Uhuru wins count, battle shifts to court

Saturday March 9 2013

President-elect Uhuru Kenyatta waves to supporters as he leaves the Bomas of Kenya, Nairobi after receiving the certificate of winning the election on March 9, 2013. Photo/BILLY MUTAI

President-elect Uhuru Kenyatta waves to supporters as he leaves the Bomas of Kenya, Nairobi after receiving the certificate of winning the election on March 9, 2013. Photo/BILLY MUTAI Nation Media Group

By JOINT REPORT The EastAfrican

The two weeks between the declaration of Uhuru Kenyatta as winner of the Kenyan presidential election and the swearing in ceremony, set for March 26, are likely to prove an anxious time for the country and the region as they await court rulings on cases challenging the result.

Mr Kenyatta won the presidency after he garnered 6,173,433 votes against his closest rival Raila Odinga’s 5,340,546 votes. He achieved the constitutional requirement of more than 50 per cent of the vote by getting 50.07 per cent (4,100 votes above the 50 per cent mark), against Mr Odinga’s 43.31 per cent.

Mr Odinga immediately announced he would challenge the result in the Supreme Court, citing irregularities in the electoral process.

In a press conference on Saturday afternoon, Mr Odinga accused the Independent Electoral and Boundaries Commission of delivering yet another “tainted election” and stating that “no one would have been happier than me if I lost fairly,” said he would contest the election outcome in court, since “we now have a judiciary and Supreme Court in whom CORD and most Kenyans have trust.”

Civil society groups, through the African Centre for Open Governance, (Africog) also indicated they would move to court in the course of the week to challenge the result.

A case they had filed earlier, seeking to stop the vote tallying process, flopped on Friday after they High Court ruled it had no jurisdiction to hear petitions touching on the presidential election. However, the court noted that the issues the group had raised were “not idle but should be pursued in the right forum.”

The final tally came in during the early hours of Saturday, March 9, five days after the voting closed on Monday.

The Independent Electoral and Boundaries Commission on Tuesday shifted to manual tallying of votes, following the of the electronic transmission system.

This sparked off protests from politicians from the main coalitions — Mr Odinga’s Coalition for Reforms and Democracy (CORD) and Mr Kenyatta’s Jubilee Alliance.

Besides the legal hurdles in Kenya, Mr Kenyatta and his running mate William Ruto are facing charges of crimes against humanity at the International Criminal Tribunal at The Hague over their suspected role in the 2007/8 post-election violence.

Mr Kenyatta’s trial is set to start in July while Mr Ruto’s is set for May 28. Their candidature for the two top seats generated controversy when a number of diplomats spoke out on the matter.

This left analysts and politicians concerned that Kenya’s key allies could be planning to impose sanctions on the country. However, both leaders have consistently stated that they will co-operate with the ICC to the end.

As the final results came in, the focus was shifting to how the two coalitions would battle it out in the legislature as they shared out seats in the Senate and parliament.

CORD seemed set to dominate the Senate, having bagged 23 out the 47 seats, against Jubilee’s 19. The Amani coalition, led by Deputy Prime Minister Musalia Mudavadi, who emerged third in the poll, got four Senate seats while Alliance Party of Kenya, friendly to Jubilee, bagged two.

The Senate will protect the interests of the counties, carry out legislation relating to the counties and can impeach the president and deputy president if need be.

In Parliament, Jubilee secured more MPs than Cord. Of the 291 MPs, Jubilee bagged 159 MPs compared with Cord’s 139.

The Jubilee coalition will also control most of the counties, having won 21 governors’ seats, while Cord got 20 governors out of the 47 counties. The remaining seven are shared among other independent parties.

Technology challenges also appeared to undermine the credibility of the Kenyan general election. During voting on Monday, the electronic voter identification kit procured late last year to identify voters failed, forcing the IEBC to switch to manual identification — a system that was castigated during the 2007 election, which was marred by rigging claims.

The challenges did not end there.

The electoral body was initially supposed to transmit results from the polling centres electronically to its tallying centre in Nairobi, from where they would be broadcast throughout the country.

Afterwards, polling heads from the country’s 290 constituencies would physically take the hard copies of the results to the national tallying centre.

The IEBC had to verify the results sent electronically before announcing the final results to the public. All this was expected to be done within a maximum of 48 hours after the polls closed, even though the law grants the poll body seven days after the voting day to announce the results.

But the electronic system failed, forcing the electoral body to adopt the manual tallying system.

According to the IEBC chairman, the fault was due to a programming error, which he said resulted from a conflict between the IEBC server and the database, resulting in the system multiplying the number of rejected votes by eight. At some point, with total votes counted at 5.6 million, the number of rejected presidential votes was at 338,592.

After switching to the manual system, the number of rejected votes fell dramatically.

Africog, in its application, said that in some centres the number of votes counted exceeded the number of registered voters, that the vote counting process was not transparent and that it violated Article 82 of the Election Regulations because the results were not transmitted electronically.

Article 82 requires that the results shall be submitted electronically to the returning officer in the manner prescribed by the Electoral Commission but the final results are subject to a verification process that is described under Article 73.

The elections regulations are silent on what happens if the electronic system fails to work. Law Society of Kenya chairman Eric Mutua said they were confident that the judiciary would be able to hear and adjudicate cases that arise from the elections.

“The judiciary is capable. First of all they have organised themselves so that there is a judge for every area, meaning everybody does not have to come to Nairobi as in the past,” said Mr Mutua.

Just before the General Election, Chief Justice Willy Mutunga, during an update on the judiciary’s preparation for the elections, said that the law had been amended to give magistrates jurisdiction over county assembly election disputes to avoid clogging up the High Court and delaying justice.

He said that he had cancelled all leave for judicial officers between March and October, adding that all judges and magistrates will work through vacation periods and, if necessary, will sit on Saturdays, Sundays and public holidays.

Court Registries will remain open from 7am to 6pm and these hours may be extended depending on the number of petitions received.

Petitions for the presidential elections will need to be filed within seven days of the declaration of the results by the IEBC in the Kenya Gazette and the cases must be heard and determined within 14 days and the court’s decision will be final.

Petitions for the parliamentary and county elections must be filed within 28 days of the publication of the results by the IEBC in the Kenya Gazette.

A petitioner seeking to challenge the election of an MP will be required to deposit Ksh500,000 ($5,803) while those disputing the election of a governor shall deposit Ksh100,000 ($1,161).

Anyone seeking to challenge the election of the president will be required to deposit Ksh1 million ($11,606) with the court.

Reported by Mwaura Kimani, Fred Oluoch, Peterson Thiong’o and David Mugwe