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Defeated Kenyan candidate challenges results in Supreme Court

Raila Odinga speaks to supporters in Nairobi on Aug. 22 after filing a petition in Kenya's Supreme Court contesting his election loss. (Brian Inganga/AP)

NAIROBI — After a week of refusing to concede defeat, former prime minister Raila Odinga on Monday filed a petition in Kenya’s Supreme Court outlining his case that Deputy President William Ruto’s victory was “illegal, invalid, null and void.”

Odinga’s widely expected court challenge will launch the next phase in the closely contested election, which pitted two of the country’s most established politicians against each other and was marred by division among members of Kenya’s independent electoral commission. Minutes before the electoral commission’s chair, Wafula Chebukati, announced last week that Ruto had won about 50.5 percent of the vote, compared with Odinga’s 48.5 percent, four of seven members declared they could not stand by the results because of the “opaque nature” of the process.

Among the allegations made by Odinga and his running mate, Martha Karua, in their lawsuit is that Chebukati “did in fact fraudulently manipulate and distort the presidential election results” and that Ruto failed to secure the 50-percent-plus-one-vote majority needed to win. In a news conference Monday afternoon, Odinga alleged that the vote tally involved “criminality” and framed his lawsuit as part of a fight for Kenya’s future.

“This is a do-or-die battle for the corruption cartels who have everything to lose to the forces of democracy,” said Odinga, a veteran opposition leader who was on his fifth bid for the presidency. “... For the sake of Kenya’s future, the corruption network must not only be stopped, it must also be crushed.”

Without offering evidence, Odinga also linked his opponents to bribery and killing — a serious allegation given that two election officials have been found dead under mysterious circumstances in Kenya’s two most recent elections. No arrests have been made in either case.

A spokeswoman for Kenya’s Independent Electoral and Boundaries Commission did not reply to requests for comment. Ruto, who has four days to respond in court, had not publicly addressed the lawsuit as of Monday evening. He has previously called the four dissenting commissioners a “side show” but also said that he would respect any legal process.

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Kenya’s constitution requires that the court issue a decision within two weeks. A ruling in Odinga’s favor could lead to the results being nullified and the election rerun, which happened as recently as 2017. In that election, the Supreme Court declared Odinga’s loss to incumbent President Uhuru Kenyatta invalid. Odinga then lost the rerun after telling supporters not to vote, citing his continued distrust in the electoral system.

Macharia Munene, a professor of history and international relations at the United States International University in Nairobi, said Odinga’s decision to take the case to court was unsurprising, given his history and the closeness of the election — with just 233,000 votes separating him from Ruto. And she said he had done the right thing by filing a legal challenge rather than calling his supporters to the streets, which has helped “in terms of cooling the temperatures.”

Despite a tense week of waiting for results, Kenya has avoided the deadly violence that followed the 2007 election and the widespread protests and human rights violations after the 2017 election.

In Mathare, one of Nairobi’s largest slums and a site of vicious street fighting in 2007, Monday felt like a mostly normal day, according to Lazaro Ojango Omwa, a shop owner. He said children were playing and people were going about their business as usual. The only difference was that many were glued to the news.

“People are calm because they do not want to go through election violence,” said Omwa, 48. “We cannot start destroying things because it is our things we will be destroying.”

Omwa, a village elder who supports Odinga, said he and others are waiting for a ruling and have confidence that the court will deliver justice.

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Odinga’s team alleges that the election commission did not tally or verify ballots from 27 constituencies. The petition also claims a lack of transparency and accountability at the tallying center, citing the pause of publicly displayed election results and conflicting statements from Chebukati about voter turnout.

This time around, Odinga will have to meet a higher bar to prove the election results invalid, Munene said, especially given that the race was among the most transparent in Kenya’s history, with results from polling stations uploaded to an online portal. Kenya’s Election Observation Group, which includes civil society and faith-based groups and deployed observers across the country, also said that the official projections are in line with its own.

For Odinga’s case to be successful, he must show that there was either “substantial noncompliance with the constitution or electoral law or that there were significant illegalities and irregularities that affected the results,” constitutional lawyer Waikwa Wanyoike said.

“Presidential petitions are always very, very dicey for the court,” Wanyoike said. “There is no position the court can come up with and you say it is an outright win for the court. … Having said that, I think it is always an opportunity to strengthen the institution.”