The electoral commission will likely invite all eight candidates who took part in the August 8 presidential election to take part in the fresh poll.
It will also maintain the October 26 election date, according to a draft statement from the commission, leaked to the media last night.
Nasa candidate Raila Odinga, who had written to the Independent Electoral and Boundaries Commission quitting the race, has effectively been put back on the ballot.
He will now need to formally exit the race by filling Form 24A, a process Nasa considers unnecessary but that they might have to go through to remove him from the election.
Strangely, even though commissioners who spoke privately to the Daily Nation confirmed the authenticity of the statement, the formal issuance was postponed to today, in what appears to be either indecision or divisions within IEBC.
The statement was circulated unsigned by chairman Wafula Chebukati but the decisions were arrived at after an eight-hour meeting at the Bomas of Kenya.
Mr Odinga dramatically withdrew his candidature on Tuesday and demanded another election 90 days after fresh nominations.
But a judgment by Justice John Mativo ruling that allowed Thirdway Alliance candidate Ekuru Aukot to be included in the fresh poll, left the door open for any of the other candidates, but with an option of opting out, if they so wished.
The High Court decision, the IEBC statement said, meant that even Mr Odinga was still a candidate until he withdraws again, not using a letter as he did on Wednesday, but by a prescribed form.
“It is the commission’s position that the candidates for the fresh presidential election scheduled for October 26, 2017 shall include all the eight candidates who participated in the 8th August presidential election,” the statement said.
Until one signs the prescribed form of withdrawal, according to the statement, all the eight will be deemed as candidates for the October 26 race.
IEBC had knocked out all the other candidates, leaving President Uhuru Kenyatta and Mr Odinga as the sole candidates, saying it was relying on decisions of the Supreme Court in 2013.
Relying on a seemingly non-binding interpretation of the law in the same judgment, Mr Odinga had left the race and demanded that the election be run afresh, including new nominations.
Apparently, IEBC commissioners had problems immediately agreeing on a common position following Mr Odinga’s decision.
After having meetings with its lawyers that went late into the night after Mr Odinga withdrew on Tuesday, the commissioners yesterday spent nearly eight hours in a meeting that was elongated by the High Court ruling that took them back to square one: Just who should run in the fresh poll as ordered by the Supreme Court within 60 days?
But the ruling, and the inclusion of all the eight candidates in the race, comes with a cost.
French digital security firm, OT Morpho whose 400 workers are working on the equipment at a godown on Mombasa Road in Nairobi had confined the candidates to President Kenyatta and Mr Odinga.
“Due to the limited time frame,” the agreement says, “the system (results transmission system and kits) cannot accept other candidates for this October 26 election.”
IEBC communications manager Andrew Limo said Justice Mativo’s ruling required the commission to relook at the logistical, administrative and technological aspects of the repeat elections. He said the reconfiguring of the Kiems kits, which was ongoing, and the design of the presidential ballot paper, will have to be reviewed to accommodate more candidates.
There are a total of 45,000 voter identification and results transmission tablets which need to be configured. For any of the 40,883 tablets for each of Kenya’s polling stations — with three backup kits for the country’s 1,450 wards — to send in presidential elections results for any candidate, their name has to have been entered into the system before polling day.
Mr Limo said Mr Chebukati had declared that the commission will not appeal against the High Court ruling that opened the door to more candidates to be on the ballot paper.
“The chairman has made it clear that we were not aggrieved by the ruling. We will follow the orders of the court,” he said.
Unless the situation changed, Mr Limo said the commission was still preparing to hold the repeat elections on October 26.
“Up to now we are still working towards that (October 26). If there is any change, it will be communicated,” he said.
Already, independent candidate Japheth Kavinga Kaluyu and his running mate Muthiora Kariara have said that they will be running on October 26, with Alliance for Real Change Kenya candidate Mohamed Abduba Dida and independent candidate Michael Wainaina all expressing interest in participating.
On Wednesday, a commission source told the Nation that commissioners could not agree on what position to take after Mr Odinga’s announcement. Some thought, according to the source that Mr Kenyatta ought to have been declared the president-elect while others wanted to wait for the decision of the High Court before arriving at a decision.
Earlier Wednesday, there was debate as to what withdrawal by a candidate entails.
One school of thought, now confirmed by the commission, was of the view that Mr Odinga needed to sign Form 24A.
However, head of Nasa secretariat Norman Magaya termed the requirement of Form 24A as misplaced.
“The requirement for one to sign Form 24A is grounded on Regulation 52, which requires one to do so within three days after the nominations. But in this case, we are dealing with an election pursuant to Article 140 of the constitution and therefore, the requirement for Form 24A does not apply,” said Mr Magaya.