What is Odinga’s case against Uhuru Kenyatta?

By MAKAU MUTUA

Posted  Saturday, March 16  2013 

It is fair to say that President-elect Uhuru Muigai Kenyatta, and Deputy President-elect William Samoei Ruto, shouldn’t rush to measure drapes for State House.

That’s because Cord flagbearer PM Raila Odinga has asked the Supreme Court to nullify Mr Kenyatta’s victory.

It is an epochal matter for Kenya. It will forever define the Supreme Court, and cast a huge shadow on future elections.

That’s regardless of how the highest court in the land rules.

Hold onto your seats, and put your heads on a swivel because they’ll spin.

They say the Civil War made America one nation – e pluribus unum, Latin for “out of many, one”. Methinks the 2013 election may be Kenya’s “e pluribus unum moment” – a moment of reckoning.

Mr Odinga has publicly stated that he will abide by the court’s decision, no matter how it comes down. That’s statesmanlike, and the epitome of the rule of law. No one – and I mean not a single soul – who wants to be President should defy the Supreme Court.

That means Cord and all those who voted for, and supported Mr Odinga, must swear to accept the court’s opinion, even if they disagree with it.

No enduring civilisation – or great nation – has ever been built on lawlessness, or criminality.

I expect no less from Mr Kenyatta and Mr Ruto. They, too, must pledge to honour the ruling of the court. Let’s be patriots.

What’s Mr Odinga’s case against the IEBC’s declaration that Mr Kenyatta was the victor? The case hasn’t been litigated yet, but the outlines of Mr Odinga’s core legal arguments aren’t a mystery.

We know that an election isn’t a single event, but a process.

There are several indispensable milestones that must be hit for an election to be free and fair.

There must be universal suffrage. All eligible voters must be given ample opportunity to register in credible, verifiable, tamper-proof rolls.

Candidates must enjoy an environment free of repression. Voters must be un-coerced. The press must be free. The state must not favour – or hinder – any candidate. Nor can it “doctor” the process to suit a desired outcome.

The electoral body, the IEBC, must be completely independent of the state, and free of the spell of government mandarins.

Importantly, the IEBC must be professional, competent, and technically functional. It must be completely impartial, and be seen to be so.

Granted, no human beings are perfect, nor can they be, much less the machines and gadgets
.

But human functionality and technical competence must be optimal, and able to do the job.

No one expects IEBC chair Issack Hassan to be superhuman, or the IEBC’s technical architecture to be flawless. But the complete collapse of the IEBC’s technological infrastructure would be unacceptable.

Technology was supposed to avoid the manipulation of the manual systems used in 2007.

As I understand the case, Mr Odinga is arguing that there was systemic failure and malignant human manipulation of the IEBC’s technical infrastructure and its records.

It’s not disputed that computer automated systems and other electronic transmission gadgetry completely collapsed. Was this incompetence, technological illiteracy, or lack of adequate preparation?

Mr Odinga would have to show that such a collapse had a material and prejudicial impact only on his candidacy alone, and not Mr Kenyatta’s.

The IEBC will most likely argue that it cured this problem by resorting to reliable manual systems.

This is a matter of fact, not law. Mr Odinga will most likely counter that reverting to manual systems opened the door to cheating.

Mr Odinga will argue that the IEBC Final Register of Voters was tampered with reducing the number of voters in Cord strongholds, and increasing them in Jubilee’s.

Mr Odinga has submitted that he possesses datum to prove this explosive point.

The Supreme Court would most likely nullify the presidential vote if it’s proved the numbers tampered with were sufficient to cannibalise the “will of the voters”.

But this is a tall order, and the statistical evidence must be damn near impeccable.

I don’t believe it’s legally necessary to establish who tampered with the numbers, and why. The legal standard may be met by proffering statistical proof of tampering without showing motive, conspiracy, or planning. Per se evidence may do.

The other key legal argument by Mr Odinga is that the tallying of the votes was compromised through ballot stuffing, under-counting, under-reporting, or not reporting his vote totals correctly.

Again, a forensic audit of the vote totals at the polling stations and constituency tallying centres – using actual manual entries – may speak volumes. If there was sleight of hand, or cheating, it could be caught in the audit.

But the audits could also be supplemented by eye-witness testimony. Did party agents see any shenanigans? Are they credible? Who else – perhaps a conscience stricken, or scared, official culprit – would testify?

Are there witnesses, or conspirators to the dastardly acts, willing to come forward? Did the conspiracy extend to the IEBC at Bomas?

Mr Odinga believes that a “hidden hand” of the “deep state” gave Mr Kenyatta an edge.

He is likely to argue that the “sabotage” of the IEBC technological infrastructure was not accidental, but deliberate, and orchestrated by “dark forces” deep within the state.

But the Supreme Court is not a political forum, but a court of law. That’s why such allegations must be credible to be legitimate.

What sort of evidence can be adduced? I believe the case will turn not on what the “deep state” may have done, but what the forensic audits reveal.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.