By FRED OLUOCH

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Challenging the legitimacy of President Uhuru Kenyatta after October 26 is the final card in Kenya’s main opposition grouping, the National Super Alliance (Nasa) strategy, following the withdrawal of its presidential candidate Raila Odinga and running mate Kalonzo Musyoka from the fresh presidential poll.

Meanwhile, Nasa plans a protracted legal battle with the Independent Electoral and Boundaries Commission (IEBC) in a bid to scuttle the October 26 election and  — should this fail — have the poll declared illegal to pave the way for challenging the legitimacy of President Kenyatta.

Nasa’s main concern is IEBC’s ability to conduct the election without external interference, mainly from the government. The opposition grouping says it will focus on campaigns once it is guaranteed a level playing ground.

However, the ruling Jubilee Party has said that it is equally prepared to face off with Nasa once again in the Supreme Court where the battle is headed.

The party says it will also fast-track the implementation of new electoral laws — passed by Jubilee MPs and Senators and awaiting presidential assent — to seal loopholes in the existing law.

“As far as we are concerned election will be held on October 26. Let them go to court, we will meet there but once we are done with this, the judiciary should be ready for another surgery,” said the vice chairman of Jubilee Party David Murathe, who is also a member of the campaign strategy team.

The Nasa legal team is preparing to challenge the elections in the Supreme Court, once IEBC issues another gazette notice, based on the 2013 ruling on a presidential election petition that upheld the election of President Kenyatta. 

According to Nasa strategist Willis Otieno, the opposition’s main argument lies in the 2013 ruling that stated that in a repeat election, candidates are not subjected to fresh nominations, a legal opinion that IEBC chairman Wafula Chebukati relied on to issue a gazette notice for the October elections.

Dr Ben Sihanya, one of Nasa’s lawyers warned that President Kenyatta would be forced to vacate office should IEBC fail to conduct elections within the 60 days that the Supreme Court ordered.

“The Supreme Court invalidated the process which must be followed as per the ruling,” he said. 

Attorney-General, Prof Githu Muigai President Kenyatta continues to enjoy constitutional legitimacy.

Legitimacy crisis

But Otiende Amolo, a Member of Parliament and Nasa lawyer, claims that President Kenyatta’s legitimacy crisis was witnessed when the president failed to attend the recent United Nations General Assembly. He said this was because the president was serving under temporary incumbency.

“Jubilee instead of joining us to help IEBC with the law as directed by the Supreme Court is instead undermining the court’s decision because the law if complied with will disfavour them,” said Mr Amolo, who is among Nasa lawyers who participated in the presidential election petition. 

Nasa started its Step One of their game plan with collecting evidence long before the August 8 election with regard to preparations and the conduct of the IEBC in relation to the electoral laws.

In addition to the legal battles at the Supreme Court, the opposition is also working with lawyers in other courts where elections of Jubilee governors and Members of Parliament have been challenged.

The opposition is convinced that it will succeed in invalidating elections of at least 58 MPs across the country to boost it numbers in both the Senate and National Assembly.

It pulled the rug from under the feet of IEBC and Jubilee who were confident that the opposition had lost trust in the Judiciary and would not challenge the results in the Supreme Court.

Step Two was filing the petition that yielded the nullification of the presidential result, rendering the announcement of President Kenyatta’s re-election null and void.

This gave room to Step Three — the demand for changes within IEBC and activities related to the elections.

Nasa has given 12 demands as packaged as “irreducible minimum” that must be met before repeat elections. The demands are the sacking and prosecution of at least six top officials of IEBC it claims were responsible for the irregularities and illegalities that persuaded the Supreme Court to invalidate President Kenyatta’s re-election.

The opposition also demanded that the names of all returning officers be gazetted, agents be allowed to access the server and replacement of Safra Morpho and Al Ghurair as the managers of the Kenya Integrated Electronic Management System ( KIEMS) and printers of ballot papers respectively.

However, in its response to the demands, IEBC has formed a “new project team” to manage the elections, gazetted the names of the 290 returning officers but declined to terminate the contract with Safran Morpho and Al Ghurair, citing time constraints. The commission also argued that the Supreme Court found no IEBC official culpable of elections offences.

Besides changes in IEBC, Nasa is demanding that IEBC provide a list of all polling stations and registered voters in each. The list should indicate the GPS locations of all polling stations and the network coverage.

Returning officers

A new list of 290 returning officers to be appointed with consultations among all stakeholders, only scanned images to be sent through the KIEMS kits or results transmitted by Presiding Officers and Returning Officers may be tabulated.

The others are that media houses to be allowed to cover all results announcements at the respective constituencies and show live feed of the outcome, Independent International Experts should be engaged to manage the entire ICT framework of the elections with close supervision of the Candidates agents and the IEBC.

To up the ante on its demands, opposition grouping has called on its supporters countrywide to stage demonstrations to force change at IEBC. It is also lobbying Western powers to be on their side with regard to reforms within the IEBC and the amendments to the election laws.

Kisumu Governor, Prof Anyang’ Nyong’o was in the US recently to lobby the Trump Administration to take the current political stalemate in Kenya seriously, arguing that election laws cannot be changed midway.

A few days later—the State Department Heather Nauert, released a statement saying that the United States Government was deeply concerned by the deterioration in the political environment in Kenya in advance of the October 26 presidential election. 

“We remain committed to supporting a free, fair, and credible election that is consistent with Kenya’s Constitution, current laws, and institutions, and we do not back any party or candidate,” said Ms Nauert.

READ: US concerned over Kenya political state

She criticised attacks against and unreasonable demands on the electoral commission IEBC , and also said  that changing electoral laws without broad agreement just prior to a poll is not consistent with international best practice, increases political tension, and undermines public perceptions of the integrity of the electoral process.

Mr Odinga flew to the UK on October 11 to give a lecture at the Chatham House London — the Royal Institute of International Affairs — on Thursday where he discussed the Supreme Court ruling annulling the August 8 election, the reforms he and the Nasa coalition would like to see ahead of the October 26 election, and how the next government can drive forward institutional reforms to strengthen Kenya’s democracy.