When Raila Says There is No Election -Has he Plotted This With Chebukati

Politics
nowayhaha
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When Raila Says There is No Election -Has he Plotted This With Chebukati

Unread post by nowayhaha » Fri Sep 22, 2017 2:24 pm

Is it the reason AG came out saying there will be no vacum and Uhuru will still be the president , Is it the reason Raila came out gun blazing attacking the AG.

https://www.standardmedia.co.ke/article ... ks-to-iebc

Following the decision made on September 1 by majority of the Supreme Court judges to nullify the August 8 presidential election, the IEBC notified the public that a fresh election will be held on October 17.

In a gazette notice, the IEBC also notified the public that there will be no nominations for candidates participating in the fresh election, and relying on the 2013 decision of the Supreme Court in Raila Odinga’s presidential petition, declared the contest will be between Uhuru Kenyatta and Raila Odinga.

ALSO READ: Fundamental changes a must for IEBC to run a credible poll

From both practical and public interest points of view, IEBC’s position presents the ideal scenario -- what Attorney General Githu Muigai calls best political outcome -- except for three complications that may have minor or devastating implications on stability of Kenya’s political order.

Run-off or fresh polls?

The first complication is that in its 2013 judgement, the Supreme Court did not render any decision on the basis of which IEBC can rule out fresh nominations and confine the contest to Uhuru and Raila. In my view, what the IEBC refers to a “decision” is at best a legislative proposal by the Supreme Court. I will shortly explain this minor complication.

The second complication is fairly serious because it could easily lead to nullification of the fresh presidential elections. The explanation may sound complicated but it is fairly simple when you grasp the essence of the fresh election pursuant to Article 140 of the Constitution. The procedure for presidential election is set out in Article 138, and for purposes of this article, two things should be noted.

First, nomination of candidates is a precondition for the election of president pursuant to Article 136 or in the event that such election is cancelled in the circumstances set out in Article 138(8). Secondly, in the event of a fresh election as contemplated in Article 138(5), no fresh nominations are necessary because such fresh election is actually a run-off and merely a continuation of the initial election that has not produced a winner. This run-off must be held within 30 days of the previous election.

ALSO READ: IEBC mulls over election date change as more demands arise

It cannot be gainsaid that the fresh presidential election occasioned by nullification of Uhuru’s election will not be a run-off which is why the Constitution provides for 60 days similar to a new election following cancellation of presidential election under Article 138(8). In its 2013 judgement, the Supreme Court stated that a fresh election triggered by the invalidation of the declared president-elect does not require fresh nomination of candidates because “such a fresh election is built on the foundations of the invalidated election”. It boggles the mind that the Supreme Court could utter such statement.

This reasoning is untenable and contradictory. In plain English, the word nullify means two things. First to make a legal agreement or decision have no legal force. Secondly, to cause something to have no value or effect. The immediate effect of the decision of the Supreme Court majority to invalidate Uhuru’s election is that the certificate of president-elect issued to him by Wafula Chebukati on August 11 was rendered a nullity. The original basis for the said certificate of president-elect is that Uhuru had on May 29, 2017 been issued with a certificate of nomination as the Jubilee Party presidential candidate for the August 8 election.

Baldly stated, the reasoning of the Supreme Court in the 2013 judgement is that after an election of President is invalidated, the certificate of President-elect is nullified but the certificate of nomination remains valid and somehow survives as a foundation for the fresh election.

This strange reasoning begs the questions: Why is this not the case in parliamentary and other elections? If the nomination certificates issued to Uhuru and Raila for the August 8 election are still valid, why is this not the case for Ekuru Aukot and the other fringe candidates? How will IEBC justify application of some sub-clauses of Article 138 and not others, particularly regarding nominations? Most importantly, if Uhuru and Raila were issued with nomination certificates for the presidential election held August 8, does each of them truly believe such certificate is valid for the fresh election on October 17?

The third complication relates to the legal consequences of Raila’s threat to either pull-out or impede the holding of the fresh election ordered by the Supreme Court unless his impossible sounding conditions are met by IEBC. On the face of it, if the order for fresh elections is interpreted to mean an election between Uhuru and Raila – as the Supreme Court opinion of 2013 suggests – then there is great trouble for Kenya ahead if Raila pulls out of the October contest.

Constitutional crisis

Without a doubt, such a scenario will plunge Kenya into a constitutional crisis which would have to be cured by either a NASA-instigated civilian coup (read nusu mkate care-taker government) or a Jubilee-led palace coup in which Jubilee Party damns the Constitution and claims Kenyans had already given Uhuru a new mandate in August. This kind of uncertainty is preventable and this is how.

ALSO READ: Our demands must be met, insists Raila

There are only three circumstances under which the Supreme Court can make binding decisions. First, the Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to elections to the office of the President. Secondly, it has appellate jurisdiction to hear and determine select appeals from the Court of Appeal. Thirdly, under Article 163(6) the Supreme Court may give advisory opinions. The purported decision of 2013 that IEBC is citing in its gazette notice for the October 17 fresh presidential elections is not a decision made under any of the three circumstances above. Logically one may ask: what was it then?

Like in 2017, the AG was admitted as amicus curiae (friend of court) during the 2013 petition. Based on an apparent apprehension that there was a lacuna in law in the event that Uhuru’s election was invalidated, the AG invited the court to answer the following question: “Does the fresh election anticipated by Article 140(3) mean an entirely new presidential election (including the nomination process), or does it mean a similar election as that anticipated under Article 138(5) and (7) – with the same candidates as in the earlier poll?”

Line of relief

The Supreme Court understood the AG as inviting it “to give directions on a line of relief declared by the Constitution depending on merits”. Upon accepting the AG’s invitation, the court gave its directions and answers to his questions. In my view, the directions and answers given in 2013 do not amount to a decision of the Supreme Court under Article 163 as argued above.

For avoidance of doubt, Article 138 sets out the procedure of presidential election whether such election is triggered by the expiry of the President’s term under Article 136(2)(a), impeachment of the President under Article 146 or invalidation of a presidential election under Article 140. The way I see it is that the directions and answers in the 2013 judgement were based on the understandable inclinations of the AG and the Supreme Court to avoid the procedure set out in Article 138. In 2013 the merits of those answers and directions were not put to test as Raila’s petition did not succeed.

In 2017, I am afraid there would be dire consequences for Kenya if the IEBC tries to avoid Article 138 whilst Raila is threatening to pull-out of the fresh elections. The reason is simple: If the procedure under Article 138 is followed and nominations conducted, it will not matter whether or not Raila pulls out of the race because IEBC will simply declare the nominated candidate as elected.

Likewise, if the procedure under Article 138 is not followed, then the foreseeable political future of Kenya rests in the hands of Raila as there would be no constitutional basis for Kenya to have a legitimate President without going through the rigours of an election.

- The writer is a constitutional lawyer.kibemungai@yahoo.com

nowayhaha
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Re: When Raila Says There is No Election -Has he Plotted This With Chebukati

Unread post by nowayhaha » Fri Sep 22, 2017 2:55 pm

Raila's sentiments were echoed by co-principal Moses Wetangula who dismissed Attorney General Githu Muiga's statement that there is no constitutional vacuum. 

Muigai said Uhuru is legally in office and will remain president until the swearing-in.

He also said Kenya will not face a constitutional or political crisis even if a planned re-run of its presidential election is delayed beyond the end of October.

Read: Uhuru still in charge, election boycott ineffective - Muigai

But Wetang'ula insisted the incumbent is only a caretaker President as on September 1, the Supreme Court ordered a fresh election within 60 days. 

"If a fresh election will not have been conducted by September 1, Uhuru will no longer be the President. National Assembly speaker Justin Muturi will, in that case, be a caretaker president for 90 days when a fresh election will be held in accordance with the constitution," he said.

"The AG is no fool. He is just being mischievous and dishonest...we are telling him not to play that game on Kenyans. Let him speak the truth."
https://www.the-star.co.ke/news/2017/09 ... a_c1640448

okoths72
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Re: When Raila Says There is No Election -Has he Plotted This With Chebukati

Unread post by okoths72 » Fri Sep 22, 2017 5:49 pm

:lol: Somebody said that when Rt Hon tells you that tomorrow is Christmas just start making some good food including chapati. :lol: :lol: :lol: :lol: :lol: :lol: :lol: :lol: :lol: :x :lol: :lol: :lol: :lol: :lol:

fairandbalanced
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Re: When Raila Says There is No Election -Has he Plotted This With Chebukati

Unread post by fairandbalanced » Fri Sep 22, 2017 6:56 pm

This is not going well for Jaconists. They lose badly in a new election, delay the election and try to cause a constitutional crisis, if this is successful, Justin Muturi, Uhuru's best buddy takes over for 60 days to organize an election with majority senate, house, governorship etc there is no easy way out.
people of goodwill should join together and free Kenya from the grip of heartless thieves.

okoths72
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Re: When Raila Says There is No Election -Has he Plotted This With Chebukati

Unread post by okoths72 » Fri Sep 22, 2017 7:16 pm

Remember Uhuru telling the Wilbarow man that he is number three alikuwa anacheza watu wa bungoma

But remember that Parliament is illegal opened by an illegal person not elected and is full of 54% vifaranga.
When. Uhuru purported to have opened it Nasa members were not there so is the reputed president of judiciary.

Roadrunner
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Re: When Raila Says There is No Election -Has he Plotted This With Chebukati

Unread post by Roadrunner » Sat Sep 23, 2017 6:34 am

okoths72 wrote:
Fri Sep 22, 2017 7:16 pm
Remember Uhuru telling the Wilbarow man that he is number three alikuwa anacheza watu wa bungoma

But remember that Parliament is illegal opened by an illegal person not elected and is full of 54% vifaranga.
When. Uhuru purported to have opened it Nasa members were not there so is the reputed president of judiciary.
If parliament is illegal, how come RASA mps are attending? :roll: :roll: :roll:

fairandbalanced
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Re: When Raila Says There is No Election -Has he Plotted This With Chebukati

Unread post by fairandbalanced » Sat Sep 23, 2017 7:41 am

All NASWA mpigs should boycott their salaries too..they are instead asking for benefits for their mistresses. Oct 26 is the day we shut up jaconists for good or at least for 20yrs.
people of goodwill should join together and free Kenya from the grip of heartless thieves.

nowayhaha
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Re: When Raila Says There is No Election -Has he Plotted This With Chebukati

Unread post by nowayhaha » Sat Sep 23, 2017 7:46 pm

Opposition’s key strategy that risks causing poll crisis


https://www.standardmedia.co.ke/article ... oll-threat

Fresh details have emerged that show NASA presidential candidate Raila Odinga may not be keen on the October 26 elections.

Sources close to the goings on in NASA told Sunday Standard that NASA’s strategy is to force an election in which President Uhuru Kenyatta is either not in power which means a caretaker government would have taken over or a coalition government. 

ALSO READ: New twist as Uhuru team heads back to court

In line with this strategy, NASA has introduced tough demands covered under an ‘irreducible minimum’ note to the Independent Electoral and Boundaries Commission. These conditions, NASA insists, must be met before a discussion on elections can take place.

But President Kenyatta’s Jubilee Party insists that elections will proceed as scheduled amid revelations that his lawyers are headed back to Supreme Court.

It is also understood that the international players have insisted that elections should proceed and institutions must be respected. However, NASA is resolute that no elections can proceed under the current circumstances that inhibit a fair contest.

“We will have to ensure that for an election to take place, Kenyatta should not be holding state power. He benefited from it in 2013, and in August.  We see his influence on the election when he was President and we want him out first,” said a senior NASA politician who sought anonymity because of the sensitivity of the matter.

Demonstrations

ALSO READ: Raila’s Supreme Court victory opens Pandora’s Box, lawyers say

The politicians said NASA, which enjoys the support of more than half of the country, would not allow the election and had three cards on the table to ensure that elections are not held.

“We will not divulge them at the moment, but they are concrete, well thought-out and foolproof strategies that Jubilee may have not anticipated,” said the source.

When contacted for comment, NASA campaign chairman Musalia Mudavadi and Senator Moses Wetang’ula reiterated that there would be no elections unless their demands to introduce fair play are met.

“This is not negotiable, NASA coalition demands that fresh election should be administered by a professional and non-partisan officials. Partisan officials should step aside and or be suspended during the planning and execution of the fresh election.” said Mudavadi weeks after the Supreme Court invalidated the elections on account of irregularities and illegalities committed by the Independent Electoral and Boundaries Commission (IEBC).

Three days ago IEBC Wafula Chebukati moved the election from October 17 to 26.

But even before this, NASA leader Raila Odinga had declare that there will be no elections unless conditions to level the playing field and stamp out vote rigging are met.

Days after the Supreme Court delivered full judgment annulling President’s Kenyatta’s election, IEBC is walking a tightrope of managing a high-voltage election that has left a cloud of uncertainty hanging on the country’s political space.

ALSO READ: Man paints donkey with Jubilee colours to campaign for Uhuru

It is also understood that NASA is planning demonstrations against IEBC this week to force the commission to effect internal changes. Similarly, Civil Society Development Group has written to Inspector General of Police Joseph Boinett notifying him of their intention to hold peaceful demonstrations.

NASA’s hardline position and the ‘no election’ mantra seems to have attracted the attention of international players.

Saturday, the Intergovernmental Authority on Development (IGAD), through an advertisement in the print media, called on all actors in Kenya to reject those who seek to interfere with the constitutional order by disrupting or preventing the court-mandated fresh election.  The eight-country trading bloc said this would put in peril democratic change of government and usher a crisis from which others can seek undemocratic change of Government.

“Based on its prior assessment, we are confident that IEBC can execute its constitutional mandate to facilitate the expression by the Kenyan people of their sovereignty. IEBC must thus not be crippled from executing this mandate. Sabotaging IEBC or boycotting the elections will put Kenya in a constitutional crisis and likely on a path to Unconstitutional Change of Government,” read the Igad statement in part.

Things could get even thick for the country because as NASA looks at a post November elections possibility, it emerged that President Kenyatta’s lawyers were putting final touches on a Judicial review application to be filed in Supreme Court this week.

This revelation was also confirmed by Jubilee Party Vice Chairman David Murathe. Speaking to Sunday Standard, Mr Murathe said the petition for Judicial review will officially be filed this week with a view of having ballot boxes opened and manual counting of ballots as cast on August 8 election.

The Jubilee party Secretary General Raphael Tuju also dismissed the Opposition demands as unreasonable. He said the coalition’s demands that the election will take place under their terms was only aimed at muddying the waters.

“Our opponents have continually argued for an exclusive use of electronic system, and they have continually gone to court to stop anything else except the electronic system without manual backup,” he said.

ALSO READ: Lawyer Ahmednassir attacks Raila’s supporters ahead of fresh poll

He cited Germany that has decided to carry out their elections using a fully manual system without using the electronic system. “A country like Germany, with all its machinery,  has decided to go manual, who are we not to use the same system,” said Tuju.

Among the NASA conditions are the removal of IEBC Chief Executive Officer Ezra Chiloba. Others that NASA has insisted must be sent on compulsory leave are Betty Nyabuto, the Deputy Commission Secretary (Operations); James Muhati (Director ICT) and Immaculate Kassait (Director Voter Registration and Elections Operations). NASA also said it wanted Praxedes Tororey (Director Legal and Public Affairs), Moses Kipkogey, (Manager Legal Department and Advisor to the CEO) out.

On Thursday, Tororey proceeded on a two months terminal leave after she opted to take early retirement.

NASA has said it is simply demanding a clear realistic plan to achieve transparency and accountability through the planning, implementation and audit phases.

Suna East MP Junnet Muhammed said NASA plans to move to court to bar President Kenyatta from hosting political delegations at State House during the campaign period.

“State House belongs to all Kenyans including the opposition, if President Kenyatta wants to host his political meetings let him go to Jubilee House or hire KICC or any other venue. If he continues then we will be forced to challenge this as an election offence,” said Junet.

NASA’s hardline position seems to have hit Jubilee administration. In his address to the nation on Thursday, the President waded into the political furor with the acknowledgement that the country was charting into legal uncertainties.

ALSO READ: Raila cannot continue holding Kenya hostage, says Uhuru

 “The judgment has also created uncertainties and raised matters that require legislative attention. I have therefore requested the Parliament should expeditiously address itself to the issues raised in order to protect our country from any ambiguities and or that may arise from this judgment,” he said.

As a consequence, plans are underway to introduce a series of amendments to laws and statutes. Meetings involving Jubilee MPs having been ongoing to identify legal provisions for amendments.

On Friday, Attorney General Githu Muigai stated he government position on legal implications ahead of the cancelled elections.

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