Explainer: What next after Ruto-Raila stalemate

With the declaration of Deputy President William Ruto as the President-elect, focus now shifts to the Supreme Court after Raila Odinga who lost the 2022 presidential contest by a narrow margin rejected the results.

If Mr Odinga, the Azimio la Umoja-One Kenya Party candidate, files a petition at the Supreme Court it will be heard by a bench of seven judges.

The judges are Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.

Three of the seven judges nullified President Uhuru Kenyatta’s re-election in 2017. Chief Justice Koome and Justice Ouko, joined the Supreme Court in mid-2021.

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How Long will the Supreme Court take to conclude an election petition?

Any person wishing to contest the presidential election results has seven days within which to file a petition after the date of declaration of the results. The Supreme Court, which has the sole jurisdiction to hear presidential election petition, is supposed to determine the petition within 14 days from the date of filing and its decision shall be final.

If no petition is filed at the Supreme Court, President-elect Ruto and Deputy President-elect Rigathi Gachagua will be sworn in on Tuesday, August 30 as opposed to September 12 if a petition is filed.

If the presidential election results are challenged, the swearing-in will happen on the seventh day following the date on which the Supreme Court renders a decision declaring the election to be valid. If the Supreme Court nullifies the presidential results as happened in 2017, a fresh election will be held within 60 days.

Can the new Parliament hold its first sitting amid the presidential election petition?

Yes, Parliament will hold its inaugural sitting despite an ongoing petition challenging the results of the presidential election.

The Constitution requires that whenever a new House is elected, the President, by notice in the gazette, shall appoint the place and date for the first sitting of the new House, which shall be not more than 30 days after the election.

This means that the outgoing President Kenyatta will be forced to summon the first sitting of the 13th Parliament before September 9 if an election petition lingers.

Once the House is convened, the 349 MPs and the 67 senators will elect their new speakers who will then be sworn in by the respective clerks. Once sworn in, the speakers will swear in each MP. A candidate for speaker must be supported by at least two-thirds or 233 of the 349 MPs in the National Assembly.

One must be supported by two-thirds or 45 of the 67 senators to be elected Senate Speaker.

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Can President Kenyatta skip the ceremony to hand over power to Dr Ruto?

The Constitution says the President will hand over the instruments of power to the President-elect, but it is silent on whether he or she must be present physically.

It has been the practice in Kenya for the outgoing leader to hand over the instruments of power to the incoming President.

The Constitution says the President-elect must be sworn into office by either the Chief Justice (CJ), or his or her deputy when the CJ is unable to preside over the ceremony due to unavoidable circumstances.

The swearing-in ceremony must be held between 10 a.m. and 2 p.m.

The outgoing President will then hand over to his successor instruments of power and authority.

The Constitution defines the instruments of power and authority as the sword and the Constitution.

It will be interesting to see if Mr Kenyatta will attend the swearing-in ceremony of Dr Ruto having opposed his candidature and backed opposition chief Mr Odinga.

When can Kenyans expect a new Cabinet?

This depends on whether the dispute will move to the Supreme Court.

There are no constitutional timelines, but after swearing-in the new President is expected to name members of his Cabinet. In 2013, it took President Kenyatta two weeks to settle on four names for his 18-member Cabinet, indicating the kind of bargaining, head-hunting and scrutiny that went on behind closed doors.

The Constitution states that the President shall nominate and, with the approval of the National Assembly, appoint Cabinet Secretaries.

Upon receipt of the list of nominees, the National Assembly will have 21 days to vet, approve or reject the nominees to the Cabinet. If there is no petition filed challenging the presidential election results, the President-elect is expected to form a new government after 14 days of declaration of results.

If an election petition is filed, the President-elect will name a Cabinet after September 12 as opposed to August 30 if there is no petition challenging the poll results.

This can also delay until after 60 days if the Supreme Court nullifies the declaration of Dr Ruto as President-elect.

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What powers does the outgoing President have currently?

President Kenyatta lost several powers on August 9 when Kenyans went to the General Election and he entered the temporary incumbency phase.

He lost the powers to nominate or appoint judges of the superior courts, nominate or appoint any public officer, nominate, appoint or sack a Cabinet Secretary, a Principal Secretary and other State officers.

The outgoing President cannot wield the powers to nominate, appoint or dismiss a high commissioner, ambassador, or diplomatic or consular representative.

The Constitution further denies Mr Kenyatta the power of mercy and he, therefore, cannot pardon convicts.

The Constitution also curtails the President’s authority to confer honours in the name of the people and the Republic. During the temporary incumbency phase, the President-elect will receive security briefings from the National Intelligence Service, Kenya Defence Forces and the National Police Service.

The Assumption of Office of the President Committee, which is steering the transition process, is also required to facilitate communication between the outgoing President and the President-elect.

It is tasked with organising for the security of the President-elect, the necessary facilities and personnel for the President-elect, co-ordinate the briefings of the President-elect by relevant public officers and organise for the swearing-in ceremony.