To the wilderness or not?

On elections, this is the hierarchy of laws: the Constitution, the Elections Act, 2011, the Election (General) Regulations, 2012, IEBC guidelines and the like. Some of you already know that one other source of law is known as common law, the body of decisions by the highest court on relevant matters. What many of you might not understand or appreciate, is that common law is only applicable when the Constitution, Acts of Parliament and subsidiary legislation (including guidelines, etc.) have failed to address a matter that is in controversy. Common law is the interpretation of the law as well as the circumstances necessitating that interpretation that seeks to resolve a matter for which the written law is silent, ambiguous or contradictory. Common law, just like all other sources of law, is not infallible and is to be relied on only as a last resort.

We have the benefit of two Supreme Court judgments filed by the same petitioner against the same respondents in two separate presidential elections. Both judgments form part of the common law on presidential elections in Kenya. Both judgments lay down what can and can't be done in relation to specific provisions of the Constitution and the electoral law of Kenya. Both judgments are flawed and have done little to resolve the political or administrative problems that necessitated the presidential election petitions in the first place. If for nothing else, we must thank the Supreme Court for familiarising us with Articles 138 and 140 of the Constitution, section 13 of the Elections Act, 2011 and regulation 52 of the Elections (General) Regulations, 2012.

Article 138, over which much has been said, relates to the procedure at a presidential election. It guided the presidential election on the 8th August. From the moment the presidential candidates filed their nomination papers with the IEBC to the the 11th August when the Chairperson of the Commission declared Uhuru Kenyatta duly elected as the President of Kenya, Article 138 held sway. Article 140, on the other hand, was invoked by Raila Odinga in his petition challenging the declaration of Uhuru Kenyatta as President of Kenya and the Supreme Court invoked its powers under clause (3) to invalidate the election and order a fresh election within 60 days. The judgment of the Supreme Court now forms part of the common law of Kenya on presidential election petitions and presidential elections. And it is a mess.

The 2013 judgment, at paragraph 290, obiter dictum or not, refers to the abandonment of a presidential campaign by a candidate under Article 138(8)(b). This is what it says,

[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 (8) (b) would become applicable, with fresh nominations ensuing.

The problem is not what the Supreme Court said but what Article 138 (8) (b) actually provides for. It states,

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

There are two important things to note about Article 138 (8). The first is that it deals with the cancellation of an election, not its invalidation. The second is that clause (8) (b) deals with cancellation on account of the death of a candidate, not  his abandonment of the electoral quest. A cancellation of the presidential election is a power than can only be exercised by the IEBC, not the Supreme Court whose power is exercised only under Article 140 (3) when it declares a presidential election as invalid. The 2013 judgment is badly written and it makes for bad common law. Its paragraph 290 must be revised. The Supreme Court must also set out what it means for a presidential candidate to abandon the electoral quest after a presidential election has been invalidated under Article 140 (3) and whether it would serve as sufficient ground for the Commission to cancel the election and set a new date under Article 130 (9), which has the same 60-day time-frame as under Article 140 (3).

You will notice that I have not examined the Elections Act, 2011 or the Elections (General) Regulations, 2012. This is because they cannot provide for what was not provided for in the Constitution, namely the effect of the withdrawal of a presidential candidate from a fresh election that was necessitated by the invalidation of a presidential election. Regulation 52 of the regulations that has been much-quoted on social media is not applicable in any way; it only provides for withdrawal of a candidate within three days of filing his or her nomination papers with the Commission. Because of the 2013 judgment at paragraph 294, there is no need for fresh nominations in the case of a fresh election which has been necessitated by the invalidation of a presidential election under Article 140 (3).

In theory, the hierarchy of laws and the place of common law in that hierarchy is supposed, as far as possible, to address niggly issues like those raised by the invalidation of a presidential election and the withdrawal of a candidate from the fresh election, as has been threatened by Raila Odinga. In our case, we are nowhere near finding a solution that is both practical and respects the provisions of the Constitution. Our constitutional, statutory and jurisprudential architecture is deeply flawed. In the extant case, the only logical solution is political: both parties, Messrs Kenyatta and Odinga, must negotiate a settlement that permits both to participate in the fresh election and sets down a road map for the amendment and clarification of the constitutional, statutory and regulatory provisions of the electoral law of Kenya. If they fail or refuse to defuse this time bomb, they will both be responsible for setting Kenya down a constitutional wilderness for which solutions may never be found.