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.
FRESH NOMINATIONS
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
http://www.nation.co.ke/oped/blogs/dot9/franceschi/2274464-4138182-pr4m92/index.html