Uhuru Kenyatta was declared the winner a week ago after reaching the threshold needed to avert a run-off by a 0.07 per cent margin – 8,418 votes out of 12.4m cast, according to official results.
But some observers questioned the integrity of the vote after electronic safeguards designed to prevent fraud failed. Mr Odinga said “rampant illegalities” made the outcome unclear.
“The prime minister wants a whole new election,” lawyer William Burck, who was deputy counsel for President Bush, told the Financial Times the day before the 20-strong legal team was due to hand in its petition.
“It’s a bigger ask than a run-off but I think [a rerun] is what’s required – an inevitable result of a catastrophic failure of the election system,” said Mr Burck. “We think . . . that this thing was never meant to succeed.”
A biometric identification system to eliminate multiple voting largely failed and an electronic transmission system, to provide a speedy reference to cross-check paper results, broke down during the vote tally. The safeguards had been intended to prevent a repeat of 2007 elections, when allegations of massive fraud triggered violence that brought the country to the edge of civil war.
Mediators negotiated a coalition government to end ethnic attacks and an independent inquiry subsequently ruled that malpractices were so widespread it was impossible to tell who won.
Mr Burck, who worked closely with the team that handled the “hanging chad” controversy, a reference to indecipherable voting intentions, that determined the outcome of the 2000 US election, said evidence of new problems was being unearthed every day despite “obstruction” from Kenya’s independent election body, the IEBC.
“We’re focused on the things we can prove dictated by the lack of time,” he said. “In the US, if you had such a fundamental breakdown . . . a US court would say this is not a reliable vote.”
The IEBC said they could not hand over the results within the stipulated time. Mr Odinga’s representatives instead had to install their own photocopiers at the national tallying centre as they raced to hand in their submission.
The team will file their petition to meet a Saturday deadline to contest the results. The Supreme Court has 14 days to rule. Should it determine in Mr Odinga’s favour, the country would have 60 days to hold a fresh election.
Lawyers in the team point to “dozens” of cases where turnout exceeded 100 per cent, numbers on results forms that have been visibly altered by pen or with Tipp-Ex and say there were three different voter registers, in which the numberultimately grew despite claims new versions were issued to eradicate duplicate entries. Party agents were also ejected from a room where they were meant to verify results forms.
Some observers have said Mr Odinga’s chances of winning any fresh election would be even smaller than in the first vote given a new incumbent is declared. But Mr Odinga insists there is a larger point at stake.
“If this is allowed to stand, there will be no point in having elections in the future,” Mr Odinga told the FT in an interview this week. “I’m in this for a cause – to democratise this country.”
- Financial Times
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