Legal Battles in the Kenyan Election

Supreme Court judges from left: Njoki Ndung'u, Jackton Ojwang, Philip Tunoi and Chief Justice Willy Mutunga during a November 15, 2011 sitting.  Photo by PAUL WAWERU. Photo Credit: Daily Nation.

As previously noted, according to the IEBC, Uhuru Kenyatta has (arguably) won the presidency as he received just over 50 percent of the vote, avoiding a runoff election with rival Raila Odinga. At least for now . . . . . Immediately after the IEBC made this announcement, Odinga stated that he would challenge the result with a petition to the Supreme court citing irregularities and asserting that the IEBC supporting a “tainted” electoral process (Mutai). Odinga is expected to file an official petition sometime this week. Odinga has seven days after the election results are announced to file a grievance and the Supreme Court has another 14 days to rule whether a recount or new election is warranted (Wallstreet Journal). 

Many praised Kenya’s election process as it was peaceful. However, the technical problems have raised concerns. These challenges have been confirmed by the IEBC including the electronic voter identification kit failing, forcing the IEBC to switch to manual identification. Also, the electronic transmissions of votes malfunctioned.  (Mutai). The IEBC however, denies any foul play or wrongdoing.

Claims have been made by CORD (Odinga's party) that over 30 constituencies in which voter turn out total was more than 100%. A political consultant told Al Jazeera, “purely from a legal point of view, they have a very strong chance of success- they have pretty good, solid grounds for filing the case” (Aljazeera). Others agreed, Joel Barkan, a renowned African scholar (whom I have met) at the Washington, D.C.- based Center for Strategic and International Studies, acknowledges that the breakdown and delays have given people a right to question the election’s validity. “Odinga’s supporters have legitimate questions that have to be answered before this election an be accepted. Kenyatta may in fact have won the election, but that hasn’t been demonstrated to supporters of Odinga nor to logical people watching the election” (Wallstreet Journal). Professor Barkan, their questions should be answered, but I am a logical person who watched this election.

All are pleased that the dispute has been brought to the court instead of the streets, in my view a real sign that Kenya's legal institutions are strengthening, but some believe the results are credible and nothing good will come from Odinga’s claims or a court ruling. The Court may order the districts that are accused of foul play or errors to recount or order a completely new election, which many urge against as they country is quite fatigued. Even with a recount, tensions are expected to mount. “With Kenyatta's total count just over 8,000 votes above the 50 percent mark, and with around 100,000 rejected ballots, a recount in these areas could cause Kenyatta's tally to drop below the crucial 50 per cent threshold, triggering a run-off election” (Aljazeera). The petition will test Kenya's judicial reforms and the independence of its high court. However, Chief Justice Willy Mutunga declared that the supreme court will handle any challenge in a fair, impartial, without fear, and speedy manner that is in accordance to the constitution (Reuters).

The issue of Kenyatta and his running mate on trial for the ICC is also of major concern. New York Times explains that western powers, including the U.S., have congratulated Kenya on a peaceful election, but has yet to identify, or congratulate Kenyatta directly.  “It is not clear what the West will actually do given that Kenya has become such a strategic partner in a volatile region” (New York Times).

~WMB (with assistance from Jillian Underwood)