NASA is adamant that unless specific changes are made within IEBC, changes they have called bare minimum demands, then there will be no elections in Kenya on October 17th 2017. The NASA Principals have gone ahead to clarify that what will happen will not be an election boycott, but simply that Kenya will not hold an election on October 17th. Jubilee has come out to demand explanations from NASA on just how NASA is planning to stop the elections on October 17th.
In an Interview with Yvonne Okwara on KTN News, Raila Odinga explained that what will happen is that NASA will not participate in an election that is not free and fair. Raila Odinga went further to expound that an election is a competitive process where at least two competitors compete for votes, and that when there is only one competitor in the competition, then whatever is done to elect a President is not an election. If Jubilee goes ahead to participate in a voting process on October 17th, then that process will be a Jubilee in house affair and not a Presidential Election as recognised by the constitution.
Following the utterances by NASA Principals and Raila Odinga in particular, many Kenyans have been asking the question, “what will happen if Raila and NASA boycott October 17th election?”. Another question is, “can the fresh Presidential Election be postponed beyond October 17th?”. The answer to the second question is yes, the October 17th Election can be postponed to no later than November 1st 2017.
The answer to the first qustion is, Raila and NASA failing to participate in October 17th or November 1st Election cannot hinder IEBC from conducting the election. IEBC will go ahead to print the ballot papers bearing the names of Uhuru Kenyatta and his Deputy vs Raila Odinga and his Deputy. After all Raila and Kalonzo were duly nominated to vie for Presidency and Deputy Presidency respectively, and if Raila Odinga and Kalonzo Musyoka tell their supporters not to turn up to vote for them, then Jubilee will have an easy win. I foresee no legal challenge as to the validity of Uhuru’s win in this scenario.
What if IEBC fails to conduct a Presidential Election by November 1st 2017? There are two possibilities, either the current President remains in office following the constitutional clause that the temporary incumbent holds office until the next president is sworn in, or a caretaker Government is formed for the next five years.
Those holding the view that the current temporary President will remain in office until the next President is sworn in assume that an election can be held post November 1st. The constitution does not foresee a situation where IEBC fails to hold a fresh election under Article 140 of the constitution, thus there is no constitutional basis under which a fresh election can be held post November 1st. It is also unimaginable that a temporary President can remain temporary for five years, as he would be a president unable to fire, hire, and perform a raft of other duties as a temporary incumbent President. That is, the country would be stagnant for five years before Uhuru Kenyatta and another individual can again vie for Presidency in 2022.
My bet therefore is a caretaker Government (nusu mkate) will be formed for the purpose of resolving the causes for the stalemate, and thereafter an election will be held under a new electioneering process – what others would like to term extra constitutional means.