Why Raila changed tack and opted for the court

Police officers and the public engage in running battle at Kondele in Kisumu after the youth barricaded Kisumu-Kibos road on August 11. (Photo: Denish Ochieng/ Standard)

A State clampdown on two civil society groups, divisions over mass protests, and pressure from the international community reportedly prompted the Opposition to opt for the Supreme Court.

While the Opposition leaders had consistently vowed they would not petition the court over the disputed presidential election, it has emerged that various competing interests were at play, leading to Wednesday's decision by NASA leader Raila Odinga to go to court.

The Standard has established that some hardliners were pushing for mass action, citing the frustrations the Opposition had encountered, including the refusal of the Independent Electoral and Boundaries Commission (IEBC) to allow them access to its servers to verify results.

However, a moderate group in NASA cautioned about the risk of the peaceful demonstrations escalating into violent protests and the State blaming them for the subsequent loss of lives.

This group reportedly cited the death toll from the pockets of protests following the declaration of President Uhuru Kenyatta as the winner of the presidential vote, arguing that if the brutal crackdown by security forces was anything to go by, widespread protests would be bloodier.

Apart from the mounting pressure from the international community, another development that buttressed the case for those pushing for court action reportedly was the State crackdown on two human rights groups.

Raila's presidential campaign team had hoped that either the Africa Centre for Open Governance (AfriCOG) or the Kenya Human Rights Commission (KHRC) would independently petition the results so that they would ride on their case.

But Monday's threat to deregister the two, followed by a police raid at AfriCOG offices, left NASA with no option but to seek the legal way.

"We always knew that even though we would not go to court, some serious group or individual would petition the results, but Jubilee was taking steps to frustrate these groups, leaving us with no option," Raila's adviser, Salim Lone, said.

Last Friday, shorty before IEBC made its declaration, NASA walked out of the Bomas of Kenya national tallying centre and announced that it would not sign the result declaration form. The leaders also vowed that they would not go to court.

On Saturday, NASA held a press conference, insisting that the court process was not on the cards. Senator James Orengo then declared they would resort to other means including 'extra-parliamentary' options to reject the results.

The press conference was preceded by a meeting chaired by Raila and attended by Kalonzo Musyoka, Musalia Mudavadi, Moses Wetang'ula, and Isaac Ruto at the Okoa Kenya offices.

On Sunday, Raila made a first public appearance in Kibera and Mathare, where he asked his supporters to boycott work on Monday and wait for his announcement on Tuesday. The 'big' announcement was then pushed to the following day.

But on Wednesday, a near five-hour meeting held at a private residence in Riverside and attended by Raila, Kalonzo, Mudavadi, and their strategists resolved to use the legal way to avert more deaths, given that already about 24 had been reported dead in skirmishes.

Insiders said that some members of the coalition were right from the beginning opposed to mass action as a means to solve the dispute.

"We didn't want violence from the beginning since we know the Government has monopoly of tools of violence. We didn't want more casualties," Lone added.

He noted that after some NASA supporters went on the streets to protest against IEBC's announcement of President Uhuru Kenyatta as the winner of last week's election, the coalition ruled out mass action.

"You can see many of our people were recklessly killed for protesting. We were aware that Jubilee was eagerly waiting to kill more after we announced that we would go to the streets. We didn't want our people to die," another source said.

Another source said NASA was prepared to peacefully settle the dispute were it not for the IEBC's chairman's refusal to acknowledge their request.

"We wrote a letter to Wafula Chebukati requesting him to allow us access to the commission's servers. He refused to allow us, yet what we wanted was just to reconcile the figures. If this was done and we were satisfied then we couldn't be where we are now," he said.

He added that the death of IEBC IT manager Chris Msando signalled that the ICT systems had been interfered with.

"We are now going to court to demand access to IEBC server information so that we can reconcile forms 34A and 34B. We will then reconcile the figures with those from our agents," the source said.

An insider said NASA had a change of heart because of pressure from the international community.

The source said they had received information that Jubilee had deployed hundreds of security officers in areas perceived to be opposition strongholds and that peaceful protests would have turned chaotic.

"We had already received information that the police were under instructions to kill anybody protesting. The blame would have been put on Raila. We had to change our mind and seek legal redress first."

The source said NASA had received oral and written submissions on how the results were allegedly doctored in favour of President Uhuru Kenyatta.

"By yesterday, we had received overwhelming evidence to show the world and the country how the election results were doctored for the presidency and some gubernatorial candidates. If the Supreme Court turns a blind eye to the evidence, we shall have other options," the insider added.

He went on: "Just as Jubilee has indicated that it was the worst thing for NASA to move to court as it will legitimise Uhuru's win, they should be cognisant of the fact that all these issues have been deliberated upon and we are prepared for them.

-Report by Geoffrey Mosoku, Moses Njagi, Roselyne Obala, Rawlings Otieno, and Protus Onyango

[email protected]