What Happens If a Cleared Candidate Dies Before August Election

An image of a ballot box
IEBC officials open a ballot box after the Law Society of Kenya election exercise at Nyeri law court station on February 18, 2012.
Daily Nation

On Sunday, May 29,  Rabai MP William Kamoti died in a road accident a few hours after the Independent Electoral and Boundaries Commission (IEBC) cleared him to defend his seat on an Orange Democratic Movement (ODM) ticket.

Kamoti's untimely death raised questions on what happens when a cleared candidate dies before the August 9 General Elections, given that the deadline for the presentation of papers had already lapsed.

Already, the National Police Service (NPS) has been under pressure to provide security to all the presidential candidates and their running mates - in full realization that if any of the 44 prospective candidates, or their running mate - dies after being cleared, the country will be forced to cancel the presidential election on August 9 and set a new date. 

Speaking to a Kenyans.co.ke journalist, constitutional lawyer Bobby Mkangi opined that the IEBC would allow ODM a new timeline to submit the name of another candidate, whether through competitive primaries or direct nomination.

A file image of Rabai MP William Kamoti
A file image of Rabai MP William Kamoti
Daily Nation

"The logical thing would be to give the party an opportunity to replace his candidature, but the election in Rabai constituency will go on as scheduled," he stated.

However, the fortunes would be different if a cleared candidate was running unopposed and as an independent candidate. Mkangi explained that IEBC Chairperson Wafula Chebukati would nullify the election in such cases. 

"If a candidate was as independent and the only one contesting the seat, and the time for submitting the papers had lapsed, there was not going to be an election. IEBC would cancel the election for now and call for fresh nominations after August 9," he stated.

The Constitution of Kenya (2010) provides that a parliamentary seat be declared vacant if the MP dies. In addition, it calls for the seat to be filled within 90 days after the Speaker of the National Assembly declares it vacant.

However, the option of having a by-election is not viable in the case of the late Kamoti. Clause Four of Article 101 of the constitution states that a seat will not remain filled if declared vacant 90 days before a General Election.

"Whenever a vacancy occurs in the office of a member of the National Assembly or Senate, the respective Speaker shall, within twenty-one days after the occurrence of the vacancy, give notice in writing of the vacancy to IEBC.

"A by-election shall be held within ninety days of the occurrence of the vacancy. A vacancy referred to in clause (4) shall not be filled within the three months immediately before a General Election," reads Article101 (4-5).

Meanwhile, the Chebukati-led commission began the process of receiving papers of presidential candidates. So far, IEBC has disqualified 11 independent candidates and aspirants Reuben Kigame and Mwangi wa Iria.

Wiper Party leader Kalonzo Musyoka, whose bid was initially rejected by the electoral body over failure to submit a soft copy of the list of 48,000 supporters from 24 counties was allowed more time to avail the names.

Andrew Sunkuli (left ) and Wiper Party presidential canddate Kalonzo Musyoka on May 16, 2022..jpg
Andrew Sunkuli (left ) and Wiper Party presidential candidate Kalonzo Musyoka on May 16, 2022.
Kalonzo Musyoka
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