What could possibly happen if the 60 days period granted by the Constitution lapse before IEBC conducts fresh polls?
A section of Constitutional lawyers argue this could lead to a crisis.
“When there are political circumstances or actions or a state not anticipated by the Constitution, that is what is legally defined as a constitutional crisis. That is where we would be if elections are not held within the 60 days,” Law Society of Kenya President Isaac Okero said according to the Star.
The picture of a no-repeat election before November 1 is gaining shape following a hardline position maintained by NASA Chief, Raila Odinga.
The NASA boss on Monday stated there will be no election before a set of “irreducible minimum” issues he has outlined are met.
They include sacking 12 IEBC officials, printing of Presidential ballot papers by another firm other than Dubai’s Al Ghurair and an audit of IEBC’s ICT infrastructure.
Jubilee allied lawyers said that if opposition boycotts repeat polls, President Uhuru Kenyatta will remain in office until 2022 where he could be eligible for another term.
But lawyers allied to NASA termed that a “pipe dream” and warned it could be a precursor to Constitutional and political crisis.
An associate to Uhuru said: “”His second term will start in 2022 if no election is held as ordered by the court. The Supreme Court has to be very careful with its ruling on Wednesday (tomorrow). Never dig a hole too deep for your enemy, you may fall in it.”
Jubilee’s Nominations Appeals Tribunal lawyer, Faith Waigwa noted that, “Constitutionally speaking, yes, he can, in light of Article 134, but practically I doubt it would happen. If it were to happen, it can’t be a second term because the first never ended and for a second term, there must have been an election not a nullified one and a new swearing-in/assumption of office.”
Constitutional Lawyer Bobby Mkangi argued that failure to hold repeat polls “[will cause] serious political and governance consequences that will end up with a negotiated political settlement.”
He added it will be “unconstitutional” for IEBC to extend the period from 60 days.
“I don’t think they have the mandate to push beyond the 60 days, they would be doing an illegality. They must stick to the 60 day.”
However, The Supreme Court could extend the 60-day period according to lawyer Nelson Havi.
“The Supreme Court is mandated under the Constitution to determine the validity of the election of President. It is also mandated to give an opinion on matters relating to the election or conduct of national government. Anybody can go to the court and seek extension,” said Havi.
And if things thicken, said Havi “Under international law, a caretaker government may be negotiated by the international community, like the UN and AU, if in the eyes of many the constitutional order appears to have been destroyed.”
By Pharis Kinyua. He’s an online Journalist and an author for Jamhuri News