Kenya’s Top Court Expected to Uphold Kenyatta’s Election Win

NAIROBI (Capital Markets in Africa) – Kenya’s top court will decide over the next two weeks whether to nullify the outcome of this month’s presidential elections that the main opposition says were rigged. Most legal experts and political analysts expect President Uhuru Kenyatta’s victory to be upheld.

Opposition leader Raila Odinga alleges that members of the ruling party hacked the electoral authority’s computers to deliver Kenyatta, 55, a second term. Odinga’s five-party National Super Alliance initially ruled out legal action because it didn’t trust the Supreme Court’s impartiality, but backtracked after international pressure and the deaths of supporters in violent street protests.

Odinga, 72, has failed on three previous attempts to win the presidency in Kenya, sub-Saharan Africa’s fifth-biggest economy and a regional hub for companies including Google Inc. and Coca-Cola Co. In all instances he alleged foul play, and a dispute over the outcome of a 2007 election triggered two months of violence that left more than 1,100 people dead.

“I don’t think they will succeed because of the composition of the Supreme Court,” said Ombati Omwanza, a Nairobi-based constitutional lawyer. “They would be very cautious to upset the status quo unless the opposition put up very good evidence to demonstrate that it wasn’t fair. Elections are very disruptive to the economy and the Supreme Court is aware of what a reversal would mean.”

The Supreme Court comprises seven judges, three of them appointed since Kenyatta came to power in 2013, including Chief Justice David Maraga and his deputy Philomena Mwilu. Should the court rule in favor of the opposition, new elections would have to held within 60 days. The petition will be filed later on Friday, opposition lawyer Paul Mwangi said by phone.

Kenyan financial markets have strengthened since election day, after widespread violence that many feared failed to materialize. The Nairobi Securities Exchange All Share index has gained 4.6 percent since Aug. 8, as the yield on the country’s 2024 Eurobonds has fallen 16 basis points to 6.13 percent and the shilling has advanced 0.5 percent against the dollar.

The opposition alleges that an algorithm was introduced to the Independent Electoral & Boundaries Commission’s computer systems to ensure Kenyatta maintained a lead throughout the count. It also said tallies were altered and the commission failed to secure and release documentation to enable the verification of results, as required by law.

Andrew Limo, a spokesman for the commission, denied there’d been any vote tampering or that electoral procedures were flouted.

Status Quo
While the onus is on the opposition to prove it was cheated and the limited time allowed to hear its petition favors the status quo, the Supreme Court’s decision will rest on whether the vote was transparent, accountable and verifiable, according to Philip Murgor, managing partner at Murgor & Murgor Advocates, a Nairobi-based law firm.

Odinga’s legal team will also need to secure access to the commission’s computer servers, which would enable it to show hacking took place to such an extent that the election was compromised, said Dismas Mokua, an analyst at Nairobi-based risk-advisory firm Trintari.

“There is no doubt the bench will be guided by rule of law,” he said by phone. “We have fairly strong institutions. If the evidence is overwhelming, I doubt they will ignore it.”

A former prime minister, Odinga waged unsuccessful presidential campaigns in 1997, 2007 and 2013, and if his latest challenge fails it may spell the end of his political career. The Supreme Court rejected his allegations of rigging in the 2013 vote that bought Kenyatta to power, a ruling Odinga on Wednesday described as “a travesty of justice.”

Trustworthy Team
Lilian Mahiri-Zaja, who served as the electoral commission’s vice chairwoman from November 2011 until January this year, said it was too early to speculate on the court’s decision. Computer experts will need to help the judges determine whether systems were breached, and Nasa will have to prove the final results weren’t derived from forms that were signed off at polling stations and constituency offices.

“In terms of the commission and chairman and the commissioners, I have faith in the people who were manning the elections,” she said by phone from Nairobi. “They were vetted in accordance with the law. We worked with some of their officials for quite a long time when we were in office. This is a team I trust.”

Patrick Lumumba, director of the Kenya School of Law, Ahmednasir Abdullahi, a Nairobi-based lawyer, and Patrick Gathara, an independent political analyst, all said they expect the court to rule against the opposition.

“The documents they will need are from the very same people they are suing,” Gathara said by phone. Nasa, Odinga’s alliance, “has to show there was electoral fraud and show it had a material effect on the result. The burden of proof is very high.”

Source: Bloomberg Business News