Why Raila’s move to withdraw makes sense, even if it doesn’t work

National Super Alliance leader Raila Odinga addressing the media at Okoa Kenya offices, Nairobi on October 10, 2017. Nasa announced their withdrawal from the October 26 repeat presidential election. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • While the Constitution is an important and impressive document in many ways, it is neither thorough nor precise where the conduct of elections is concerned.

  • As the Supreme Court itself noted in 2013, “the phrase ‘fresh election,’ as used in Article 140(3) does not tally with its application in Article 138(2) and (3)”.

  • The great challenge for Kenya today is that it is undergoing a political crisis with a new Constitution, whose implications for election management have not been fully settled and agreed by all parties.

Kenyan politics has entered a period of radical uncertainty. With multiple ongoing legal cases and legislation, and multiple different players, it is hard to know whether an election will be held on October 26, and if so who will contest it.

In part, these problems stem from the limited response of the Independent and Electoral Boundaries Commission (IEBC) to the weaknesses identified by the Supreme Court.

In part, they are the result of political leaders who are engaged in a dangerous game of brinkmanship, trying to give themselves as strong a position as possible from which to push for their preferred outcome.

But they also stem from the ambiguities of the 2010 Constitution, and the way it has been interpreted.

Understanding the current electoral crisis requires us to consider how all of these different factors interact.

Only when we do this can we see that Raila Odinga’s decision to withdraw may have been his best option — whether it works or not.

LEGAL LMITATIONS

While the Constitution is an important and impressive document in many ways, it is neither thorough nor precise where the conduct of elections is concerned. Indeed, key clauses both define terms in a way that is different from their conventional usage and deploy them inconsistently.

This is most clear when it comes to the critical term “fresh” election, which is so central to current debates.

As the Supreme Court itself noted in 2013, “the phrase ‘fresh election,’ as used in Article 140(3) does not tally with its application in Article 138(2) and (3)”.

As a result, one cannot know exactly how to run an election simply by reading the Constitution. No matter what lawyers and political leaders may say, further clarification is required.

Of course, this challenge is not unique to Kenya. All constitutions are open to multiple interpretations, and it tends to take decades – if not longer – for judicial decisions to determine how these ambiguities should be resolved.

SOCIAL VALUES

Even then, constitutional interpretation tends to evolve over time in response to changing social values and norms. For example, the decisions of the Supreme Court of the United States of America on issues such as racial equality are very different now than in the past.

The great challenge for Kenya today is that it is undergoing a political crisis with a new Constitution, whose implications for election management have not been fully settled and agreed by all parties. This makes it even more complicated to resolve a disputed election, especially where the main candidates do not trust one another.

Mr Raila Odinga’s decision not to stand on October 26 was in part based on a particular interpretation of what happens when a candidate withdraws from the race, which appeared in the Supreme Court’s 2013 judgement on the opposition’s election petition.

In that ruling, the Supreme Court responded to a request from the Attorney General to clarify a number of issues, including what should happen in the event of a candidate’s withdrawal.

OPTIONS

There were two main options available to the Supreme Court. One was to conclude that Article 138 (1) of the Constitution applied, which stipulates that when there is only one candidate they win without an election being held.

The other option was to argue that a different clause of the constitution – 138 (8)(b) – should be applied.

This clause stipulates that if a candidate dies before the election, a new poll with new nominations must be held within 60 days.

Thus, if a withdrawal is to be treated as if it were a death, the contest would still be held, but later and with a new candidate.

Ultimately, the 2013 court decided to go with the second option. This was an intriguing decision for a number of reasons, not least that it enables any of the candidates contesting the election to disrupt it by pulling out. While Mr Odinga has some good reasons for his withdrawal, this will not always be the case.

The current Supreme Court may decide that giving so much power to candidates, including minor ones, is too risky.

COMPLICATIONS

One reason that the 2013 Supreme Court ruled in this way could be that they were envisaging a “fresh” election contested by only two candidates. In the very next paragraph, the court responded to a question about who is allowed to stand once the initial election has been invalidated by stating that: “The answer depends on the nature of the petition that invalidated the original election. If the petitioner was only one of the candidates, and who had taken the second position in vote tally to the president-elect, then the “fresh election” will, in law, be confined to the petitioner and the President-elect.”

Given that this was the case in 2013, the Court was operating on the basis that nullifying the election result would in a “fresh” election between Kenyatta and Odinga only. In that case, one of the candidates withdrawing would have undermined the whole process, and so the Court may have felt that it would be better to re-open nominations than scrap the contest.

However, the decision to only allow petitioners to contest the “fresh” election is itself being contested. Indeed, the High Court recently came to a very different interpretation in the case brought by Ekuru Aukot, concluding that if the first election is effectively being held again, all of the candidates who contested the original poll should be given the option of standing.

RAILA'S RATIONALE

On this interpretation of the Constitution, it is likely that any “fresh” election would be contested by a number of candidates, and thus the Supreme Court may decide that there is less reason to allow one candidate’s withdrawal to trigger the re-opening of nominations.

Even if the Supreme Court ultimately decides to follow the precedent set in 2013, this might not result in a clear “win” for Mr Odinga personally.

By treating a withdrawal like a death, the Supreme Court was imagining that the candidate had completely left the election. The whole point of reopening nominations was to replace that person, who was effectively assumed to not be taking further part in the electoral cycle: in other words, the Court’s decision was intended for a situation in which a candidate “abandons the electoral quest”.

It, therefore, seems likely that if this interpretation of the Constitution holds sway, Nasa will be expected to nominate a new presidential candidate. This would create a fresh set of issues for the opposition to deal with, most obviously the question of whether Mr Kalonzo Musyoka or Mr Musalia Mudavadi should be its new flagbearer.

HIGH RISK

However, while Mr Odinga’s strategy is high risk, this does not mean that it is illogical or flawed. In a context of a rapidly approaching election, an intransigent government that has introduced problematic legislation into Parliament, and little evidence that the IEBC had the will or the capacity to enact serious reform, the opposition leader found himself caught between a rock and a hard place.

His first option was to stay in the election and contest a process in which he had little confidence. Given the absence of serious reform, the legislation proposed by President Uhuru Kenyatta’s Jubilee Party, and the greater financial resources available to the government, this would most probably have ended in defeat.

Unless the Supreme Court was prepared to nullify the “fresh” election like it did the first – something that is far from guaranteed – such an eventuality would only have legitimated Mr Kenyatta’s presidency and undermined Mr Odinga’s claims that he won the original August 8 poll. Once this had happened, the opposition’s leverage to push for electoral reforms would have been significantly impaired, with serious consequences for the prospects of creating a more level political playing field for the future.

CREDIBILITY

Mr Odinga’s second choice was to pull out of the contest, calling into question its credibility. This was clearly the “nuclear” option, but compared to the first it holds a number of advantages for the opposition. By increasing the political stakes, it places greater pressure on the government and IEBC to respond.

At the same time, Nasa’s withdrawal has allowed it to focus its time and resources on building support for an improved electoral system, rather than an election campaign it was set to lose.

Should this strategy fail, the opposition will still be able to fall back on the Supreme Court’s judgement and argue that it did not lose a contest in this electoral cycle – something that would have been far harder to do if Nasa had stood and lost again.

In other words, Mr Odinga had no good options and chose the one he considered to be the least worst. Many of his complaints are well founded, and even if his name does not end up on the ballot paper he may have made the best choice available in terms of protecting his and his coalition’s interests.

Nic Cheeseman (@fromagehomme) is Professor of Democracy at the University of Birmingham