On Wednesday, October the 12th, the High Court returned its verdict which allowed Third Way Alliance candidate Ekuru Aukot to be included in the fresh election scheduled for October 26, and now pundits are saying it could work against Raila Odinga.
Many lawyers argue that Justice Mativo judgement that Aukot is a bonafide presidential candidate, has thrown Raila under the bus.
This is because the High Court rendered useless an earlier decision by the Supreme Court, one the Opposition leader based his withdrawal from the fresh election.
The National Super Alliance (NASA) presidential candidate, Raila Odinga, abandoned the race on the basis of the Supreme Court regulations which mandates the Independent Electoral and Boundaries Commission to carry out fresh nomination if any presidential candidate withdraws from the presidential race midway.
The High Court ruling returning Aukot on the ballot has left Raila’s lawyers in confusion as his decision is proving to be a dangerous one.
Justice Mativo described the 2013 Supreme Court ruling on the fate of the presidential election should a candidate withdraw as Orbita Dictum, in layman terms that means it was just but an opinion of the court which is not legally binding.
The argument now by the legal fraternity is that the Wafula Chebukati-led electoral agency may be forced to follow the spirit of the Constitution which states that in case a presidential candidate withdraws midway, as Raila did on Tuesday; an election is conducted with the remaining candidates.
“It’s the use of the word “suppose” that has made the High Court this morning to conclude that the Supreme Court was only setting its own hypothetical question and giving its own opinion on the sidelines of the main question raised by the AG. That is what is called Orbita Dictum and the judge has ruled correctly that it’s not binding on him. Apparently, that “unbinding” “self” answer/opinion is what Raila has relied on to withdraw from the election,” lawyer Wahome Thuku noted.
Chebukati and his team have since released a statement saying all the eight presidential candidates will be included in the poll, including Raila Odinga whose withdrawal, they argue, wasn’t finalised as he just wrote a letter to IEBC but didn’t sign a vital form to effect it.