Why Uhuru Kenyatta could stay in office until May next year

President Uhuru Kenyatta could remain in power for nine more months after the end of his official term until a new president is sworn in on May 2, 2023, if the upcoming August 9 General Election is followed by Supreme Court petitions and likely presidential race run-offs.

Projections done by constitutional experts point to a possible protracted court process and repeat polls, based on multiple poll surveys that show a race too close to call between top contenders Raila Odinga and William Ruto.

Article 142 of the Constitution provides that the President will serve for a term beginning on the date he is sworn in and only leave office when his successor is sworn in. Based on this requirement, the handover scenarios provided in the Constitution, all involving resolution of disputes arising from the presidential election, indicate that Mr Kenyatta could hold power until May 2 next year in the worst-case scenario.

However, this will depend on whether Supreme Court judges will master the courage of King Lion and nullify the outcome of the 2022 Presidential election twice, in the event that the conduct of the poll breaches Constitutional provisions as was the case in 2017.

Within those nine months, the country will have been subjected not just to a bone-jarring election on August 9 but also to a run-off, two nullifications, and tension-packed, nail-biting four presidential petitions, an eventuality that could pit the best constitutional lawyers against each other in the apex court. In 2017, the court, then headed by Chief Justice David Maraga, set a precedent by nullifying the re-election of a sitting president, citing lack of transparency and verifiability in the conduct of the polls. The repeat election that followed was also contested in court, as Kenyans waited for the outcome with bated breath given that the opposition Nasa coalition had boycotted it.

Most of the shortcomings that the Supreme Court cited with regard to preparedness and verifiable conduct of elections have yet to be fully addressed, raising the possibility of yet another election stalemate in three months.

Parliament has yet to pass critical laws that the Independent Electoral Boundaries Commission (IEBC) will rely on to conduct the polls, while the Commission has yet to fully address the question of the technology to be used to identify voters and transmit results.

Constitutional lawyers, who talked to Saturday Nation, say a scenarios of a run-off, nullification and repeat polls are a high possibility because they are contemplated in the Constitution.

The lawyers note, however, that it is unlikely for the Supreme Court to overturn a presidential election twice, the 2017 precedent notwithstanding.

Lawyers Bob Mkangi and Adrian Kamotho argue that while such a scenario would be within the constitutional provisions, if it ever plays out, its chances are not very high, unless there is a catastrophic failure on the part of the IEBC.

“The calculations of the scenarios are legit because it is anticipated in the Constitution,” Dr Mkangi said, but added that it will be hard to imagine that the Supreme Court can nullify two consecutive presidential elections.

Based on the constitutional requirement that the outgoing President can only leave after the swearing-in of his successor, the state intelligence system is said to have drawn elaborate scenarios as a form of preparedness to avert a constitutional crisis in the event that the outgoing president is forced to stay in office well beyond the September 3 swearing-in date contemplated in the event of non-contested elections.

“The elaborate chronology of events is provided for in the Constitution to ensure there is no vacuum in the Office of the President. We only hope it doesn’t come to that, but its properly provided for in the Constitution.”

Agreeing with the sentiments, Mr Kamotho argued there is a presumption that the IEBC will learn from the mistakes of the first nullification based on the reasons advanced by the Supreme Court and hold an election that complies with the law. “Only utmost bad faith on the part of the IEBC will lead the Supreme Court to nullify a presidential poll for the second time in a row because the court will have given reasons on the shortcomings that led to first nullification,” Mr Kamotho argued.

“The Supreme court judgment will be more than adequate guidance to the commission and there is no valid reason for a poll to be marred by irregularities that will substantially affect its outcome. Responsible election officials should deliver a proper repeat poll.”

Based on the processes provided in the Constitution, starting with the general election date until a new president is sworn in, the legal experts say six scenarios could play out, paving the way for Mr Kenyatta to delay his exit. They base their analysis on the fact that there will be a challenge in the form of a presidential petition against results announced at all stages and that all the constitutional timelines for activities outlined in the Constitution will be met on the very last day, in tandem with Kenyans’ history of last-minute rush.

The only timeline that might change, according to the projections, is that of announcing the final presidential results. While the law obligates the commission to announce the final results within seven days, it also opens a window for it to declare the results anytime once the leading candidate opens an unassailable lead.

President Kenyatta could exit the stage less than a month after the polls, as soon as on September 3. But this is based on the assumption that his successor will register a resounding first-round win, complete with the required 50 per cent+1 threshold. The experts also foresee a scenario where there will be a presidential petition, but the Supreme Court will not overturn the outcome as announced by the commission.

This is similar to the 2013 scenario where President Kenyatta was declared validly elected after he garnered 50 per cent plus one of all votes cast and 25 per cent of votes cast in 24 counties, to defeat Mr Odinga, who filed a petition, paving the way for Mr Kenyatta’s inauguration on April 9, 2013, slightly a month after the election date, which was March 4 of the same year. In case a similar scenario is replayed and the Supreme Court does not nullify, it is likely that Mr Kenyatta could exit the stage a month after the August 9 polls.

After the election is held on August 9, the IEBC is obligated to announce the final results by August 16—seven days after the election. After that, candidates who dispute the outcome have seven days to file a presidential petition, which will run to August 23, and the Supreme Court will have 14 days to determine the validity of the allegations raised by the petitioners. This could go up to September 6, and Mr Kenyatta could exit on September 13 once his successor is sworn in, assuming the court will uphold the outcome.

In the worst-case scenario, the experts anticipate that there will be no clear winner when Mr Wafula Chebukati announces the final results on August 13, triggering a petition and subsequent run-off. They anticipate that one of the candidates could file a petition on August 20 challenging the commission’s declaration. The Supreme Court will overturn the outcome in a judgment to be delivered on September 3, paving the way for a repeat election to be held in 60 days, which will fall on November 3.

The final results of the repeat poll will be announced on November 7; after which they anticipate a run-off as there will be no clear winner with none of the candidates garnering 50 per cent plus one votes required for a first round win.

Repeat poll

The petition of the repeat poll will be filed by November 14, and the Supreme Court will deliver a verdict on November 28, overturning the poll. It will order a run-off to be held on December 28, and which will again be challenged once again in the Supreme court, nullifying the result in a decision that will be delivered on January 23. A fresh poll will be held on March 24, results announced four days later, and another petition filed on April 5. However, the apex court will uphold the verdict on April 19, paving the way for the president-elect to be sworn into office on May 2.

Much as he agreed with the calculation, University of Nairobi lecturer Herman Manyora says such a scenario playing out in Kenya is remote as presidential elections are not easy to overturn. He argues the courts the world over avoid getting entangled in such political disputes as they consider it interference in the sovereign will of the people.

“Overturning presidential elections is not a daily cup of tea, notwithstanding the grounds cited,” said Dr Manyora, citing statistics that indicate outcomes that have been overturned in Africa only in Malawi and Kenya.

The courts shied from applying the 2017 precedent to adjudicate the cases involving governors because of what Dr Manyora argued is the need to guard against interfering with the will of the people.

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