Thanks in large part to the support of human rights groups and the attendant international scrutiny, Prime Minister Raila Odinga, who had seemed to lose in a squeaker to Uhuru Kenyatta in Kenya’s March 4 presidential election, can delay the inevitable at least a little bit longer.
But in a country where ethnic politics still rules and the high court has never served as arbiter for a disputed contest of this significance, a path to victory for Odinga — whose electoral coalition is simply outweighed by the more clever hodge-podge assembled by his rival — remains essentially nonexistent. Even if Kenyatta just barely cracked the 50 percent threshold necessary to avoid a runoff contest the first go around, and even if human rights groups have video evidence suggesting vote totals bizarrely shifted between local precincts and the national tallying center (in favor of the eventual victor), the ICC-indictee Kenyatta knows how to play — and win — in the rough-and-tumble (and sometimes just plain brutal) world of local politics.
Of course, that hundreds were killed after the disputed 2007 vote (many allegedly by death squads Kenyatta used his family fortune to prop up) means his day of reckoning on the global stage, perhaps when he faces trial at The Hague, is still to come. But in the meantime, having not only avoided suffering politically for the human rights case but actually turned it to his advantage by ripping meddlesome Western elites in a country where multinational institutions have a legacy of failure, Kenyatta can look ahead to a win-win scenario. Either the Court validates his victory and he takes power (which he has already begun to prepare for with high-level national security briefings), or a recount necessitates a run-off or even a repeat of the initial contest — in which case the heir to political royalty (his father was the nation’s first president) still has all the odds on his side. There simply hasn’t been any shift in the domestic political landscape to suggest otherwise.
The real question, then, is not whether the Kenyan Supreme Court might re-jigger the state of play in national electoral politics — it cannot — but whether its rulings will be respected by all political actors. And perhaps more importantly, whether some kind of precedent for the peaceful resolution of disputed elections might be set (Thursday’s invocation by an election commission lawyer of the still somewhat controversial U.S. Supreme Court decision in Bush v. Gore notwithstanding). Something of a moral victory has been won already in that political forces across the ideological spectrum appear to be exercising patience as the Court deliberates. On the other hand, Kenyatta seemed to dismiss the Court’s role with flippant comments that went viral on social media about “some six people” who will “decide something or other.” But if the Court’s legitimacy is to be established, then when a decision comes down (one is expected by Saturday), it is the losers — and Odinga first among them — who will have to play along.