Kenya’s presidential election court battle is being watched keenly not just by Kenyans, but also by the entire continent.
It is no doubt a landmark case that will set precedence and be quoted in courts across Africa.
The six judges of the court will determine whether the presidential election was conducted in a free, fair and credible manner. It will also determine whether President-elect Uhuru Kenyatta and his deputy, William Ruto, were validly declared as such and if rejected votes should have been included in the final tally of the poll.
This is not the first legal presidential dispute in the country. A contested result at the onset of multi-party politics in 1992 and again in 1997 ended up in the high court. At least seven petitions were filed and all were dismissed on technicalities.
The high court verdicts did not surprise incumbent president Daniel Arap Moi was sworn in even before the hearings started. The judiciary then was highly compromised and seen as an extension of the executive arm of government. No one expected a ruling that would favour the opposition.
It was no wonder that in 2007 Raila Odinga refused to go to court following the disputed election. The then-chairman of the defunct electoral commission admitted on record that even he did not know who had won. The country erupted in violence that saw more than 1,000 lives lost and 600,000 people displaced.
In a way, this Supreme Court is Kenya’s saving grace. It was constituted after thorough Judicial reforms and a new constitution that was passed in a referendum in 2010. There is much more confidence in the Judiciary now.
If the court rules that the election was free and fair, then Uhuru Kenyatta will be sworn in as president within seven days – a major defeat for Raila Odinga and his supporters. Analysts say it is now or never for Odinga, who has been prime minister.
If the judges nullify the results a fresh election shall be held within 60 days.
Both Odinga and Uhuru Kenyatta have said that they will respect the decision of the court. They have no choice. The verdict is final and cannot be contested because the Supreme Court is the highest court in the land and the only one that can hear a presidential petition.
Unlike in past presidential cases where Kenyans knew the verdict before it came out, it is very hard to guess how the court will rule. Bob Mkangi, a lawyer who was key in drafting the current constitution, says that is the point – a court’s decision should not be predictable.
He told me that beyond the apprehension and tension in the country, whichever way the ruling goes, the bigger impact is that the country now has a solid way of resolving issues as grave as a contested presidential election – without necessarily having to take to the streets.