presidential election, all persons who are registered as voters for the purposes of the parliamentary elections are entitled to vote”. Also, Article 38(3) says, “every adult citizen has the right, without unreasonable restrictions, to be registered as a voter and to vote by secret ballot in any election or referendum.”

In order to ensure that voters exercise their right to vote, Article 83(3) provides that “administrative arrangements for registration of voters and conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.”

It is clear that even if Mr Odinga were to refuse to participate in the repeat poll and demand the same of his followers, this would not necessarily invalidate the October 26 election. Another important point to note is that voting is not mandatory in Kenya. This means one is at liberty to waive their right to vote for personal reasons.

Also, the Constitution does not prescribe a minimum voter turnout in a presidential election.

PRESIDENT

All it says in Article 138(4) is that a candidate shall be declared elected as President if he or she receives more than half of all the votes cast and at least 25 per cent of the votes cast in each of more than half of the counties (meaning 24 counties).

Therefore, the constitutional threshold for a presidential election is the votes cast and not the turnout at a particular polling station. The presiding officer will count the votes cast, fill out the Form 34A and transmit this to the constituency and national tallying centres.

In short, the Constitution does not require all registered voters to vote in an election. A voter or even a sizeable number of voters are free to waive their right to vote. But refusal by some to vote on the basis ‘agitation’ or ‘disruptive activities’ of certain political elements does not render an election invalid as long as the constitutional requirements and threshold are met. Nor can a candidate who incites his followers to boycott an election for whatever reason claim there is no election.

CONSTITUTIONAL CRISIS

The only option left would be for Mr Odinga is to pull out of the race just before October 26 with no time left for IEBC to conduct a fresh presidential nomination with the sole aim of plunging the country into a constitutional crisis.

The amendments to the electoral law tabled before Parliament last week seek to deal with such a scenario by stipulating that a candidate wishing to withdraw must do so in writing to the IEBC chairman, in which case the remaining candidate is simply declared winner.

This will save the country the enormous trouble and cost of going into another election because of Nasa’s misguided strategy aimed at subverting the Constitution by grabbing power through the back door.

 Mr. Ichung’wah is the MP for Kikuyu Constituency