The Supreme Court is wrong

[290] Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138 (1) (b) would become applicable, with fresh nominations ensuing. -- The Supreme Court of Kenya, Presidential Petition (2013)

If you are a keen reader of the Constitution, then you are aware that Article 138 does not have a clause (1) (b). The error by the Supreme Court is important because it affects the outcome of the upcoming fresh presidential election, scheduled for the 26th October if Raila Odinga makes good on his threat to "not participate in the fresh election".

It seems that the Supreme Court made up its own provision in Article 138 and then proceeded to hang the "fresh nominations" hat on its interpretation of what the fictitious provision meant. Article 138 deals with the procedure at a presidential election: from qualification to the declaration of results. It doesn't deal with invalidation, the subject of Article 140 (3); instead, it describes the circumstances surrounding a cancelled election at clause (8). Suffice to say, cancellation and invalidation are not the same nor do they operate in the same constitutional process.

Fresh nominations are contemplated in the context of a cancelled presidential election under 138 (8). They are not contemplated in Article 140 (3) where a presidential election has been invalidated by the Supreme Court. The Elections Act, 2011, at section 13, is of no help; it doesn't contemplate the effect of a resignation by a duly nominated presidential candidate after submission of nomination papers to the electoral commission.

As it is, the Supreme Court declares that the parties to the petition that invalidates a presidential election, where the petitioner was a candidate in the invalidated election, shall be the ones to stand in the fresh presidential election. Where the successful petitioner was not a candidate, then all candidates who were on the ballot in the invalidated election shall stand in the fresh elections. Their status immediately after the invalidation of the election is, going by the Supreme Court, that of nominees whose nomination papers have been accepted by the Commission.

A wrinkle now appears. Neither the Constitution nor the Elections Act provide for the withdrawal of a nominated candidate from the presidential election, fresh or otherwise. Even if Mr Odinga's refusal to participate, whatever that is, is taken to mean that he has withdrawn from or abandoned the presidential election, neither the Constitution nor the Elections Act recognises that act. It seems that whether he participates or not, an election must be held within the 60 days' constitutional threshold and Mr Odinga's name will be on the ballot, whether he participates in the election or not.

The Supreme Court corrected the error found in paragraph 290 of its 2013 Judgment; paragraph 290 was an interpretation of Article 138 (8) (b), which states,

(8) A presidential election shall be cancelled and a new election held if...a candidate for election as President or Deputy President dies on or before the scheduled election date...

Article 138 (8) deals with a cancelled election, not an invalidated one; and even if one were to allow that it 138 (8) could deal with an invalidated election, the only circumstance contemplated in clause (8) (b) is the death of a candidate, not the abandonment of the election by that candidate. The Supreme Court's interpretation of Article 138 (8) (b) is wrong.