Kenyan constitution is a marvel to behold. One of those marvels is that there is no gap in leadership. Every office bearer is in office until hand-over, not until an election. What that means is former Nairobi Governor Evans Kidero was governor until he handed over power to Nairobi Governor Mike Mbuvi aka Sonko. In like manner Uhuru is still president until he hands over, to himself or to a president-elect.
As such we have a substantive president in Uhuru, now this is not good news for NASA but the law is the law. Now the question is what would be the NASA strategy? NASA is on a boycott mode. Members of Parliament and Senate have said they will do no business in the houses. Raila on his own has said that he will boycott the elections unless his list of demands is met and in full.
Now what if Kenya doesn’t have an election within the next 40 days or so; what would that mean? First, good news is we would save between Sh12 and 20 billion. This would be a great thing especially if the money is used in giving business to local industry. Secondly though, holding no election would mean that Uhuru stays on as president, but the question would be, for how long? There is no other period to have an election except within the stipulated 60 days. Since we are not in a state of war, we cannot postpone elections. Hence 60 days is all we have.
The Supreme Court wouldn’t help either, because there is no constitutional basis to do so. It is therefore safe to assume that no election in 60 days means no election until the next constitutionally recognised period, which is the first Tuesday in the month of August 2022. Therefore since the Constitution does not allow for a vacuum, Uhuru will stay on as President. This part is easy enough to grasp but now will the next five years be considered a new term or will it be still his first term? Since the election on August 8 was null and void, legally there was no election. Meaning his term hasn’t ended. Therefore, and I tread carefully here, no elections means Uhuru can run again for president and be president until 2027.
The implications of this are far-reaching and mind-boggling. What happens to the nation? Well, the answer is for the most part we will be fine. It simply means the status quo remains and is maintained. However, this throws a spanner in the NASA strategy. Do you really want to go in this direction? I think not. Are there options? Yes. Options available First, instead of a boycott, NASA could simply withdraw its candidacy, meaning the law would recognise Uhuru as having won the election. This would save us billons and a lot of time.
The best part for NASA is that this would start Uhuru’s second term. Meaning he can’t run again. Secondly, NASA could participate in the election substantially and win or lose it. This would then allow them either to ascend to power, accept a loss or more likely dispute the results. With a NASA-friendly judgment at the Supreme Court, NASA has nothing to lose in going to an election, if IEBC will not have styled up, NASA can return to court, and the courts can declare another 60 days.
Uhuru will still be president but by this time we will all be exhausted and NASA can then bargain. What NASA would bargain for is a matter of great speculation. Caretaker government or coalition co-opting NASA into government post-election? All these are possible but NASA has to play its cards well. In strategy you must always assume that the worst case scenario has happened and is true, therefore that NASA and Jubilee have to assume the worst.