With the announcement that Uhuru Kenyatta has won Kenya's presidency with 50.07 percent of the votes cast over Raila Odinga with 43.3 percent, the first act of the election drama is over. But the second act – a succession of courtroom battles challenging the legitmacy of the result and the competence of the electoral authorities – started immediately and will run for at least another three weeks.

After having swept parliamentary and senate elections, Uhuru Kenyatta's Jubilee Coalition was poised to win Kenya's presidential election, but the announcement of a fresh audit of the result raised new uncertainties 

By early Friday evening Uhuru Kenyatta had built an near unassailable lead against his main rival, Raila Amolo Odinga, the Coalition for Reform and Democracy (Cord)’s presidential candidate and until now, the co-principal of the grand coalition government that has run the country since 2008.

With about 90 per cent of the vote counted, Kenyatta was leading with 5.19m (49.9 per cent) against Odinga’s 4.5m votes – a hair’s breadth away from the stipulated 50 per cent + 1 required for victory. And this, with many constituencies in his Mount Kenya stronghold still to be declared. But then late on Friday the Independent Electoral & Boundaries Commission (IEBC) announced a fresh audit into the voting tallies which will further delay announcements of the final results.

As the country anxiously awaits the final announcement from the IEBC, security has been beefed up in possible trouble spots.

In Eldoret, a hotspot during the 2007 post-election crisis but now also a bastion of the new-found alliance between Kenyatta and his running mate, William Ruto, General Service Unit paramilitary police as well as regular and administration police are patrolling the streets.

Security personnel have also been reinforced in most of Odinga’s strongholds, including Kibera and other informal settlements in Nairobi, and parts of Nyanza province.

Little explanation for delays

At the Bomas Centre of Kenya where the IEBC has set up its National Tallying Centre, no explanations are being given for the prolonged delays. Sources said the Commission may be loathe to announce the final result at night – because of the security risks. Everyone remembers the disputed 2007 elections when President Mwai Kibaki was hurriedly sworn in at night.

At about 5pm on Friday, it had appeared that the Commission’s chairman Ahmed Isaack Hassan would announce a final result. The dais at the Bomas of Kenya had been laid out and, with the media’s cameras trained on Hassan and his team, the national anthem played portentously.

When the final announcement was not forthcoming, rumours began to fly. Many suggested that Odinga’s public concession of defeat would be necessary to calm tensions. Odinga's allies and civic activists are asking serious questions about the integrity of the process.

A court case challenging the integrity of the entire counting process filed by the Africa Centre for Open Governance earlier on Friday was dismissed in the afternoon. In what is becoming a pattern at the recently reformed judiciary, the three-judge bench observed that they had no jurisdiction on the matter and referred the petitioners to the Supreme Court.

The court case was filed because of concerns raised by civil society activists as well as Odinga’s Cord Alliance. It stems from the extraordinary system failure of the IEBC’s expensive digital elections technology. Hassan acknowledged the weight of technical problems as worries grew over vote tallying delays on the day after the election.

Questions as to what exactly happened with the electronic voter identification and transmission system are bound to plague the Commission well after the new President has been sworn in.

Similarly, Hassan’s unilateral decision to revert to the manual paper count tallying system – the legality of which is in question – has exposed the Commission to accusations of complicity in electoral malpractices.

One of the conditions for the IEBC reverting to the manual counting system was its agreement to organise a thorough results verification process: it was to include a full audit for all party agents.

After the first six constituencies went through this audit – a process that lasted an hour for each constituency – the IEBC deemed that it would take to long to subject results from all 290 constituencies to such scrutiny.

Sources at the Bomas Centre said the National Security Advisory Committee (NSAC) advised the IEBC to clear the counting hall of agents and speeded up the process.

At the same time, NSAC was critical in organising the airlifting of returning officers from remote areas to the tallying centre at Bomas. Questions are likely to be asked apout the role of the securocracy in the management of the national election.

Court cases likely

There will be many appeals going through the courts. The public has confidence in the reformed judiciary led by veteran civil society activist and law professor, Dr Willy Mutunga.

However, recent rulings suggest that much still needs to be done in the courts. Less than a month before the elections, a five-judge bench ruled that it had no jurisdiction to decide whether Kenyatta and his running mate Ruto were fit to run or hold office.

The bloodshed, ensuing economic crisis and damage to Kenya's national standing caused by the 2007/2008 election violence probably boosted the success of a peace campaign during this tense election period. Involving media actors, religious groups, the corporate establishment, Western donors, the campaign mostly run by local civic groups appealed to the youth to desist from violence.

With the failure of the rival parties in the outgoing coalition government to reconcile the country since the last election, the last-minute nature of the campaigns is understandable.

Peace concerns censor media

What is problematic is how the peace campaign and its legion of promoters has allowed the domestic media and other actors to paper over the fundamental errors, and worse, that characterized these elections.

The most glaring example of this was a controversy over rejected ballots. As high as 335,000 at one point, they were mysteriously reduced to 23,000 (they now hover around 100,000) when the Commission resorted to the manual paper count. Hassan explained the discrepancy as a computer glitch which had somehow multiplied the rejected votes eight times.

Few questions have been asked, despite the fact that Hassan has refused to explain in any detail the reasons for the failure of the Commission’s $200m electronic election system to launch.

To his supporters, the greatest victim of the peace-cum-censorship campaign has been Odinga. At a press conference on Thursday, senior Cord officials led by Odinga’s running-mate, Stephen Kalonzo Musyoka raised issues about the conduct of the Commission and the integrity of the electoral process.

Similarly, documents in our possession, show that mobile phone operator Safaricom, which was working with the IEBC in transmitting results from polling stations to the National Tallying Centre, had raised concerns about the IEBC’s commitment in ensuring that the system worked smoothly.

And the climate of ‘positive censorship’ extends to a careful reporting of violence and electoral malpractice surrounding these elections. It has also not helped that the many teams of foreign election observers have generally taken a blasé attitude to the systemic failures that arose when the votes were being counted.

Ethnic voting key to result

Little of this will count for much in the coming hours and days of the possible Kenyatta victory. Despite being an indictee for war crimes at the International Criminal Court (ICC), Kenyatta has run a stunning campaign. Turning the obvious disadvantage of his looming trial (together with that of his running mate Ruto) at the ICC, the duo galvanized their respective Kikuyu and Kalenjin ethnic blocs into voting en masse for them.

And even when his family’s extensive land-holdings come under fire – according to a commission of inquiry a decade ago, the Kenyatta family is the country’s biggest land owner with about 500,000 acres – Kenyatta managed to weather the storm of vitriol created by the accusations.

Ethnic voting was the organising principle of these elections. The country voted on ethnic lines in an unprecedented manner. In their Mount Kenya and Rift Valley bastions, they garnered upwards of 80 per cent support – a trend also seen in Odinga’s Nyanza stronghold. But their superior numbers appear to have won out, even as Odinga bravely tried to secure the vote outside the Jubilee strongholds.

Emblazoned on a giant screen in the centre of Kenya's heavily guarded vote counting centre just outside Nairobi, Wednesday evening, are the results of the presidential election: 53.7 percent or 2.8 million votes for deputy prime minister Uhuru Kenyatta and 42.06 percent or 2.2mn for prime minister Raila Odinga.

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