Kethi Kilonzo a renowned advocate of the High Court of Kenya on Sunday advised IEBC Chair Wafula Chebukati to postpone the election.
In her weekly column on the Standard, Kethi noted that Mr Chebukati should exercise his powers under Regulation 64 of the Elections (General) Regulations 2012 and adjourn next weeks elections since they are "clouded by legal uncertainty and are likely to be interrupted by riot, violence, shortage of equipment or other materials, and administrative difficulties".
"By his own public confession, the chairman admitted that IEBC is unable to conduct an election that squarely meets the threshold of the Constitution and the law. There is also no law in place to govern the procedure for the conduct of the fresh presidential elections," she stated.
[caption caption="File image of High Court advocate Kethi Kilonzo"]
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According to Kethi, the Chairman should not conduct a presidential election where the credibility of a free and fair poll cannot be guaranteed.
"He can and should adjourn the presidential elections and move to the Supreme Court for advice under Article 163 (3) (a) and (6) of the Constitution.The chairman is the returning officer of the presidential elections under Article 138 (10) of the Constitution and Section 39 (1D) of the Elections Act.
[caption caption="File image of IEBC Boss Wafula Chebukati"]
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"He is not beholden to and does not require the consent of the commission, the commissioners, or the secretariat to adjourn and move to the Supreme Court," Kethi submitted.
Regarding the withdrawal of Opposition Leader Raila Odinga from the presidential contest, the advocate explained that the electoral body ought to have conducted a fresh nomination as stipulated in 2013 Presidential petition ruling.
"The 2013 Supreme Court stated that any fresh election, like the one scheduled for Thursday, would be between the candidate declared winner, and the candidate(s) who challenged the election at the court. The 2013 court also held that if there was a withdrawal by a candidate before such a fresh election was conducted, then fresh nominations would follow.
"The Leader of the Opposition, relying on the opinion of the 2013 Supreme Court, withdrew his candidature on October 10, 2017. On the date he withdrew, the law as stated by the Supreme Court required IEBC to carry out fresh nominations.
"IEBC’s decision that such a withdrawal should have been under Form 24A was wrong, doubtful, or can be the subject of a different interpretation," she explained.
