Kenyans will go back to the ballot on October 17 in a fresh poll that has now been narrowed down to a gruelling rematch between President Uhuru Kenyatta and his arch-rival Raila Odinga.
The Independent Electoral and Boundaries Commission (IEBC) announced the date just three days after the Supreme Court annulled its declaration of President Kenyatta as the validly elected president following a petition by Mr Odinga.
“A fresh presidential election shall be held on October 17, 2017.
"This is in conformity with the Supreme Court decision annulling the presidential election on August 8, 2017,” IEBC chairman Wafula Chebukati said in a press statement on Monday.
In choosing to have a rematch between President Kenyatta and Mr Odinga and locking out the other six candidates, the IEBC, in its decision, followed an interpretation of what a fresh election means, a judgment that was offered by the Dr Willy Mutunga-led court in 2013.
“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,” the court said in its judgment.
It went on: “And the candidate who receives the most votes in the fresh election would be declared elected as President.”
The Dr Mutunga judgment, however, could raise another bombshell: Just what does “most votes” mean in the threshold for declaring a winner in such a poll?
On Monday, Nasa lawyer Paul Mwangi seemed to agree with Senior Counsel Paul Muite that one will only be declared winner if he hits the constitutional threshold of 50 per cent plus one vote and at least 25 per cent of the votes in at least 24 of the 47 counties.
“The effect of the Supreme Court judgment is that there was no election on August 8.
"They said: You did not do the election, now go and do it. It can’t be a run-off where a simple majority applies. It is a whole new election with the requirements that the August 8 one had,” Mr Mwangi said.
Mr Muite, who represented the IEBC, had however said that Thirdway Alliance Kenya presidential candidate Ekuru Aukot should be included in the fresh poll as he opposed its outcome.
“The court said there was no election, and so it is not a run-off hence the winner must get 50 per cent plus one vote and at least 25 per cent in at least 24 counties.
"Two, Dr Aukot will be a candidate since he supported the petition,” Mr Muite said before the declaration by the IEBC was given.
Dr Aukot on Monday was threatening to go back to court after he was locked out.
“(The) decision by IEBC to lock other presidential candidates out of the fresh elections is invalid, illegal, and null and void. We are headed to court,” Dr Aukot said on Twitter.
In the statement, Mr Chebukati vowed to go on with the purge on the commission secretariat, which he promised will happen before the October 17 poll.
“The commission is revising the operational and procedural requirements for the conduct of the fresh elections,” Mr Chebukati said.
He called on the Supreme Court to hasten the writing of its judgment, which the apex court had said will be out within 21 days of its ruling.
Mr Odinga’s Nasa has called for the sacking of IEBC chief Executive Ezra Chiloba, voter registration director Immaculate Kasait, head of legal Praxedes Tororey, Ms Betty Nyabuto of operations and ICT director Andrew Muhati.
Apart from the sackings, if any, the commission will also have to reconfigure its 40,883 kits that were used for voter identification and results transmission.
Further, the commission might have to gazette new constituency returning officers in areas where the August 8 ones will be indicted by the yet-to-be-released Supreme Court judgment.