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William Burck said Kenya's election commission, known as the IEBC, failed in its duty to ensure that the March 4 presidential election was fair.
Burck is helping represent Prime Minister Raila Odinga in his petition to Kenya's Supreme Court asking that the results be scrapped and a new election held. Uhuru Kenyatta — the son of Kenya's founding father — was named the winner of the vote with 50.07 percent.
Burck — Bush's deputy counsel from 2005 to 2009 — said in a phone interview from the U.S. late Monday that the "evidence is not great" for the commission's conduct in the election, Kenya's first since a 2007 vote led to weeks of tribal violence that killed more than 1,000 people.
"It does not seem an entity that one would consider to be impartial, given the errors that it allowed to occur," said Burck, a Washington D.C.-based lawyer at the firm Quinn Emanuel, adding later: "Let's just say the jury is out on whether they are impartial."
Asked if he thinks the IEBC favored Kenyatta, he said "favoritism is not the point, competence is." The election commission has said it believes it has done its best "to deliver a free and fair" election.
A spokesman for Kenyatta's campaign did not respond to calls for comment, but at a public event in the coastal city of Mombasa on Tuesday Kenyatta asked the Odinga team not to talk about the election "in a way that might incite Kenyans. "Let us remain calm and wait," the Daily Nation quoted Kenyatta as saying.
Odinga has told supporters in recent days he believes he was robbed of votes and that he was the rightful winner.
The Supreme Court has until a week from Saturday to rule on Odinga's petition. Burck acknowledged that asking the court to nullify the March 4 results "is a significant request," but he said he thinks there is evidence of serious deficiencies across many parts of the vote process. Those, he said, include:
— "Bizarre and inexplicable" discrepancies between the numbers of registered voters and those that voted, often to the benefit of Kenyatta.
— The failure of the electronic count transmission system that was a safeguard against vote count manipulation, a failure Burck said forced officials to revert to a manual tabulation system that didn't have the necessary safeguards.
— A change on the eve of the election in the total number of registered voters, even though the voter rolls had already been finalized.
Because of a vacancy, Kenya's Supreme Court currently has six justices on it, which leaves open the possibility of a split decision. Burck said he thinks the justices will try not to have a split vote that leaves doubts about the legitimacy of the election. But if they do split 3-3, Kenyatta's election win will stand, he said.
Burck said he has worked elsewhere in Africa and found his way onto Odinga's legal team through those contacts. He was in the U.S. government during the 2007 vote so followed this year's vote with interest, he said, and thought the final tally looked unlikely.
"It didn't take a lot of convincing that there was something wrong here," he said.
Odinga has promised to abide by the Supreme Court's decision and has urged calm among his supporters. The election process so far has not been marred by any of the violence that saw Kenya endure two months of tribe-on-tribe attacks in late 2007 and early 2008.
