Legal experts have warned that the country maybe staring at another coalition government following the decision by the Supreme Court to annul the presidential elections.
According to experts who spoke to Nation, the Supreme Court found the Independent Electoral and Boundaries Commission (IEBC) responsible for the illegalities committed during the August 8 elections.
This is what has led to demands by the National Super Alliance (Nasa) for the resignation of the IEBC officials, which according to the experts, may end up throwing the country into a constitutional crisis that could demand for another power-sharing deal between the Jubilee and Nasa.
After Friday’s verdict delivered by Justice Maraga, Nasa presidential flagbearer Raila Odinga said he would not participate in a fresh poll if the current IEBC commissioners remain in office.
While the top court in the land ordered IEBC to organise a fresh poll in 60 days, it was silent on the composition of the commission and if any changes were necessary.
Legal experts argue that the judgment put the country at crossroads since any extension of time past the 60 days set by the Constitution will demand for an interim or a care-taker government.
Mr Steve Kabita, a senior constitutional law expert, in an interview with Nation said Kenya was facing a bleak future as far as the restructuring of the electoral commission is concerned.
In his view, the consequences of the Supreme Court, which faulted IEBC in the election, are dire than what appears at face value.
“After the IEBC was indicted for the irregularities committed in the August 8 elections, the opposition may not agree to have the same people conducting fresh elections as ordered by the court,” the lawyer said.
He, however, warned that any action by the opposition to have the commissioners replaced will be detrimental to the electoral process.
New appointments, he said, may not be possible within the limited time.
He argued that it was impossible to appoint a new commission within the stipulated time since all the institutions involved are not properly up and running.
“The new commissioners cannot be appointed in the status quo because Parliament, which is involved in the vetting, is not properly constituted without the president,” he said.
Another lawyer Gordon Ogolla shared similar views, saying the verdict was likely to see the nation operate under a caretaker government.
Mr Ogola argues that the tainted image of senior IEBC commissioners could see some of them bow to pressure and resign— leading to a vacuum in the electoral body.
“With the sentiments that we are hearing from both sides of the political divide, it is likely that some commissioners could succumb to pressure,” the lawyer observed.
He argued that if commissioners resigned, that would mean more time would be required to vet and recruit a new team, which would take a lot of time Nasa-Jubilee wars.
“This will create a constitutional crisis because the Constitution does not provide what should happen in case a fresh election is not conducted within the stipulated 60 days after the court ruling” said Mr Ogola.
Should this happen, the country would be at the mercy of politicians, the lawyer said, adding that the most likely way of sorting matters out would be brokering a power sharing arrangement between the political rivals.
The sentiments came as leaders allied to the Jubilee Party, led by President Kenyatta, stated categorically that power sharing was not an option for them and rubbished the suggestion to settle for a coalition government.
Lawyer David Mong’eri, a former chairman of the Law Society of Kenya Rift Valley, however, argued that since the court did not find IEBC chairman culpable of the electoral fraud, the commission may only be required to make few changes in the technical team.
Mr Mong’eri said it would not be easy to change the seven commissioners who are legally in office.
“The court directed the IEBC to conduct a fresh election within sixty days and it cannot be possible to remove all the commissioners from the office,” said Mr Mong’eri.
“The chairman can restructure technical team and have the elections conducted.”
The legal experts have warned that the exercise would be costly to country and could adversely affect its economy.
Kenya's first coalition government between Mwai Kibaki's Party of National Unity and Mr Odinga's Orange Democratic Movement was precipitated out of the political turmoil that followed the disputed 2007-08 General Election.
It came to an end in March 2013.