March 4 elections put Kenya's parliamentary and presidential democracy to the test. Now it is the hour of the judiciary.
It is a weighty responsibility that rests on the shoulders of Chief Justice Willy Mutunga. The court over which he presides must rule on the legality of the March 4 elections during which Kenyans chose a new parliament and president.
The six Supreme Court judges face a 14-day deadline which falls on Saturday (30.03.2013). They must decide whether to accept or reject objections raised by the losers of the elections, who are challenging the way the poll was conducted as well as its outcome.
Under the new constitution, every Kenyan can contest the result of an election within seven days of the official result being declared. A number of citizens and organizations have made use of this opportunity, the best known being defeated presidential candidate Raila Odinga. He garnered seven percent fewer votes than his rival Uhuru Kenyatta. Odinga's Coalition for Reform and Democracy coalition (CORD) believe they have been cheated of victory. "We know that the result of the 2007 election was rigged," asserted Amos Wako, one of the lawyers on CORD's legal team. "We won't let our votes go missing a second time," he added.
Raila Odinga, who was defeated as presidential candidate in 2007 as well as in March 2013, would like the March 4 poll to be declared null and void. This is the substance of his petition to the Supreme Court. It is a 40-page document in which he lists alleged irregularities. It was not legal, he argues, to change the voting system on election day. He was referring to an on-the-spot decision by a number of polling stations to ask voters to fill out ballot papers by hand following technical defects in the electronic voting equipment.
But Odinga does not necessarily want the whole election to be overturned. Even a recount in a few constituencies could tip the scales.
Macharia Munene, political analyst with the United States International University in Nairobi, said that if it emerged after a recount that Uhuru Kenyatta had been accorded 8,000 more votes than he was entitled to, then "he could fall below the 50 percent mark." Kenyatta's margin of victory was that thin. "That could mean a run-off," Munene added. Then Odinga would once again have a realistic chance of securing the presidency, because he would be able to appeal to voters who backed the six other candidates running against Kenyatta in the first round,.
Odinga achieved a preliminary victory in his court battle on Monday when the Supreme Court ordered a recount in 22 of the 291 constituencies. The court is considering two other petitions in addition to the one lodged by Odinga. The African Center for Open Governance (AFRICOG), an NGO, is also complaining of irregularities in the conduct of the election. They want it to be annulled.
Three of Kenyatta's supporters, meanwhile, are calling on the court to rule out the inclusion of spoiled ballot papers when adding up the total number of ballots cast. If the court were to rule in their favor, the proportion of votes for Kenyatta would rise and he could avoid a run-off.
The legal deadline of two weeks has not given the six judges much time to investigate the allegations. The lawyer for AFRICOG had requested on Tuesday (26.03.13) that the electoral rolls in all 33,400 polling stations be scrutinized. The court turned this down, but Judge Ibrahim Mohammed said that if they had made their application earlier, it would have probably been granted. The Kenyan Electoral Commission estimates that it would have taken between seven and ten days to go through the electoral rolls.
Chief Justice Willy Mutunga doesn't have seven to ten days. He has to decide now. It is no easy task. Whichever way the court decides, the loser will be displeased and fear of a repeat of the violence of six years ago persists.