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The Africa Confidential Blog

  • 18th March 2013

The West wobbles as Odinga tests election in the courts

Patrick Smith

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.