Fresh details have emerged on a select, single article in the 2010 Constitution that could be NASA’s lifeline in blocking repeat polls on October 26.
The National Super Alliance is pushing for reforms at the IEBC and this includes sending about 11 officials home led by CEO Ezra Chiloba.
Raila Odinga has publicly stated that they will boycott repeat polls if Chiloba and other “’blacklisted officials” do not resign.
And starting Tuesday, Raila announced they will stage protests outside IEBC’s main offices at Anniversary Towers to push for reforms.
However, in the event all this flops, then, they will revert to a single article in the Constitution that could block the repeat polls.
According to the Star, Article 138 (2) of the Constitution could be NASA’s lifeline.
It states: “If two or more candidates are nominated, an election shall be held in each constituency.”
Thus, according to legal minds from both political factions, each of the 290 constituencies in the country must participate in the elections.
If one of the constituencies does not participate, the repeat polls will be declared null and void.
This could be NASA’s potential arsenal to thwart the polls.
NASA currently enjoys unrivalled support in Nyanza, Western, Coast and Lower Eastern parts of the country.
If it managed to convince its supporters not to turn up, the elections will be declared null and void.
“For the election to comply with the Constitution, it must be held in every single constituency. It’s the reason the Constitution uses the term “shall” be held in each constituency,” noted NASA CEO Norman Magaya.
Magaya doubles up as a lawyer.
Without directly revealing that NASA will revert to the select article of the Constitution, Raila has said without reforms at the IEBC, elections will not be held in Kenya except parts like Gatundu-Uhuru’s backyard.
“There will be no election because if Kenyans won’t take part, it will probably be conducted in one or two regions and not all the regions of Kenya. Therefore, it will not be an election for the entire Republic of Kenya,” Raila told Germany’s Deutsche Welle on Saturday.
Constitutional lawyer Nelson Havi averred that should Raila use the select article, Jubilee will be in an untold catastrophic imagination.
“The net effect is that there will be no election. This is perhaps Raila’s most potent constitutional weapon at his disposal.”
“If the IEBC goes ahead and declares Uhuru as the winner of that election, all that we need to do is to go to court and say there was no election because the election was not conducted in all the 290 constituencies,” added Havi.
Another Constitutional Lawyer Kibe Mungai said: “That is one of the sections NASA could be having in mind, you can politically achieve it effectively, it is a potent threat that can be carried through and is a serious issue of concern.”
But Senate Majority Leader Kipchumba Murkomen dismissed NASA’s no-election stand as “brinkmanship”.
“I want to dare NASA, try committing an election offence and your candidate will be nullified from the election and we will have Uhuru Kenyatta sworn-in at Kasarani,” said the Elgeyo Marakwet Senator.
The President himself on Tuesday last week warned NASA that should they frustrate the repeat polls, he will continue being in office.
His sentiments were amplified by the Attorney General Prof Githu Muigai who noted that Uhuru will remain in office even if there is no election.
“If in any case the election is not held within 60 days; that does not de-legitimise the government of the day,” he said.
By Pharis Kinyua. He’s an online Journalist and an author for Jamhuri News