Why Supreme Court of Kenya dismissed Raila Odinga’s election petition

It’s two months after the March 4 2013 elections in Kenya. It’s about 69 days since the Independent Electoral and Boundaries Commission (the IEBC) declared Uhuru Kenyatta and William Ruto duly elected president and deputy president respectively. Fourteen days after that, the Supreme Court of Kenya confirmed the IEBC’s declaration in a unanimous verdict that sent the principal petitioner and Uhuru’s main challenger in the presidential election, Raila Odinga, into a psychological spin with reverberations that are still being felt to this day. Will Odinga finally accept the democratic will of the Kenyan people?

Apparently not. In numerous incoherent, inconsistent and contradictory utterances since the Supreme Court's decision, Mr. Odinga has blown hot and cold. Prior to the elections, Odinga and other presidential contenders displayed unprecedented unity, patriotism, humility and statesmanship by publicly stating that they would accept the results of the elections no matter how it turned out. They undertook, together, on live TV broadcasts, to be peaceful and to seek any redress in court should they lose. They promised, fervently, to respect the Supreme Court’s decision in any subsequent petition(s). 'There will be no mass action,' they solemnly swore before Rev. David Owuor, as millions of Kenyans watched.

However, on March 9, barely fifteen minutes after the IEBC declared Uhuru duly elected, Odinga swiftly held a press conference to denounce the results. There were no statesman-like congratulatory telephone calls from Odinga to the president-elect. This is what happens in mature democracies like the US even when one isn’t happy with the results. It doesn’t and wouldn’t have prevented Odinga from disputing the results in Court.

But Odinga not only rejected the results announced by the IEBC, he also threatened a legal tsunami. He listed, publicly, before filing his petition, a litany of accusations against the IEBC, Uhuru’s Jubilee Alliance, the National Security Intelligence, and un-named 'dark forces and bureaucrats' who had allegedly 'stolen' his victory 'one more time'. He claimed that the IEBC had taken 1.8 million votes from him and given them to Uhuru. He termed it daylight electoral robbery. He threatened unspecified 'consequences' to the 'electoral thieves'. He paraded more than a dozen lawyers, including sitting members of parliament, and confidently stated that he would prevail at the Supreme Court. He promised his supporters swift and an unequivocal 'justice from the Supreme Court'.

All reasonable people expected that Odinga would present unimpeachable evidence before the Court and prove each and every allegation made; that he would expose the concluded elections and the IEBC as frauds; and that ultimately, the Court would vindicate his allegations.

Odinga’s supporters subsequently inundated the airwaves, suffocated the print and electronic media and saturated the social media with salacious stories of stuffed ballot boxes, fake voters’ registers, dead voters and remote hacking of the IEBC computer systems that 'had transferred millions of votes belonging to Raila, which had then been fraudulently tallied and declared in favour of Uhuru'. Unauthenticated video clips showing unidentified people making contradictory announcements of 'results' mysteriously emerged and started circulating in the Internet. These were accompanied by a crescendo of ethnic jingoism and hate-filled propaganda. Viewers were later entertained to their dramatic presentation in Court by AfriCogs lawyer, Kethi Kilonzo.

'Be patient and wait for the Supreme Court’s verdict,' Odinga kept exhorting the country. It looked like it was only a matter of hours before the Court 'returned Raila’s stolen victory'.

Yet after the Supreme Court tossed out his petition on April 9, 2013, Odinga not only rejected that decision, he went ahead and implied that the Court had been ‘compromised.’ He didn’t specify how this had happened. However, it didn’t take long before Odinga’s supporters started spreading unsubstantiated propaganda that the Supreme Court justices had been paid Ksh300 million (approximately USD$3.6 billion) for each Supreme Court justice by the Jubilee team. A few dozen Odinga supporters demonstrated in Nairobi and Kisumu with two even committing suicide in Migori town and the Kibera slums in Nairobi. Most Odinga supporters, particularly from his Luo ethnic group, were in deep mourning. They refused to believe that their man had lost fairly to Uhuru Kenyatta. To Odinga and his supporters, the results had been cooked by the Kikuyu elites, working in cahoots with the IEBC. There wasn’t any need for proof.

Addressing his supporters in Mombasa and Kisumu a few days after the court’s verdict, Odinga stirred fresh embers and rekindled the memories of the 2007 post-election conflict by charging the IEBC of planned, orchestrated, massive rigging. With a black Bible held in his right hand, he rounded it off by comparing his circumstances to the crucifixion of Jesus Christ. 'Unlike Jesus, I’ve resurrected without being buried…' Odinga thundered. He subsequently took off to a South African zoo with his running mate Kalonzo Musyoka and a recently acquired sidekick, Moses Wetangula, effectively boycotting the inauguration of Uhuru and Ruto, which occurred on April 12th. Odinga also urged elected members of his CORD alliance to boycott the event as well—and many complied.

Since then, Odinga has continued to publicly condemn the IEBC, the Supreme Court, and an assortment of high-ranking public figures and institutions, accusing them of conspiracy to deny him the country’s leadership. He has recently agitated for a constitutional amendment so that the country can become a parliamentary system. As well, he continues to call for the disbandment of the IEBC, claiming that in its present form, it cannot preside over fair and democratic elections.

Unfortunately, these are arguments that Odinga should have made more than three years ago. During the constitutional review process—and as I narrate at pages 370-80 of my memoirs, Peeling Back the Mask—Odinga is the one who proposed the current pure presidential system. Odinga shouted at me (I was then his senior policy adviser and chief strategist) when I reminded him that a parliamentary system is best suited for a multi-ethnic society with demographic, power and economic imbalances. At the time, he rudely told me that I didn’t appreciate 'the benefits of a presidential system' and, referring to a classic parliamentary system I had drafted for consideration, that I couldn’t take all power from 'an elected president and give it to an un-elected prime minister'. Then, Odinga’s main focus was the acquisition of undiluted power so that he could use it to make more money and pamper his family, relatives and acolytes.

Not surprisingly, Odinga has suddenly realized that a parliamentary system is best suited for multicultural societies. It enhances cohesion by decentralizing and decongesting power. The question, however, is why Odinga is behaving as if he has just discovered these redeeming qualities in a parliamentary system. Isn’t he the same man who recently traversed the country claiming to be the best person whom Kenyans could trust with the implementation of the Constitution of Kenya 2010? Has he had a change of heart about the constitution he deemed 'the best in Africa' just two months ago? Why was he happy with a system he claimed to perpetuate 'the big man syndrome' only a few weeks ago?

For those who know Odinga very well like I do, it’s obvious that his current campaign is motivated by one thing only: his greed and blinding drive for power. He is clever enough to know that most Kenyans actually prefer a parliamentary system of government. It’s the only means the majority of Kenyan ethnic communities can hope to share power and resources with their bigger kinsmen like the Gikuyu, Kalenjin, Luhya, Luo and Kamba. On his part, Odinga wants to ride on these people’s backs—become their champion—all the way to victory in 2017. To do that, he needs a uniting message—a clarion call. But more immediately, he is seeking a REASON to return to parliament. Otherwise, the insurrection Odinga is busy fermenting over the system of government and the just-concluded elections are ruses for his “Change the Constitution Movement.” Whatever group he constructs—and he will come up with one—will be his vehicle for power in 2017. Forget about the stillborn CORD!

In July 2011, Odinga suspended me through the media for daring to publish a column in The Star newspaper in which I criticized the management and alleged corruption and nepotistic practices of one Issack Hassan and the precursor to the IEBC—the Interim Independent Electoral Commission. Odinga, James Orengo, Peter Anyang’ Nyong’o, Gerald Otieno Kajwang’, Jakoyo Midiwo and Oburu Odinga told anyone who wanted to hear that Mr Issack Hassan was the best electoral manager in Kenya. Odinga and his cohorts accused me of 'attempting to interfere with the running of the electoral commission'. Yet less than three years later, these hypocrites are now making the same arguments I made in 2011!

Whereas we can let Odinga mourn and live in denial unmolested over his 'stolen victory', it’s imperative that we remind him of some of the most blatant falsehoods he is trying to propagate.

Before the Supreme Court rendered its decision, virtually all the mourners were 'convinced' that the Court would grant Odinga's petition and overturn Uhuru's victory. They yelled and shouted for people to wait for the SC's decision. Some of us obliged them—patiently. Yet no sooner had the SC rendered its decision did the same people start shouting again, this time condemning the Court. This means they couldn’t accept any other decision but an Odinga win. That's not reasonable. It’s also disrespectful of democratic principles, the rule of law and our institutions. Democracy cannot grow and thrive unless we show reasonable deference to our institutions of governance.

Before the March 4 elections, the media and most opinion poll firms considered Odinga to be ‘the leading presidential candidate.’ Members of CORD [coalition for reforms and democracy], many of them dyed-in-the-wool Kanu Orphans like Kalonzo Musyoka, Henry Kosgey, Dalmas Otieno, William Ole Ntimama, Franklin Bett, Cyrus Jirongo, Moses Wetangula, Amos Wako and Fred Gumo, were suddenly portrayed as 'reformers' and 'agents of change'. It seemed like supporting Odinga was all one required to become a reformer.

As we went to the polls, Odinga had been prime minister of Kenya for 5 long years. His running-mate, Kalonzo Musyoka, had been Vice-President for 5 years as well. Wako had been the longest serving Attorney General in the Commonwealth, having served a total of 21 years in Daniel arap Moi’s tyrannical regime and Mwai Kibaki’s lackluster administration. In other words, going into the March 4 elections, CORD was the establishment group in name and substance.

They had (or ought to have had) both party and presidential agents in all polling, constituency, county and national tallying centre(s).

The IEBC gave these agents forms 34, 35 and 36 on which the county, constituency and presidential results were announced. They signed the forms 34 and 35 at the constituency tallying centres, and form 36 at the national tallying centre in Nairobi. They presumably relayed these results to their party headquarters and leaders long before the same results reached the national tallying centre in Nairobi, and very long before they were added up and final results were declared by the Chairman of the IEBC. These are the forms Odinga should have used as evidence in his Petition before the Supreme Court. He should have had them on March 9th when Uhuru was declared winner. Information on these forms—plus observations by his presidential agents – is what Odinga needed to use in challenging the IEBC results. If there had been serious electoral malpractices, the onus was on Odinga to present credible evidence in Court. He needed to demonstrate that had these violations not occurred, Uhuru wouldn’t have won, or at least not achieved 50 percent of all valid cast plus one vote. So, why didn’t he?

One plausible reason is that Odinga knew that he couldn’t sustain his objection to the declared results. In other words, Odinga’s bluster was nothing but theatre. He knew that he couldn’t prove any of his allegations through credible evidence. The Court to him was just another instrument for manipulation in his quest for power. More significantly, the results had not been challenged by Odinga and his cohorts (at the constituency and county tallying halls) until the final tallies at the national tallying centre showed that Uhuru had won. In addition, the same tallies had been used to declare MPs, Governors, Senators, Women Representatives, etc—results that Odinga and CORD did not seem to challenge at the Supreme Court.

In all these other results, the Jubilee Team has more members (MPs, Senators and Women Representatives) than CORD. Essentially, Odinga knew Uhuru had won.

In 2007, ODM had argued, legitimately, that one of the clearest indicators that Odinga had won the 2007 presidential election was the fact that the party on which he contested the Presidency, ODM, had more MPs than Kibaki's PNU. However, in 2013, Uhuru's Jubilee had more MPs, Senators and women representatives than CORD. On what basis, therefore, would Odinga and his cohorts, be arguing that he won the popular vote when clearly he has less representatives than his main opponent?

Finally, Odinga's figures simply didn’t add up. Uhuru beat him with more than 800,000! That's huge by any standards. Uhuru got 50.07 percent of the total votes cast (it should have been 53% of the valid votes) while Odinga only got 43 percent. Although he alleged that the IEBC robbed him of 1.8 million votes, he couldn’t prove any rigging before the Supreme Court—not one rigged vote! These are undeniable facts.

In my opinion, the reason why Odinga went to Court wasn't because he believed he had sufficient evidence upon which Uhuru's victory could be overturned. He wanted the Court to help him perpetrate a coup either by ruling in his favour despite the evidence or to create an environment in which he could perpetrate an insurrection like the ones that happened in Cote d'Ivoire, Tunisia and Egypt. He had hoped that the West would help him get power. His other wish was that he could make Kenya ungovernable so as to create the need for another grand coalition arrangement with Uhuru. He had hoped that such an arrangement would ultimately result in him taking the absolute power—after the ICC trials is May and July 2013.

But Odinga conveniently forgot that he had alienated most of his strongest strategists, tacticians and mobilisers going into the March 4 elections. He had betrayed everyone except his relatives and sycophants. These wounded former allies used their talents, energies and contacts to deliver a convincing defeat to Odinga. In 2007, it was William Ruto, Moses Mudavadi, Charity Ngilu, Najib Balala and many others who generated much needed energy that helped mobilize Odinga’s support in the Rift Valley, Western, Nairobi and Coast. By 2012, those areas had moved to Uhuru’s side. On March 4, Odinga was basically left with Luos, Kisiis, Luhyas and the Coast. He knew that there was no way he could have won a fair and democratic contest against Uhuru Kenyatta and William Ruto.

Moreover, Odinga’s tenure as prime minister of Kenya had been more than disappointing. The five years he presided over a moribund office where deception, lethargy, disorganization, corruption and nepotism were the greatest achievements of his office, exposed his hitherto concealed under belly. As Kenyans went to elections on March 4, Odinga’s strongholds in Nyanza and Nairobi areas lived in pathetic conditions. Sugar cane, cotton, rice and fishing industries, which provided his core supporters with a livelihood, had long ceased being viable economic activities. The floods were still ravaging Kano plains and others areas in Nyanza. Schools and health centres were dilapidated. Land remained un-demarcated. Most young adults aged between eighteen and twenty-five years were not registered as voters because they had not been issued with national identity cards. These happened despite the fact that the ministers for registration of persons, lands and health services were Odinga’s cabinet appointees and known sycophants.

Even more intriguing was the sudden and massive technology failure during the elections that is said to be directly traceable to Odinga and corrupt mandarins in his former office who, credible sources claim, ripped off the national treasury to the tune of Sh2 billion during the BVR procurement. With forensic and criminal investigations having been ordered on the technological failure, many observers are keenly waiting to see how Odinga’s office might be implicated and what he might say after the results of the investigations are made public. It’s possible that the biggest culprits during the 2013 elections will be the twin national ailments of greed and deception.

Clearly, Odinga had miscalculated. His strategies and tactics weren't well thought-out. The execution of his inept strategies and tactics was also rusty. But somehow, he and his sycophants believed that God had anointed him to reign. He would automatically become president, they yelled. 'Even goats and chicken in villages know that Raila will be Kenya’s fourth president,' we were reminded again and again. Fortunately, Kenya and the world had moved on...Had Odinga listened to me in 2009, he could probably be something right now under a parliamentary system. He wouldn’t be dangling in the air, unable to decide whether to retire or to force himself back to parliament so that he can remain politically relevant. However, with three successive loses under his belt, Odinga has to retire honourably or we will retire him.

* Miguna Miguna is a former senior policy adviser to Raila Odinga when the latter was prime minister of Kenya. His memoirs, Peeling Back the Mask and the sequel Kidneys for the King, exposed corruption in Mr. Odinga’s office. Mr Miguna is also a member of the Ontario and Kenyan Bars.