Election dispute big test for Kenya's top judge

March 12, 2013 - 12:31 PM
Kenya Election

Kenya's Chief Justice Willy Mutunga speaks to the media after receiving a certificate of the recent election results, a matter of protocol, from Chairman of the election commission Isaak Hassan, unseen, at the Supreme Court in downtown Nairobi, Kenya Monday, March 11, 2013. Uhuru Kenyatta, the son of Kenya's founding father, was named the winner of the country's presidential election on Saturday with 50.07 percent of the vote, but his opponent Raila Odinga refused to concede saying he had plans to petition the Supreme Court, alleging multiple failures in the election's integrity that he said has put Kenyan democracy on trial. (AP Photo/Sayyid Azim)

NAIROBI, Kenya (AP) — Confidence was so low in Kenya's courts after its 2007 election that people preferred to settle their disputes with machetes and bows and arrows. After this year's disputed presidential vote, there has been no violence, in part because of the faith the country has in its highest-ranking judge.

Chief Justice Willy Mutunga will soon preside over the biggest case of his short judicial career. Last weekend the country's election commission named Deputy Prime Minister Uhuru Kenyatta the winner of the March 4 presidential election with 50.07 percent of the vote.

Prime Minister Raila Odinga is challenging that result, saying there has been massive rigging. Odinga's camp said Tuesday that the prime minister was cheated out of 1.8 million votes, a margin that would give him an outright win.

The March 4 election was the first since postelection violence killed more than 1,000 people in 2007-08. This postelection period has not seen any violence. Odinga asked his supporters for calm, and Kenyans seem to have more faith in their government.

Mutunga on Monday said the election case would be heard "impartially, fairly justly and without fear, ill-will, prejudice or bias and in accordance with our constitution and our laws."

Mutunga's career as a social and political activist has placed him near Kenya's top politicians for decades, and he's shared his opinion on them. One quote from the 2006 book "Raila Odinga: An Enigma in Kenyan Politics" may become an issue for the case he soon presides over.

"I am convinced Kenya's transition needs Raila as the president of this country," author Babafemi A. Badejo quotes Mutunga as saying.

Mutunga has been "a committed activist in the pro-democracy movement in Kenya since the 1970s," according to a biography posted on a Kenyan government website.

Unlike other judges in Kenya, many who know Mutunga believe his independence is genuine, and is unlikely to be persuaded by bribes or threats. Mutuma Rutere, of the Nairobi-based Center for Human Rights and Policy Studies, said fairness is Mutunga's "biggest asset."

"There is enough evidence that he can be depended upon to preside over this issue in an independent manner," said Rutere, who worked with Mutunga at the Kenya Human Rights Commission. "His whole life has been about promoting justice and democracy."

Mutunga knows Odinga well. In the late 1970s, as former Kenyan President Daniel arap Moi consolidated his hold on power, Mutunga was jailed in 1982, the same year Odinga was detained for alleged treason. Later the two joined a pro-democracy group called the Young Turks.

In the book "Raila Odinga," Mutunga is quoted as saying Odinga "is a nationalist and a patriot. He has always struggled against dictatorship and oppression and been for social justice."

"Though it may sound contradictory, he is also an ethnic baron. He has not sorted out this contradiction in his life. He uses both nationalist and ethnic cards for the advancement of his political projects," the book quotes Mutunga as saying.

Kenya's 2010 constitution was passed in the wake of the 2007-08 tribal violence. It gives Odinga until Saturday to file his election petition and Mutunga's court two weeks to rule. Kenyatta cannot be sworn in until the case is closed.

On Tuesday, Odinga's team said it is seeking an order from Kenya's High Court to compel the election commission to produce electoral registrars and other documents used in the vote count. Odinga's team says the documents can help prove Odinga was cheated out of 1.8 million votes. It said the election commission is operating under a cloak of secrecy.

"This is a serious indictment on the integrity, ability and above all honesty of the" election commission, Education Minister Mutula Kilonzo said.

Though Mutunga has a reputation for fairness and independence, the Odinga case will present new, difficult tests in a country with a history of extra-judicial executions and unexplained disappearances. Even before Kenyans voted, a letter attributed to a violent gang circulated throughout the country warning of "dire consequences" if Kenyatta was blocked from running.

Kenyatta faces charges of crimes against humanity at The Hague-based International Criminal Court, and his eligibility to run for president was being tested in court.

"If anybody, any candidate, any party, any agency, or any other actor thinks that it will bend the ear, mind and resolve of this chief justice to do anything that is unconstitutional or illegal, then they are mistaken," Mutunga said in statement in February.

Mutunga, 65, was born into a poor family among the Kamba people of Kenya's eastern province and has degrees from universities in Kenya and Tanzania. He has taught constitutional law at the University of Nairobi. After his 1983 release from prison he went into exile in Canada, where he earned a doctorate in law at Toronto's York University.

He returned to Kenya in the early 1990s. Before being named chief justice, he had never been a judge. He has spoken out in defense of homosexuality in a deeply conservative society and is described as a proponent of "neoliberal" judicial reform. He wears a stud in his left ear, an item that became a publicly debated issue as he was named chief justice.

Out of 10 contenders for the job, Mutunga's name was the only one forwarded by the Judicial Service Commission to President Mwai Kibaki. Mutunga's appointment was approved by lawmakers in June 2011.

Gladwell Otieno of the Africa Center for Open Governance, a pro-democracy group in Nairobi, said Mutunga has been a good chief justice. She notes that he is one of only six justices, however. A seventh seat is vacant, opening the possibility of a split decision.

"Ever since he took over the judiciary public confidence has been rising steadily. It's quite high now," Otieno said. Odinga supporters "may expect him to rule in their favor... but he's not alone there and it depends on the quality of evidence they present."

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Associated Press reporter Tom Odula in Nairobi, Kenya contributed to this report.