The Kenyan voter, caught up in the whirlwind effect of the imminent general elections is constantly bombarded with high tech propaganda and counter propaganda. Despite reports of electoral violence against voters (especially female civic aspirants) and the ensuing condemnation of such acts; the forecast for days ahead offers little comfort. Impending inflation looms as a flash money floods into the economy.  Most worrisome though is that the impending storm threatens to hit crescendo on a constitutional note. And here, by and large, lies the crux of the matter, yet no one is discussing it.

Under section 5(3) of the Constitution of Kenya, whenever Parliament is dissolved, an election of a President shall be held at the ensuing general election. Section 5(2) requires that the person nominated be a citizen of Kenya; have attained the age of 35 years and be registered in some constituency as a voter in elections to the National Assembly. At that election, where more than one candidate for President is validly nominated, a poll shall be taken in each constituency for the election of a President.  The polls for the election of a President and for the election of a member of the National Assembly shall be taken separately.

In determining who the President is after the general elections, it shall be the candidate that is elected as a member of the National Assembly, who receives a greater number of valid votes cast in the presidential election and who, in addition, receives a minimum of twenty five percent of the valid votes cast in at least five of the eight provinces.

Two of the three presidential candidates are optimistic of winning their parliamentary seat even without campaigning. Although Presidential candidate, Hon. Raila, is most favoured in recent opinion polls for the coveted seat, reliable information has that he faces the toughest constituency poll contest as his detractors make efforts to short-circuit his presidential election by sabotaging his election at the constituency level.

What would happen if a presidential majority winner lost at constituency level? In the face of probable mass (and possibly violent) rejection of such a result and accusations of rigging, especially where it is a “popular” candidate, what would happen? What if a candidate garnered the greater number of votes than other candidates, and also the twenty five per cent in five of the eight provinces but lost the election bid for Member of Parliament of his constituency? Would his running mate automatically assume the top seat? Would the next best candidate assume the top position? What if the next “best” candidate is elected at the constituency level but has not garnered anything close to the twenty five percent in five out of the eight provinces? What if the “successful” presidential candidate’s election at constituency level is challenged? What if the election of the “successful” candidate as president was challenged on grounds of qualification, validity of election as president or validity of elections as a member of parliament? Such questions quietly nag the electorate, but no one has stepped up to reveal the answers. Interestingly, the answers lie in the Constitution.

Section 5(4) (d) of the Constitution provides that where no candidate is duly elected in accordance with section 5, a fresh election of a President shall be held. Where a fresh election is held pursuant to this section, the only candidates shall be the candidate who scored the highest number of votes at the election and one among the remaining candidates who has the highest total of votes at the election. In such an election:

(a) Every candidate for President shall be nominated by a political party in the manner prescribed by or under an Act of Parliament from amongst the elected members of the National Assembly.

(b) The nomination of a candidate for President shall not be valid unless it is supported, in such manner as may be prescribed by or under an Act of Parliament, by not less than one thousand persons registered as voters in elections to the National Assembly;

(c) Where only one candidate for President is validly nominated, he shall be declared be elected as President;

(d) Where more than one candidate for President is validly nominated, a poll shall be taken in each constituency for the election of a President;

(e) The candidate for President who receives a greater number of valid votes cast in the presidential election than any other candidate and who, in addition, receives a minimum of twenty five percent of the votes cast in at least five of the eight provinces shall be declared to be elected as President.

Section 10 saddles the High Court with the mandate of the determination of questions as to validity of presidential elections.

Section 6(1) provides that if the office of the President becomes vacant by reason of the elected President ceasing to hold office pursuant to an election petition being presented under section 10 and being found against him, an election shall be held within ninety (90) days immediately after the vacancy. The financial implications and whether or not Kenyans and indeed the electoral commission are prepared for such a contingency is anyone’s wildest guess.

While the presidential office is vacant by reason of the foregoing, Section 6(2) requires that the functions of the office shall be exercised by the vice president. Generally, whomever the presidential candidates have chosen as their running mates are touted as and are positioned to assume the vice presidency upon their candidate’s successful election to presidency. Therefore, one would assume that the presidential candidate’s running mate (if not themselves faced with an election petition over their own election) will upon their own election assume both the functions of the office of the vice presidency and in the interim the functions of the presidency (rather than the office itself) during any presidential vacancy, pending the presidential election being held and determined.

However, the fact is that the vice president is a presidential appointee under section 15(1) of the Constitution and this being from among the ministers who are elected members of the national assembly. This implies that the President must first appoint a cabinet and therefrom the vice president, which will not have happened as there will technically be no President. Who then is the vice president referred to in section 6(2)?It is the current vice president! Section 15(6) provides that the office of the vice president is only vacant if the president so directs (which the incumbent has not), or if the holder of the office ceases to be an elected member of the National Assembly by reason other than the dissolution of parliament (which he has not ceased) and “upon the election of a person to the office of President.” The vice president holds on to his job until the next president is sworn in.

In the hypothetical case that the vice president is for any of the first two reasons above no longer vice president, or he feels that he is for any reason unable to discharge the functions of the office of the president, the constitution provides that it shall then be such minister as is appointed by the cabinet. One cannot help but remember that the ministers are themselves candidates for re-election at the constituency level and have their own political affiliations. It is left to the imagination the likely stalemates that may arise from this. Worse yet, this could be exploited as a loophole through which to plant a stooge in Government for personal political interests. Indeed if the incumbent president is the one challenging the newly elected president, this presents an opportunity for continued presence by proxy at the state house!

Of course all the foregoing is for the common citizen nothing but conjencture and a lay person’s interpretation of the constitution. It would of course be left to the learned friends amongst us and the ultimately the High Court to determine the course of events based on the provisions of the constitution. Unfortunately, current political temperatures do not betray such a peaceful judicial and subsequently democratic determination of any of the questions. But one can only hope and wait, and vote vigilantly.