The six Supreme Court judges, led by Chief Justice Willy Mutunga, seated third left, listen to the petition that Kenya's Prime Minister Raila Odinga has filed against president-elect Uhuru Kenyatta at the Supreme Courts in Nairobi, Kenya, Monday, March 25, 2013. The court ordered the election commission to recount votes in 22 of the country's 291 constituencies to see if any of the tallies exceed the number of registered voters, after Uhuru Kenyatta was named the winner of the March 4 Presidential election with 50.07 per cent of the vote.(AP Photo/Sayyid Azim)
NAIROBI, Kenya (AP) — A lawyer for Kenya's election commission cited the U.S. Supreme Court case Bush vs. Gore on Thursday during arguments before a Kenya Supreme Court that must now rule on the outcome of this East African country's presidential election.
Ahmednasir Abdullahi told Kenya's highest court Thursday it should adhere to judicial restraint and uphold the March 4 result from Kenya's election commission showing that Uhuru Kenyatta won with 50.07 percent of the March 4 vote.
Prime Minister Raila Odinga, the runner-up with 43 percent, and civil society groups are asking the court to order a new election because it wasn't free and fair. The court is expected to rule by Saturday.
Abdullahi quoted U.S. Supreme Court justice Stephen Breyer, who wrote after hearing the 2000 case that decided that U.S. presidential election, that the appearance of a split court on a highly politicized case risks undermining public confidence in the court.
Kenya's current Supreme Court was reformed after a disastrous 2007 presidential election that sparked weeks of tribal violence that killed more than 1,000 people. The court's formation and the newfound trust Kenyans have in it is frequently cited as one of the reasons Kenya's contentious election this year has not yet sparked any violence.
Abdullahi reminded the court that it is only two years old, and he told them: "You must show restraint."
But Justice Smokin Wanjala did not appear to appreciate Abdullahi's advice.
"It is not this court on trial," Wanjala told Abdullahi. "Argue your client's case."
The legal team for Odinga on Thursday argued that Kenyatta's election win should be invalidated because of anomalies in the registration of voters, in the transmission of vote totals and manipulations in the tallying of votes. Lead counsel George Oraro said the elections were not carried out under the rules and regulations prescribed by the law.
Oraro said the election commission increased Kenyatta's vote tally by as many as 11,000 votes in his strongholds and reduced Odinga's by more than 7,000, he said. Oraro also said more than 36,000 people were registered after the registration process was closed.
Kenyatta crossed the 50 percent barrier by only 8,400 votes out of more than 12 million cast. Had he not crossed the 50 percent mark he and Odinga would have faced one another in a runoff.
Lawyers representing the Independent Electoral and Boundaries Commission defended the institution against accusations that it failed to carry out a free and fair election and suggestions that it conspired to give Kenyatta the victory.
IEBC lawyer Paul Nyamodi said the number of registered voters changed because of audits of the registrar. He said the electoral commission took it upon itself to register more than 36,000 people whose fingers prints could not be recorded by the earlier Biometric Voter Registration system.
"This was not a process conceived to skew the election in anyone's favor. It was a process conceived not to disenfranchise Kenyans who came out to register for the elections," he said.
Lawyer Nani Mungai said Odinga's petition was trying to "claw back" from Kenyatta 8,400 votes to force a re-run of the vote.
"There were challenges in technology and we accept them ... but does the fact that we were ambitious enough to try and use technology mean that we should be vilified?" he asked the court.
Fred Ngatia, Kenyatta's lawyer, dismissed Odinga's claims that people were illegally registered after the deadline saying the law requires that the registration of voters be continuous.
"There is nothing that can be said to be a legitimate complaint from a candidate who took part in the process," Ngatia said.
If the court upholds Kenyatta's victory, his next court case will be at The Hague, where he faces charges at the International Criminal Court for helping orchestrate the 2007-08 postelection violence. Kenyatta's deputy president, William Ruto, faces similar charges at the court.
On Wednesday an attorney for the African Center For Governance played a video for the Supreme Court that she said showed Kenyatta's vote totals increased between when some local polling stations publicly announced their counts and when those numbers reached the national tallying center. That group is trying to demonstrate not that Kenyatta didn't win but that constitutional and legal safeguards were so breached that the legitimacy of the election outcome is open to question.
Kenya had put high hopes that the electronic registration and identification of voters would eliminate allegations of rigging that sparked off protest in 2007 which degenerated into tribe versus tribe violence in which more than 1000 people died and 600,000 were evicted from their homes.
A 2008 government report examining the 2007 electoral process found that vote counts were changed by extensive perversion of polling, probably by ballot-stuffing, organized impersonation of absent voters, vote buying and/or bribery.