Maraga, Mwilu challenge President Kenyatta’s lawyer on nominations
President-elect Uhuru Kenyatta’s lead counsel Fred Ngatia was on Thursday morning faced with a hard task of defending his position, a fresh nomination process was not required in the run up to the October 26 repeat presidential election.
Ngatia was trying to explain to the Supreme Court how National Super Alliance (NASA) presidential candidate Raila Odinga’s withdrawal from the fresh poll, did not warrant a call for fresh nominations.
According to him, Odinga only abandoned rather than withdrew from the electoral contest on October 10. In his own explanation, withdrawal has a specific legal significance that would mean fresh nominations as a necessity while abandonment is an exercise of freedom of choice.
“I will take that this was abandonment of the electoral contest. If that abandonment on 10th October was fully activated and implemented then it would have led to been equated to article 138(1) B and fresh nominations would have become necessary,” explained Ngatia.
High Court ruling and Maraga’s teaser
Ngatia said that Justice Mativo’s decision on October 10 to include Dr. Ekuru Aukot, and eventually all the eight candidates from August 8 election to contest in the repeat poll became the regulatory authority to be followed, therefore no nomination.
Chief Justice David Maraga asked Ngatia what would be his position on nomination, had Ekuru Aukot’s case not come in and what Odinga’s withdrawal could have meant. The counsel told him that the 2013 Supreme Court ruling would then have been the regulatory authority and therefore fresh nominations would have been required.
Deputy CJ’s challenge to Ngatia
Deputy CJ Philomena Mwilu however did not entirely agree with Ngatia’s response, considering that IEBC gazetted President Kenyatta and Odinga as the only candidates on October 5, and Justice Mativo’s ruling came 6 days later.
“The Mativo judgment was on the 11th October, but five days earlier, IEBC had said only two people were participating in the fresh election. So when would these nominations have been done, were it not for the Mativo ruling?” asked Mwilu.
“Ngatia then said; “I agree it would have been very difficult because nominations had to be done. It would have been practically impossible for nominations to happen within this time frame.”
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