The constitution confusion that characterized Tuesday finally received some clarity yesterday.

On Tuesday, Nasa leader Raila Odinga and his running mate Kalonzo Musyoka called a press conference to announce their withdrawal from the 26th October fresh election. Raila revealed that they had withdrawn officially by writing to the IEBC.

The supposed withdrawal happened on the same day Jubilee sponsored amendments to the electoral laws, and was interpreted by many as Raila insulating himself from possibly being boxed into not withdrawing.

Then came Wednesday, and Justice Mativo gave a determination on whether Ekuru Aukot should be included in the fresh election. It was a victory for Ekuru, but the court went further in its interpretation of the law, perhaps bringing some sense of clarity to Tuesday’s confusion.

Justice Mativo observed that the clause in the Mutunga 2013 ruling that IEBC had based its decision to exclude all other candidates except Uhuru and Raila, was an obiter dicta. Meaning it was said as a ‘by the way’ and therefore cannot be interpreted as law.


In making that determination, Justice Mativo inadvertently determined that the same clause Raila had relied on when withdrawing, hoping to cause an election cancellation, was also stated as a by the way.

This automatically meant that the cancellation of an election cannot therefore be caused by any candidate’s withdrawal.

Later at night, IEBC released a statement re-affirming the same. In the unsigned press release, IEBC stated that all 8 candidates will be included in the fresh election, which will proceed as scheduled on October 26th.

The commission also made an observation concerning Raila’s withdrawal, stating that though they have received a letter from the Nasa principal, he has not filled the required Form 24A to effectively make his withdrawal official and final. They said that when and if Raila and Kalonzo submit the signed form, then their withdrawal will be processed in accordance with the law.

Read IEBC’s statement below.