Kenyan candidate turns to court to challenge defeat in presidential election

After losing last month's election, Raila Odinga has turned to the Supreme Court to contest the vote tally. The court's ruling is likely to be as political as it is legal, writes Ken Opalo.

• A version of this post originally appeared on the author's blog. The views expressed are his own. 

Kenyan Prime Minister Raila Odinga filed a court petition last Saturday challenging the declaration of Uhuru Kenyatta as president-elect – with 50.07 percent of the vote to 43.28 percent – after elections earlier this month.

In the petition, Mr. Odinga cites a host of factors that, in his view, significantly compromised the integrity of the election – including an unstable voter register, inconsistencies and errors in final vote counts, and failures in the electronic tallying system.

In a rally in the coastal city of Mombasa this week, Odinga claimed to have won the election with 5.7 million votes to Mr. Kenyatta’s 4.5 million.

With the filing of the petition, the country’s attention has now shifted to the Supreme Court. The court is constitutionally mandated to issue its ruling within two weeks from last Saturday. That gives them until Mar. 30 at the latest. 

Should the court find in favor of Odinga’s petition, Kenyans will have a re-run election in late May, with a possible runoff a month after that. The law says that in case of irregularities the court has to nullify the entire presidential election. It is unclear if the judges can rule on limiting the re-run to a runoff between Kenyatta and Odinga, rather than the entire slate of candidates. If the judges dismiss the case, however, Kenyatta will be sworn in on April 9.

It is obvious that the ruling will be as political as it will be legal. Six judges (see here) will hear the case as the nominated deputy chief justice is yet to be confirmed by the National Assembly.

Under normal circumstances five judges would have heard the case to avoid a tie, but since the selection of the five would have tilted the case one way or the other all six will be present. Should there be a tie the status quo will hold and Kenyatta will be sworn in early next month.

So how might the judges vote?

Based on my conversations with people in the know, it appears that the swing justices will be Chief Justice Willy Munyoki Mutunga and Justice Mohamed Ibrahim. The two are largely expected to adhere the most to the legal merits and implications of the petition. The eventual ruling will therefore partly depend on the ability of the two to persuade their colleagues. As president of the court, Mr. Mutunga will be under pressure to be on the winning side of the ruling.

A tie would be the worst of possible outcomes as it would suggest that the court – by far the most trusted Kenyan institution – is just as divided as the rest of the country.

The court’s only other ruling before this was on affirmative action to increase the proportion of women in the Kenyan parliament to a third. They voted against (arguing for a gradualist achievement of the same), with Mutunga the sole dissenter.

On the left-right spectrum Mutunga is the most progressive member of the court (and the highest rated public official, despite Kenya’s socially conservative bent). Justices Ibrahim, Smokin Wanjala, and Njoki Susanna Ndungu are considered centrists, while Jackton Boma Ojwang and Philip Kiptoo Tunoi are considered conservative.

Kennedy Opalo is a PhD candidate in political science at Stanford University, where he studies, among other things, elections and governance in sub-Saharan Africa.