Kenyan Election in the Hands of the Supreme Court

More than a week after elections under Kenya’s new constitution, the prospects for peace and security remain challenging.

The country appears calm in the aftermath of the election commission’s announcement that Uhuru Kenyatta won a razor-thin victory over Raila Odinga. Kenyatta has avoided a runoff with 50.07 percent of the votes.

The question now is whether it will stay that way. In 2007 the bloodletting started several days after the election results were announced. News reports indicate that tension is high in Nariobi’s slums. Nairobi is not representative of Kenya as a whole, but the situation in the capital merits close watching.

Odinga is urging his supporters to remain calm. He is asking the Supreme Court to throw out the elections. The Supreme Court has been reformed since the aftermath of the 2007 bloodletting. The prestige of the chief justice is high; less so some of the other justices. Yet it remains unclear how the court will rule. It could uphold the election results, annul them, or fail to reach a decision. The justices may well split. Whatever the outcome, Odinga has pledged to respect the court.

Perhaps the worst outcome would be if the court fails to reach a decision or is closely divided. Then, Kenyatta presumably will assume the presidency, but without the legitimacy that a court decision in his favor would confer.

Should the Supreme Court find for Odinga, that would mean new elections and new ethnic alliances; ethnic horsetrading and tensions would increase.

If Kenyatta’s victory is upheld–the more likely outcome–he will have to balance governing Kenya with defending himself against charges of crimes against humanity before the International Criminal Court at The Hague (ICC). And so too will his vice president, William Ruto. The prospect of governing Kenya part-time will be a challenge.

While Kenyatta has said he will cooperate with the ICC, there remains the possibility that he will utilize his new position of power to find some way of avoiding the ICC prosecution. That would complicate Kenya’s relations with donors such as the UK and the United States.

The U.S. congratulatory statement over the weekend focused on the Kenyan people exercising their fundamental right to vote. It did not mention Kenyatta by name. It thereby acknowledges that the electoral process is not complete until the Supreme Court has ruled.

It would be hard for the Obama administration to simply walk away from Kenyatta, despite the ICC indictment. Kenya plays a crucial role in the Horn of Africa region, where the war on terror and the search for a solution to the crisis in Somalia are integral to U.S. foreign policy. Kenya, for example, allows limited U.S. military use of its facilities, it is a major U.S. government regional hub, and, of the U.S. embassies in sub-Saharan Africa, Nairobi’s is usually the largest.

So, these are tense times for Kenya. The next few weeks will show whether Kenya’s governance institutions, created under the new constitution, are strong enough to weather a major political crisis; and whether democracy is strong enough to trump political and ethnic rivalries.