The repeat presidential election will be a contest between President Uhuru Kenyatta and NASA leader Raila Odinga as the IEBC upheld the 2013 Supreme Court interpretation.
Whoever gets most votes — the simple majority — will be declared President as per the interpretation of the six-judge bench.
This means there will be no requirement of a 50 per cent plus one vote as is the case in a General Election.
The Supreme Court in 2013 made far-reaching interpretations on the conduct of a fresh election in what now informs the upcoming poll.
The apex court made the decision after Attorney General Githu Muigai, appearing as Amicus Curiae (friend of the court), sought its judgment on the issue. It is not expressly provided for in the law.
The Willy Mutunga-led bench ruled out fresh presidential nomination for candidates participating in a repeat election following invalidation of election of a President-elect.
However, the Court gave the death of a petitioner as the only reason that can trigger fresh party nominations even as it ruled that the candidates in a fresh poll depends on the nature of the petition.
“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 bench observed.
In the Supreme Court’s declaration, the judges struck a difference between a runoff — an election triggered when no presidential candidate meets the constitutional threshold — and a fresh election occasioned by the invalidation of a presidential election.
The two scenarios are provided for in Articles 138 and 140 of the Constitution.
Under Article 138, one is declared validly elected as President if the candidate receives more than half of the votes cast and at least 25 per cent of the votes cast in more than half of the counties.
The Constitution provides that in case of a runoff, a fresh election must be held within 30 days and would involve the candidate who received the highest number of votes and the candidate who received the second greatest number of votes.
A fresh election caused by the invalidation of a presidential election by the Supreme Court must be held within 60 days after the previous election and would involve candidates who participated in the petition against the President-elect.
“All the remaining candidates who did not contest the election of the President-elect will be assumed to have either conceded defeat or acquiesced in the results as declared by the IEBC, and such candidates may not participate in the fresh election,” the Supreme Court judges said in 2013.
In this case, the petition was filed by one of the candidates — Raila. It means the epic rematch would be between the NASA leader and Uhuru.
The judges also made another determination on the issue where the petitioner was not a candidate in the annulled election.
In that instance, the court said the fresh election would be between all the candidates who had participated in the annulled election.
Poll date
Following the Supreme Court’s annulment of Uhuru’s August 8 presidential reelection, the IEBC set the date for the fresh election in compliance with the orders by the Supreme Court.
The General Election Regulations — Number 88 — require the commission to gazette the date of a fresh election two days after the publication of a declaration that no candidate won the presidential election.
The Wafula Chebukati-commission was holed up in a daylong meeting yesterday to deliberate on, among other things, the impending far-reaching internal changes at the electoral agency and the date of the fresh poll.
It settled on October 17.
The commission wants to make sweeping changes, sack staff largely blamed for bungling the August 8 presidential election and align its staff in readiness for the conduct of the repeat poll.
Raila, who successfully petitioned Uhuru’s victory at the Supreme Court, has said some IEBC officials must be sent packing — otherwise, he won’t participate in the fresh poll.
KCPE, KCSE exams
It also emerged that the Education ministry had written to IEBC chairman Wafula Chebukati, warning that holding the presidential poll beyond October 10 would disrupt national examinations.
Matiang’i yesterday said he had asked the IEBC to conduct the repeat presidential election a week before October 17 for the sake of learners.
The CS noted KCSE will take place from October 23 to November 29, while KCPE will be on November 1-2.
“We request the political class to pay some attention to the welfare of our children. Let them be sensitive to the learning environment,” Matiang’i said.
He wanted the IEBC to consider the availability of schools and security as police officers also offer security during national exams.
Jubilee had upped pressure on the IEBC to announce the date, vowing to win.
“We want this election within 30 days so we show them again that we fairly won the previous one,” Senate Majority leader Kipchumba Murkomen told the Star yesterday.
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