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Diaspora Lawyer Answers on Kenya Constitution Supremacy & Raila Withdrawal

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Attorney Njoroge Kamau at his law firm offices in Main Street, Worcester, MA Attorney Njoroge Kamau at his law firm offices in Main Street, Worcester, MA

“The constitution does not have laws of withdrawal. However, a candidate for presidential office can withdraw. The law requires there be only one candidate nominated for the presidential election to occur per constitution,’ answered Attorney Njoroge Kamau at his law offices in Boston region as he reviewed Kenya Constitution Supremacy laws and Raila Odinga withdrawal from Presidential race.

Questions and Answers.       

Q. Did Raila meet the Kenya Constitutional Requirement of a candidate withdrawal?  

A. A candidate is on the ballot for they exercised their Kenya Constitution rightarticle 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. 

Further met Kenya Constitution 137. (1) A person qualifies for nomination as a presidential candidate if the person (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.

The constitution does not have laws of withdrawal. However, a candidate for presidential office can withdraw. The Constitution law requirement is there be one candidate nominated for there to be an elected president per constitution. 

Q. What should IEBC do now that NASA Candidate has withdrawn?

A. Since the time for nomination is past then the only option is applying Kenya Constitution law 138. (1) If only one candidate for President is nominated, that candidate shall be declared elected.

Q. When withdrawing NASA cited a ruling by Supreme Court that a withdrawal leads to cancellation of an election? 

A. The supremacy order of laws anywhere is: Constitution, Legislated law and Supreme Court law interpretation. Nowhere does the constitution state that a person withdrawal can cancel an election. The Constitution and legislated law passed 2017 both establish the minimum requirement as one nominated candidate for the office of President to be filled.   

It is important to note Kenya constitution 94 (5) states, “No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.”

Q. What happens if IEBC declares President Uhuru Kenyatta as per Kenya Constitution 138 (1)?

A. Kenya constitution article 138 (10) requires IEBC to deliver a written notification of the result to the Chief Justice and the incumbent President. Swearing in would then follow. 

Q. What will be the result of the election?

A. Whereas invalidation of election did occur on September 1st 2017, the validity of the results was never questioned. The result of the elections as declared by IEBC before the ruling would be the result. IEBC has the materials stored and can reestablish the results as a historical record. 

Q. What happens if persons riot after IEBC announcement?  

A. The following Kenya Constitution laws should guide and protect Kenyans.

Kenya Constitution in article 37 Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities. 

Kenya Constitution 3. (1) Every person has an obligation to respect, uphold and defend this Constitution. (2) Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.

Chapter fourteen of the Kenya Constitution establishes the National Security organs for securing Kenya and the Constitution as follows: the Kenya Defence Forces; the National Intelligence Service; and the National Police Service. 

Q. What happens if persons start debates for Secession?    

A. Kenya Constitution does not say anything on secession. However, a country is created by the land and the people born from the land. Since Sovereign Power as established belongs to the People per Kenya Constitution 1, Secession would have to originate from Kenya Constitution article 1.

For succession to occur, land and people would secede. Considering Kenya Constitution creates Kenya land and Kenya people as one then the likely starting point would be Individual human rights and Individual property rights. Secession is very difficult because of individual human rights and individual property rights.    

Q. Should Parliament legislate the Elections Act 2017?

A. Parliament derives its powers from Article 1 (2) The people may exercise their sovereign power either directly or through their democratically elected representatives. 

As a body created to legislate laws, it should do its constitutional mandate. 

Q Will Kenya Constitution 2010 Survive? 

A. Kenya Constitution 2010 has become the Supreme Law. Since the ruling September 2017 I have gotten so many Constitutional questions. Kenya Constitution has grown stronger. The Constitution is making Kenya a better, healthier and happier nation.   

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