Six Supreme Court judges, led by Chief Justice Willy Mutunga, third left, arrive at court to hear the petition by Kenya's Prime Minister Raila Odinga filed against president-elect Uhuru Kenyatta at the Supreme Courts in Nairobi, Kenya, Monday, March 25, 2013. The court ordered the election commission to recount votes in 22 of the country's 291 constituencies to see if any of the tallies exceed the number of registered voters, after Uhuru Kenyatta was named the winner of the March 4 Presidential election with 50.07 per cent of the vote.(AP Photo/Sayyid Azim)
Wednesday, March 27, 2013 1:03 pm
Vote numbers were changed, Kenyan court told
By JASON STRAZIUSOAssociated Press
Kenya's six-justice Supreme Court heard arguments from a civil society group and from the legal team of Prime Minister Raila Odinga asserting that the court should invalidate the election commission's declaration that Uhuru Kenyatta won the country's March 4 presidential election with 50.07 percent of the vote.
Kethi D. Kilonzo, an attorney for the African Center For Governance, played a video for the Supreme Court that she said showed Kenyatta's vote totals increased between when some local polling stations publicly announced their counts and when those numbers reached the national tallying center.
One center, in Nyeri Country, said publicly that Kenyatta had won 53,252 votes, Kilonzo said. By the time the national election commission read the result, Kenyatta's total had increased to 55,726, she said. In addition to Kenyatta gaining votes, other candidates, including Odinga, lost votes, she said.
"This is an election offense, altering the result of an election," she said.
Kenyatta cleared the crucial 50 percent mark by only 8,400 votes out of more than 12 million ballots cast, making each vote of his highly valuable. Had he gotten below the 50 percent threshold, Kenyatta and Odinga would have faced one another in a run-off.
Kilonzo told the court it should invalidate all returns from Nyeri, an action that would drop Kenyatta below the 50 percent mark.
Kenya's March 4 election was marred by myriad technical failures, including the failure of an early returns system. Kilonzo said that if the early returns system had worked properly, there would have been no way for someone to alter the ballot returns without it being noticed.
"The electronic transmission of results was not for the benefit of the (election commission), it was for the benefit of the Kenyan people," said Kilonzo, who said the commission seemed to shrug off the failure of the system as a minor technical glitch.
Kenyans across the country have been glued to TV sets this week as broadcasting networks carried the Supreme Court case.
The last time Kenyans voted for president, in late 2007, allegations of rigging to benefit President Mwai Kibaki sent thousands of Odinga supporters into the streets. Violent ethnic clashes lasting two months killed more than 1,000 people. Odinga was eventually named prime minister in a coalition government.
Since then, Kenya has passed a new constitution and upgraded its judicial system, winning praise from international partners and much of the Kenyan public.
The Supreme Court is to decide by Saturday on the petitions by civil society groups and Odinga's legal team. No major violence has been reported surrounding this year's election, but the Supreme Court decision is another potential flashpoint that could spark violence, depending largely on whether Odinga accepts the court's decision, if it rules against him.
The court on Tuesday refused to accept an 800-page affidavit submitted by Odinga's lawyers and denied Odinga access to computer logs of the election commission. Similarly, Kilonzo's side has been denied access to the election commission's voter registrar.
Mugambi Kiai, a Harvard-educated lawyer who runs Kenya's Open Society Initiative, said he thinks the Supreme Court is displaying a mindset of an "old constitutional order" that may base a decision on procedure instead of evidence. He suspects its decisions will keep Kenyatta as president.
"If by their ruling they're seen or perceived to be siding with one party or seen to be favoring one side of the argument, the next `loser' will not go to the Supreme Court," Kiai said. "This Supreme Court has to be very, very careful. This case, it's not about Railda Odinga and Uhuru Kenyatta. It's not. It's about whether in this kind of dispute the next time the `losing party' will have faith and trust in the Supreme Court."
Kilonzo's group is trying to demonstrate not that Kenyatta didn't win but that constitutional and legal safeguards were so breached that the legitimacy of the election outcome is open to question.
George Oraro, Odinga's lawyer, told the court that variances in the number of registered voters by the electoral commission made it almost impossible to determine how many people voted.
Oraro said the Independent Electoral and Boundaries Commission announced that it had completed a list of persons registered to vote on February 18 as required by the law. However, the electoral commission continued to change the number of registered voters illegally after the deadline, he said.
Oraro said that the changes in the voter registrar could have affected the outcome of the elections taking into consideration Kenyatta surpassed 50 percent by only 8,400 votes.
Associated Press reporter Tom Odula contributed to this report.