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Kenya Constitution Procedure to Become Candidate & Withdraw From Presidential Race

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Kenya Constitution safeguarding and lifting Kenya high up. Kenya Constitution safeguarding and lifting Kenya high up.

Raila Odinga is reported saying, "This is a democracy. There is freedom of choice and if I freely choose to stay away, there is no way anybody, including the courts, can force me to participate.”

Kenya Constitution 2010 creates the office of President and gives any Kenyan who wants to be President the right to be President through in article 38, the constitution sets the requirements the person has to meet in 137 and the procedure of filling the office of President in Kenya constitution 138. The constitution does have any laws relating to a candidate who is nominated withdrawing. The constitution only requirement is a minimum of one person be nominated for there to be a President. And if more than one person is nominated then a democratic election be held. 

Applicable Law of Elections

Kenya Constitution article 1. (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives.   

The Constitution law 1 (2) creates the exercise of the Sovereign Power through democratically elected leaders. 

Laws of Becoming a Candidate for President and President

Kenya Constitution article 38 (3) Every adult citizen has the right, without unreasonable restrictions— (c) to be a candidate for public office, or office within a political party of which  the citizen is  a member and, if elected, to hold office.

Kenya Constitution 137. (1) A person qualifies for nomination as a presidential candidate if the person (a) is a citizen by birth; (b) is qualified to stand for election as a member of Parliament; (c) is nominated by a political party, or is an independent candidate; and (d) is nominated by not fewer than two thousand voters from each of a majority of the counties.

Kenya Constitution 138 (1) If only one candidate for President is nominated, that candidate shall be declared elected. (2) If two or more candidates for President are nominated, an election shall be held in each constituency. (3) In a presidential election— (a) all persons registered as voters for the purposes of parliamentary elections are entitled to vote; (b) the poll shall be taken by secret ballot on the day specified in Article 101 (1) at the time, in the places and in the manner prescribed under an Act of Parliament; and (c) after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result. (4) A candidate shall be declared elected as President if the candidate receives— (a) more than half of all the votes cast in the election; and (b) at least twenty-five per cent of the votes cast in each of more than half of the counties. 

Kenya Constitution 140. (3) 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.

Presidential Race Cancellation 

Kenya Constitution 138 (8) A presidential election shall be cancelled and a new election held if— (a) no person has been nominated as a candidate before the expiry of the period set for the delivery of nominations; (b) a candidate for election as President or Deputy President dies on or before the scheduled election date; or (c) a candidate who would have been entitled to be declared elected as President, dies before being declared elected as President.

Candidate Withdrawal. 

Kenya Constitution has no direct laws stating what should happen if a nominated candidate per Kenya Constitution decides he or she will withdraw from the race.  

With consideration that running for president is an Individual right article 38 then the candidate for presidential office has the right to withdraw. 

With the consideration that a Presidential candidate is nominated by a party per Kenya Constitution 137 then the candidate would have to withdraw by writing to the party and nominators.  

Applicable Law after Withdrawal

If a candidate withdraws before the date of presenting nomination papers per 138 (8) (a) lapses, then a party can nominate another person and IEBC can receive the nomination. 

If a candidate withdraws, after expiry of nomination, and there is only one candidate left; then IEBC would apply Kenya Constitution Article 138. (1) If only one candidate for President is nominated, that candidate shall be declared elected. 

Raila Odinga Withdrawal October 26th Election.

  1. The candidate writes to ODM Party and NASA coalition to withdraw. 
  2. ODM Party and NASA Coalition write to IEBC to withdraw the nominated candidate.
  3. IEBC apply Kenya Constitution 138 (1) If only one candidate for President is nominated, that candidate shall be declared elected. 

IEBC Elections if No Withdrawal Legal Documents Established.

  1. IEBC take ballots to each polling station.
  2. Kenya National Security Organs secure public roads and polling stations so the exercise of Sovereign Power article 1 (2) occurs. 
  3. Kenyans go to the polling stations and exercise their right to vote and during the process adhere to Kenya Constitution 3. (1) Every person has an obligation to respect, uphold and defend this Constitution.
  4. IEBC count and announce results. 

It is important to note that elections are a constitutional process and should strictly follow constitutional law.  

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