The
post-mortem on Kenya's 4 March election could prove as important as
the vote itself. It is under way after Raila Odinga, presidential
candidate for the Coalition for Reforms and Democracy (Cord),
submitted a detailed petition to the Supreme Court 16 March arguing
that the election result giving victory to his opponent to Uhuru
Kenyatta lacked credibility and legitimacy.
Those
Western countries who had warned about the consequences of voting for
Uhuru Kenyatta and running mate William Ruto because of the charges
they faced at the International Criminal Court, now maintain a
discreet silence. Some are briefing journalists that they find the
election results entirely convincing, echoing the cautious
assessments released by international observers such as the African
Union, the Commonwealth and European Union (which contributed some
$100 million to the cost of the election).
By
all accounts, Kenyatta and Ruto have won the first bout of arm
wrestling over the ICC case. Pressure on the court and its witnesses
will increase massively should Kenya's Supreme Court confirm that
Kenyatta's election is legitimate.
Odinga's
petition to the Supreme Court aims not just to prove that Kenyatta
did not surpass the 50% threshold necessary to avoid a second round
of voting – the Independent Electoral and Boundary Commission
(IEBC) claimed he did that by just 8,400 votes -- but to prove the
process was so flawed that an entirely fresh set of elections should
be held.
Despite
Odinga's penchant for hiring blue chip advisors – he had Margaret
Thatcher's political consultants Bell-Pottinger working on election
strategy and he has hired William Burck, George Bush's lawyer in the
2000 election, to argue his case in the Nairobi Supreme Court – he
has a formidable task ahead. Possession, in the case of Kenya's
presidency, is nine-tenths of the law. Judges, no matter how
non-partisan, don't like annulling elections, least of all in Kenya's
febrile political climate.
From
briefings that leaders of Kenyatta's Jubilee coalition gave to the
press last week it is unlikely they would be prepared to accept a
court ruling that annulled the election results. They have warned of
any moves that could disturb the 'fragile peace' in the country. And
from the look of their supporters bussed into Nairobi last week, that
is no idle threat.
Kenyatta's
team is already acting like the new government. “These days you can
become an incumbent before you are inaugurated,” a veteran
journalist joked last week in Nairobi. Musalia Mudavadi, the third
running presidential candidate after Kenyatta and Odinga, has already
been offered and apparently accepted a job with the Jubilee team. The
team also looks confident of stitching together an alliance of MPs
that would give them a small majority in parliament.
So
far so consistent, when it comes to the leading political players.
Victor celebrates and starts to look presidential; aggrieved party
runs to the courts in the name of rescuing democracy. It is the third
parties whose behaviour is more curious.
Issack
Hassan, chairman of the IEBC and his colleagues, far from acting in
the spirit of the reformed constitution which is meant to guarantee
the independence of the electoral body, are fighting their corner
with a vehemence which has raised new questions about the management
and probity of the commission (Africa Confidential Vol 54 No 6).
Journalists and Odinga's legal team, complain that questions are
parried and sets of data, even basic numbers about turnout and the
electoral registration process, are being withheld by the IEBC.
At
least four areas of concern emerge from the IEBC's management of the
elections:
*
the credibility of the voters' register and the failure of the
biometric registration systems;
*
the breakdown of the electronic vote transmission system which was to
have provided a check against vote tampering in the constituencies;
*
reports that at several polling stations the numbers of votes cast
exceeded the number of registered voters;
*
lack of internal consistency in the election results, that is the
voting figures for the presidential candidates and rejected ballots
didn't add up, as well as improbable discrepancies between the
presidential and parliamentary votes.
The
other third parties, the spin doctors and lawyers, are equally active
in pushing their agendas. Kenyatta and Ruto's advisors speak gaily
about the imminent collapse of the ICC case against their clients.
Jendayi Frazer, former United States Assistant Secretary of State and
family friend of Kenyatta, lambasts her government's stand on the ICC
arguing the court has lost legitimacy because of its Africa
obsessions. Odinga's team say they had advocated credible local
trials for the accused all along.
All
this will put added pressure on Kenya's Supreme Court and Chief
Justice Willie Mutunga who told Africa Confidential about the trouble
his taken to ensure that its judges cannot be accused of political
bias.
