Can Supreme Court make Raila President without re-run? What the law says

Lawyer explains more about Article 80 of the Elections Act which allows the Supreme Court to order IEBC to declare a president-elect without ordering a rerun

Raila Odinga

After Prime Minister Raila Odinga announced that he would file a petition challenging the declaration of William Ruto, many legal debates have been ongoing.

Odinga made true his vow and filed his presidential election petition on Monday, August 22, 2022, by submitting a mountain of documents at Milimani Law Courts where the Supreme Court will hear and determine the case.

A number of leaders have cited that Article 80 of the Elections Act allows the Supreme Court to declare Odinga as the president-elect without ordering a rerun of the presidential election if his petition is successful.

Constitutional lawyer Ahmednasir Abdullahi who represented President Uhuru Kenyatta in 2017 but is now a supporter of Ruto, argued that the Azimio la Umoja One Kenya alliance was seeking the Supreme Court intervention in declaring Raila the president-elect.

Outgoing President Uhuru and Hon Raila don't want the Supreme Court to nullify the presidential election of 9.8.2022. They don't want a rerun. They want the Supreme Court to declare that Hon Raila won the 9.8.2022 elections using fuzzy maths. Improbable? No! Impossible? No,” he Tweeted.

Can the Supreme Court Order IEBC to declare Raila as president-elect? The short answer is yes but there are more factors that one needs to know.

The Elections Act does allow room for an election court to order the IEBC to declare Odinga the president-elect in the event that the petition is successful.

An election court may by order direct the Commission to issue a certificate of election to a President, a member of Parliament or a member of a county assembly if— (a) upon recount of the ballots cast, the winner is apparent, and (b) that winner is found not to have committed an election offence,” reads Article 80 (4) of the Elections Act.

However, there is also another law that orders the Supreme Court to order the IEBC to conduct a fresh election in 60 days if the results are nullified.

If the Supreme Court determines the election of the president-elect to be invalid, a fresh election shall be held within sixty days after the determination,” reads Article 140 (3) of the Constitution.

Many lawyers have differed on whether the Supreme Court has the mandate to determine the winner.

According to lawyer Ibrahim Oduor, the Supreme Court already set a precedent that in the case of presidential election results nullification, the IEBC should conduct a fresh election.

He explained that despite the existence of Article 80 (4) of the Elections Act, it would be highly unlikely that the Supreme Court would order the IEBC to announce Odinga as the winner.

Oduor cited the 2013 presidential election petition where the Supreme Court held that it cannot purport to carry out the function of IEBC and voters in the declaration of the president-elect.

He said that the court noted that elections are won at the ballot and cannot superimpose a leader.

As a basic principle, it should not be for the court to determine who would come to occupy the presidential office, save that the Supreme Court, as the ultimate judicial forum, entrusted under the Supreme Court Act, 2011 (Act No 7 of 2011) with the obligation to assert the supremacy of the Constitution and the sovereignty of the people of Kenya must safeguard the electoral process and ensure that individuals accede to power in the presidential office in compliance with the law regarding elections,” the Supreme Court said in the final ruling of Odinga & 5 others v Independent Electoral and boundaries Commission & 4 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) (Judgment).

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