Legal worries persist in Kenyan election re-run

Chief Justice David Maraga presides over Kenya's Supreme Court, 1 September 2017.
Chief Justice David Maraga presides over Kenya's Supreme Court, 1 September 2017. Photo: Reuters/Baz Ratner

Several legal concerns surround the organisation of Kenya’s presidential poll re-run, the head of country’s law society told RFI on Tuesday. Any delays to new elections pushing the polls beyond the end of October could plunge the country into a constitutional crisis, while the replacement of electoral commission staff could prove legally tricky under an incumbent head of state.


“Any date after 1st November 2017 would be a violation of the constitution - it would lead the Republic of Kenya into a constitutional crisis,” says Isaac Okero, President, Law Society of Kenya.

Q&A: Isaac Okero, President, Law Society of Kenya

The re-run had originally been scheduled for 17 October, however the French company providing the biometric system said on Monday that the technology could not be deployed in time. The re-run could instead take place on 24 October or 26 October, according to sources at the Independent Electoral and Boundaries Commission (IEBC) who spoke to Kenyan media.

“Provided that it is still within the 60-day period, that is to say before the 1st November 2017, then there should be no difficulty because then the elections would still have been held within the period proscribed by the constitution,” says legal expert Okero, referring to the judgement by the Supreme Court.

The other major bone of contention is the composition of the IEBC. The opposition led by Raila Odinga has been critical of the electoral commission’s organisation of the polls and has called for key members of the commission to be replaced. However, replacing commissioners while under a temporary incumbent head of state falls into a legal grey area.

“Any changes to the members of the commission itself, the commissioners, would require appointments, presumably a replacement if that were the case, by the president,” says Okero, when asked about changes at the IEBC. “But at the moment, the president's powers to appoint public officers is limited,” he says, referring to articles of the constitution relating to temporary incumbency.

Changes to members of IEBC staff under the rank of commissioners is for the IEBC to decide for itself, according to Okero. Nevertheless, it is important at this stage to have the detail of the Supreme Court’s judgement annulling the result of the 8 August poll because that will help determine whether commissioners need to be replaced, he says.

“Its difficult to say which way this will go - we really need to wait for the judgement to come out so we can see the extent to which officers within the IEBC are implicated,” says Okero. As well as ordering fresh elections within 60 days, Supreme Court Chief Justice David Maraga said the court would provide a full judgement within 21 days (by 22 September).

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