This week the Supreme Court is expected to receive a petition challenging the declaration of Uhuru Muigai Kenyatta, who is scheduled to face trial at the International Criminal Court (ICC), as president-elect.
Kenyatta, who is facing five counts of crimes against humanity at the ICC, was declared the winner of the March 4 presidential poll by the Independent Electoral and Boundaries Commission (IEBC) after five days of vote counting during which Kenya held its collective breath. Prime Minister Raila Amolo Odinga, who was declared the runner-up, said soon after the IEBC’s announcement on Saturday that he will go to the Supreme Court to challenge the results.
The constitution does not allow Kenyatta to be sworn-in before the court rules on the proposed petition. Odinga’s legal team has seven days to file its petition from the time the IEBC publishes a notice in the Kenya Gazette declaring Kenyatta president-elect. The Supreme Court will then have 14 days to adjudicate the matter and its decision will be final. Those 14 days include the respondents to the petition being served with it and them making written submissions, plus a pre-trial conference between the parties involved.
IEBC Chairman Ahmed Issack Hassan said on Saturday afternoon that Kenyatta won the election with 6,173,433 votes, or 50.07 percent of the votes cast. This, Hassan said, meant Kenyatta had crossed the constitutional threshold of 50 percent of the votes cast, plus one, for a candidate to be declared the winner in the first round. Hassan said that Kenyatta also met the other constitutional requirement of securing 25 percent of the votes cast in at least 24 counties of the 47 that form Kenya.
Soon after Hassan’s declaration, Odinga held a news conference where he called the elections “tainted” and therefore he was going to go to court to challenge the result of the presidential poll. Odinga said that his party agents had queried the results of five constituencies, where they noted that the voter turnout ranged between 110 percent and 120 percent. Under the law the results of those constituencies should be nullified. He said this and other figures his agents queried would form the foundation of his case at the Supreme Court.
“We want to appeal to all Kenyans to respect the rule of law and the Constitution of which they are so proud,” Odinga said in his speech. “Let the Supreme Court determine whether the result announced by IEBC is a lawful one. We are confident the court will restore the faith of Kenyans in the democratic rule of law.”
When he disputed the results of the 2007 election in which he was a presidential candidate, Odinga declined to go to court, arguing that he could not trust the judges to make a fair ruling because they were heavily influenced by the executive arm of government and there were allegations of corruption being rife in the judiciary.
Since then the judiciary has been undergoing a transformation with a new Chief Justice, appointed through a two-stage public vetting process, and long serving judges being subjected to an audit of their character and past judgements.
In 2007, Odinga’s supporters went to the streets instead of the courts to air their grievances. Those protests turned bloody, with police shooting at protesters; other violence broke out in the country at the end of which more than 1,000 people had died. It is for his alleged role in that violence that president-elect Kenyatta is facing trial at the ICC, along with William Ruto, his 2007 rival turned 2013 ally, and Joshua Arap Sang.
Kenyatta made an acceptance speech soon after Odinga, at a different venu. He touched on what foreign governments and institutions can expect of him, without directly mentioning the ICC case against him:
“To the nations of the world I give you my assurances that I and my team understand that Kenya is part of the community of nations and while as leaders we are, first and foremost, servants of the Kenyan people, we recognize and accept our international obligations and we will continue to co-operate with all nations and international institutions– in line with those obligations. However we also expect that the international community will respect our sovereignty and the democratic will of the people of Kenya,” Kenyatta said.