A dejected Raila Odinga Tuesday stopped short of divulging his next course of action after rejecting the presidential election results, which gave his rival William Ruto a narrow victory.
But if he will indeed challenge the outcome as he vowed at his first media appearance since the Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebuka declared Dr Ruto president-elect, then Mr Odinga has no option but to file an election petition at the Supreme Court.
That four IEBC commissioners, the majority, disowned the results presented by Mr Chebukati, gives Mr Odinga a powerful rationale for going to the Supreme Court, it will still be a difficult case given the transparent manner in which the count was reported this time.
In 2017, Mr Odinga obtained a historic judgement as the Supreme Court overturned the victory of President Uhuru Kenyatta and ordered a repeat poll. The verdict was clinched not by a vote recount or significant disparity in the tallying, but by the IEBC being unable to account for the numbers it had given throughout the vote counting, tallying and transmission of results.
2017 Supreme Court ruling
IEBC was faulted in the 2017 Supreme Court ruling for failing to “open the servers”, but this time it left the servers open for anyone to access the result forms right from the polling stations. The long-drawn out verification process sat the National Tallying Centre at Bomas of Kenya was attended by agents of all the presidential candidates, and nothing untoward was raised.
The announcement of vote counts at polling stations and at constituency level was witnessed by agents of candidates, who affirmed the results with their signatures, as well as media and observers.
What all this means is that any election petition will be very hard to prove unless it can be demonstrated that the results announced by Mr Chebukati were at variance with what was initially made available at the polling station and tallying centres, which were all in the public domain.
Political issues to consider
Details of the likely suit aside, Mr Odinga also has political issues to consider. Having lost and protested the previous three elections, one which resulted in violence, he may not want to reinforce perceptions, which the Ruto camp is bound to play up, that he is the perennial sore loser stirring up trouble. A probable cause of action might, therefore, be for his allies in politics and civil society to be the ones to go to court.
Not on the table will be any calls for mass protests given the 2007 violence, nor the #Resist campaign after boycotting the 2017 repeat polls.
On the political front, Mr Odinga still has an important platform through the Azimio coalition’s impressive numbers in Parliament.
In the National Assembly, he commands a narrow majority over Dr Ruto’s Kenya Kwanza Alliance, giving him the perfect chance to not only determine the next Speaker, but also the Majority Leader, Majority Whip and leadership of key committees. Mr Odinga has the numbers to check-mate the new President at every turn and even push through the Azimio agenda.
Holding his troops together
But everything depends on Mr Odinga holding his troops together, as no doubt Dr Ruto occupies the bully pulpit, and will like his political mentor, former President Daniel Moi, use every trick to woo those susceptible to blandishments to the government side.
At the age of 77, Mr Odinga was almost certainly on his last presidential campaign and will also need to give serious thought to succession planning. Azimio was designed as a special purpose vehicle for just one election. It does not have a single legislator of its own as all those elected were on their respective party tickets.
This will make it pretty fragile, so there will be need for serious thought on how it can be held together in both the short and long term. Mr Odinga’s running mate Martha Karua came with so much promise on pursuit of the populous Mt Kenya vote and the women’s vote, but failed on both counts. Her Narc Kenya party did not win a single seat.
Outgoing President Kenyatta’s Jubilee Party is the second strongest Azimio party in the National Assembly after ODM, but was decimated by Dr Ruto’s troops in the Mt Kenya region.
Wiper Party leader Kalonzo Musyoka performed admirably in bringing out the vote for Mr Odinga in Lower Eastern and also scooped nearly all parliamentary seats in the region. He had played hardball in his demands for the DP slot, but eventually joined Azimio after making it clear that he will be a presidential candidate in 2027, whatever the outcome.
With Jubilee short of viable leaders and other Azimio parties such as Gideon Moi’s Kanu bringing nothing to the table, Ms Karua and Mr Musyoka are already emerging as Mr Odinga’s co-principals. They will be the ones to drive the coalition forward, but that will depend on them not getting into premature rivalries.
There is also a lot of work to do countering Dr Ruto’s gains in Western and Coast, and an early test will be provided by the delayed governor elections in Kakamega and Mombasa. Those seats should have been Azimio’s for the taking, but the presidential poll results change the game.
Mr Odinga’s ODM is still the dominant party in Azimio, but it lacks leaders capable of filling Mr Odinga’s giant shoes, both at the party level and in Nyanza. These are the issues that, beyond challenging the presidential election outcome, will also demand Mr Odinga’s attention.
