Kenyatta Elected, Odinga Appealing to Supreme Court

The Kenyan election commission has declared Uhuru Kenyatta the victor in last Monday’s presidential election. With all of the votes in and with turn out around 86%, Mr Kenyatta secured 6,173,433 votes out of a total of 12,330,028, while his rival, Prime Minister Raila Odinga, took 5,340,546 votes. That apparently solid margin of victory, though, is not sufficient to prevent a court challenge. To secure a first-ballot victory, a candidate needed 50% +1 of the votes cast. Mr. Kenyatta is just above that level at 50.07%. Kenya’s Supreme Court will decide this.

In the aftermath of the last election in 2007, roughly 1,500 people died in tribal violence. Kenya is dangerously close to a repeat unless the actors move carefully and wisely. To their credit, both sides have tried to keep a lid on things and allow the justices to do their jobs. While calling his win a “triumph for democracy,” Mr. Kenyatta also asked his supporters to be “modest in our victory.” For his part, Mr. Odinga appealed for calm saying “any violence now could destroy the country forever.”

Article 140 of the new Kenyan constitution lays out the ground rules for Mr Odinga’s appeal. He has 7 days from the declaration of the election results to file a petition (that means Saturday, March 16). The court has 14 days to “hear and determine the petition and its decision shall be final.” The court can dismiss the petition and affirm Mr. Kenyatta’s victory; it can order a recount; or it can declare the election invalid and force a new election to be held in the next 60 days.

The Kenyans appear to be placing undue faith in the judiciary. That is not an attack on the caliber of the justices on the court but rather an observation that judges are human and susceptible to political influence. America’s Supreme Court decided the 2000 election. In doing so, judges who had argued for states’ rights throughout their careers ordered the State of Florida to stop counting votes, thereby making George W. Bush president. One hopes for a more principled decision in Nairobi.

Should the court affirm Mr. Kenyatta’s victory, the situation in the country becomes tricky. Mr., Odinga’s people will need to act in the best interests of the country and oppose the new president peacefully and within the bounds of the constitution and law. At the same time, Kenya may become something of a pariah with Mr. Kenyatta at the helm. He goes on trial in the Hague on July 9 to answer charges related to the deaths that followed the last . This will make donor nations like the US and UK wary of being too friendly with the new regime.

Mr. Kenyatta may take some comfort in the fact that the prosecutor has dropped the charges against a co-defendant, Francis Muthaura. Some witnesses are too scared to testify, and one has recanted his testimony. Prosecutor Fatou Bensouda made it clear that “this decision applies only to Mr. Muthaura. It does not apply to any other case.” Of course, if witnesses are too afraid to testify against Mr. Muthaura, one cannot guarantee those called in Mr. Kenyatta’s case will be any braver.

Regardless of what the Supreme Court decides, Kenya will still have dangerous waters to navigate.