Why Lawyers are confused on whether we will have a Fresh Election or a Rerun Election

Supreme Court nullified the reelection of President Uhuru Kenyatta, and so the country must hold another Presidential Election within 60 days after the nullification. The question now is, will the country hold a fresh election, a rerun or a runoff?

I have included runoff in the above statement so as to define it. Although a few media personalities have told Kenyans that the election we will be having on or before October 31st 2017 is a runoff, a runoff  has been defined as an election that is held when all candidates fail to garner “more than half of all the votes cast in the election” and/or “at least twenty-five per cent of the votes cast in each of more than half of the counties”. By Dictionary, a runoff is defined as “a further competition, election, race, etc., after a tie or inconclusive result”. In Kenya, the runoff is between two leading candidates in Presidential Election. From these definitions, it is clear the election we will be having is not a runoff – and the lawyers are not confused about this.

Lawyers are confused whether what we will have is a fresh election or a rerun election. Fresh election has been defined as the election that is started from the scratch as if elections were not held in the first place. In this definition, the candidates who want to participate must freshly be nominated by their political parties or freshly nominate themselves as independent candidates, present their nomination documents to IEBC, and get approval from IEBC to run for the office of the President. The definition therefore allows any Kenyan willing to run for President but did not run in the nullified election to run. This definition also allows for Jubilee and NASA to field new candidates other than Uhuru Kenyatta and Raila Odinga respectively if they so wish.

A rerun election on the other hand has been defined as an election where only the Presidential Candidates who participated in the nullified election participates in the new election. In this definition however, any candidate who participated in the previous election and wishes to opt out is allowed to opt out, but no new candidate either from the same parties or different parties are allowed to join the race. The definition also does not require the Presidential Candidates to get fresh nominations from their parties or otherwise.

So which election will we have?

The Constitution of Kenya in Article 140 that deals with validity of presidential election and petition therefrom prescribe in subarticle three (3) that “If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.” It is the use of the word fresh in Article 140 (3) that is the source of the confusion. Does it mean the constitution envisaged a completely fresh election as defined above? I don’t know.

However, it is important to point out that the Constitution in Article  138 that deals with Procedure at presidential election used the words “fresh election” when referring to what has been defined as a runoff. The Article in subarticle five (5) states that “If no candidate is elected, a fresh election shall be held within thirty days after the previous election”. The fresh election referred to in this subarticle is indeed what we know as a runoff. Further, this fresh election allows only (a) “the candidate, or the candidates, who received the greatest number of votes; and” (b) “the candidate, or the candidates, who received the second greatest number of votes.”

If the definition of “fresh election” as contemplated in Article 138 subarticle 5 is imposed on Article 140, then what we can expect is a rerun and not a fresh election.

There are a few who have termed the forth coming fresh election as a by-election, however, it should be noted that a by-election is an election carried out when a vacancy occurs in an elective office. The President’s office on the other hand is set such that it cannot be vacant.