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Anxiety ahead of Supreme Court judgment in Kenya

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TOM ODULA | March 29, 2013 02:36 PM EST | AP

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NAIROBI, Kenya — Kenya is on edge awaiting the Supreme Court decision Saturday on whether it will uphold or invalidate the election of Uhuru Kenyatta as president, a potential flashpoint for unrest.

Kenyatta won by a hair in the March 4 election, with 50.07 percent of the vote, breaking the 50 percent mark by about 8,000 votes out of 12.3 million cast. His top rival, Prime Minister Raila Odinga, said Kenyatta won fraudulently and filed a petition with the court two weeks ago.

Chief Justice Willy Mutunga said that the six justices, including him, have a daunting task in making the decision.

Closing arguments presented Friday focused on a report released by the court that found discrepancies in partial recounts from five of 22 polling stations. The report said discrepancies for the presidential elections were also found in 75 other stations.

Lawyer George Oraro, representing Odinga, urged the court to cancel results from those areas that showed problems.

Kethi D. Kilonzo, representing the civil society group Africa Center for Open Governance, said the audit proved their petition against Kenyatta's election.

The electoral commission's lawyer, Nani Mungai, said there was no mischief behind what he called "clerical errors." And Fred Ngatia, who is representing Kenyatta, said the vote tallying was carried out with a tremendous amount of accuracy.

Disputes over a flawed 2007 election sparked months of ethnic violence that killed more than 1,000 people in Kenya.

Despite vicious online fights between supporters of Kenyatta and Odinga on Facebook and Twitter, the East African country has, for the most part, remained at peace during this latest election period.

However, the Supreme Court decision may change that, depending largely on whether Odinga accepts the court's decision, if it rules against him.

"People are eagerly awaiting the decision in their own calmness," said Bob Mkangi, a legal consultant. "There are people who are talking about it wherever you go in the bar in the streets in the supermarkets. Everyone in the country is captivated by this moment. It is a historic moment for Kenya. It is the first petition initiated under the new constitution."

Kenya adopted a new constitution in 2010 as part of reforms to prevent a recurrence of the postelection violence in 2007. The constitution formed the Supreme Court and scheduled reforms for the rest of the judiciary which was seen as corrupt and lacking independence.

In 2007, Odinga refused to go to the courts for arbitration and took his protests to the streets over the flawed election in which President Mwai Kibaki was declared winner. The street protests degenerated into tribe on tribe violence, where communities settled old scores over land and resources.

The Supreme Court's formation and the newfound trust Kenyans have in the judiciary is frequently cited as one of the reasons Kenya's contentious election this year has not yet sparked any violence.

Millions turned out for election day on March 4, forming long winding lines that took hours to move.

Many had expected a low registration of voters because of apathy following the 2007-08 violence, but hyped up campaigns by Kenyatta, Odinga and other presidential candidates led to the highest registration in the country ever. Kenya's electoral commission registered 14.3 million people.

Election day, though, did not go as planned. An electronic voter ID system intended to prevent fraud failed for reasons yet to be explained by the electoral commission. Vote officials instead used manual voter rolls.

After the polls closed, results were to be sent electronically to Nairobi, where officials would quickly tabulate a preliminary vote count in order to maximize transparency after rigging accusations following the 2007 vote. But that system failed, too. Election officials have indicated that computer servers overloaded but have yet to fully explain the problem.

As the early count system was still being used, election results showed more than 330,000 rejected ballots, an unusually high number. But after the count resumed with the arrival in Nairobi of manual tallies, the number of rejected ballots was greatly reduced, and the election commission said the computer was mistakenly multiplying the number of rejected ballots by a factor of eight.

Odinga's lawyers told the Supreme Court this week that the switch from electronic voter identification to manual voter roll was stage managed to allow inflation of Kenyatta's votes to take him past the 50 percent threshold. That accusation has been vehemently denied by the electoral commission and Kenyatta's legal team.

If the court upholds Kenyatta's win, he will become the second sitting president in Africa to face charges at the International Criminal Court. He and Deputy President-elect William Ruto both face charges related to having helped orchestrate the 2007-08 postelection violence. Both deny the charges. Ruto's trial begins in late May; Kenyatta's begins in July. Kenyatta has promised to report to The Hague.

Because of a vacancy, Kenya's Supreme Court currently has six justices on it, which leaves open the possibility of a split decision

In the case where there is a tie then the declaration by Independent Electoral and Boundaries Commission that Kenyatta won will stand, legal consultant Mkangi said. The next stage will be planning for the swearing in ceremony.

"Save for any outright violation of the constitution and the law we are obligated to accept the decision that it (Supreme Court) makes," he said. "Never will we have decisions that please everyone. We might not necessarily agree with the decision but must accept the decision."