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"id": 760037,
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"content": "It talks of Article 138 (1) (b). That Article does not deal with the issues concerning the abandonment of a quest. I think that was an error on the face of the record. Even if you were to argue that it is in respect to the so-called abandonment of a quest, when you look at the Constitution and the relevant Article, nowhere in that Article do you see anything to do with abandonment. You only see the issue of death of a candidate. Since Raila has not died, one cannot rely on that so-called Article. Take into account that we have what we call Elections General Regulations of 2012, which have been made under the Elections Act. Regulation 52 of the Elections General Regulations of 2012 provide as follows: “If there is only one candidate left after the others have withdrawn, then that candidate must be declared the winner.” One, the withdrawal must be done within three days after nomination. Number two, once you do that, the candidate who is left is declared the winner. Yesterday, the Rt. Hon. Raila wrote to the IEBC purporting to have withdrawn from the presidential race. He did this way beyond the three days threshold established by that regulation. Therefore, we can argue that his withdrawal is illegal and has no effect. We can as well proceed with the elections on 26th October, 2017. If one was to construe that, then these amendments are important because we want to ensure we have free and fair election on 26th October, 2017. On the other hand, if we were to construe Regulation 52(1) as having no relation to Regulation 52(2), then from where I sit, Regulation 52(2) clearly provides that if you have only one candidate, then that candidate ought to be declared the winner. I urge the IEBC to do the honourable thing to declare the only one candidate duly nominated the winner. Mr. Speaker, Sir, I have to take into account the new development which happened today. Another candidate who contested in the presidential election on 8th August, 2017, has been given an opportunity to vie again. If the court did not allow Dr. Ekuru Aukot to contest, there is the likelihood that Hon. Uhuru Kenyatta would have been declared the winner. I urge Dr. Ekuru Aukot, wherever he is and other possible contestants, to withdraw immediately so that Hon. Uhuru Kenyatta is announced as the winner. If they do so, the current high tension in the country will calm down. If that was to happen, we would still press on with these amendments since they are good for posterity. However, the urgency would most likely go down. Of course, we need to ensure everything is in order and that our laws are okay. That is why we are having these amendments for posterity, not necessarily for the election scheduled to be held on 26th October, 2017. Mr. Speaker, Sir, I also want to draw hon. Members’ attention to Section (3) of the Judicature Act. It establishes the hierarchy of laws. That is the source of Kenyan law. These sources are the Constitution, statutes, delegated legislations, and other Acts of Parliament which we have imported from other jurisdictions that may have the force of law in Kenya. We also have court decisions. It appears in this country we have a preconceived notion that courts make law. This notion is slowly creeping in. They do not. They only do interpretation. In a situation where there is a clear clarity of a situation by an Act of Parliament, or even a legal instrument that has been made by a duly recognized body that makes subsidiary"
}