In June last year, you could not turn to a US news website, without reading some kind of analysis of whether or not the Affordable Care Act of 2010 (known to one and all as ‘Obamacare’) would survive the attempt to have it struck down by the Supreme Court.
Reading the many persuasive arguments advanced, I little dreamed that a day was coming when Kenya’s own Supreme Court (by then already in existence) would soon be called upon to make its own historic judgment.
But that day did come – and with it the realisation by those five men and one woman, currently sitting on the Supreme Court, that no matter what they have done in the past, or may yet do in the future, it is this one decision that will define them for all time.
And if you have as many lawyer friends as I do, by now you must be as sick and tired as I am, of hearing the many coherent arguments that can be made to support one side or the other.
However there is yet another argument currently obsessing many Kenyans, and one which allows even laymen to hold informed opinions. And it is this: assuming the decision reached by the Supreme Court leads to a fresh presidential election, will its outcome be much the same as the earlier one, or will it be markedly different?
This is not an easy question to answer. For every day seems to bring new factors which must be considered in weighing this matter:
Last week, for example, it seemed to me that the man who held the key to this outcome was the Deputy President-Designate, William Ruto. And I thought that provided he was able to marshal the same fervent support and overwhelming turnout in the Rift Valley that we saw on March 4, then the PM Raila Odinga was bound to lose any repeat election.
In this context, it seemed to me that the issue depended purely on a factor which connoisseurs of political irony would relish: that if President-elect Uhuru Kenyatta, who has been urging the ICC to dismiss the case against him, were to succeed in his objective, this would greatly diminish his chances of victory in that repeat election.
Consider this: Ambassador Francis Muthaura’s lawyer, Karim Khan, at the press conference held last week, stated emphatically that the ICC prosecutors were mistaken in their assertion that the National Security Intelligence Service had not fully cooperated with their investigators. In Khan’s view, the NSIS had cooperated fully with the ICC.
Now, bearing in mind how Kenyans think, how would it appear – given this supposed full cooperation by the NSIS, working under the Kibaki administration – if the ICC indictees from Central Kenya were let off, while those from the Rift Valley were left with their charges still standing?
William Ruto may be a very clever man, but not even he could convincingly argue that all this was perfectly in order, and that he would proceed to The Hague, while “his brother” Uhuru remained in Kenya, completely freed from the stigma of being an ICC indictee.
But now Ruto’s problems at the ICC seem to be coming to an end too; a key ICC witness has renounced his previous testimony, and apparently demolished the case against Ruto.
All in all, if we did have a repeat presidential election, the ICC would no longer be a major consideration, one way or another.
Where then would all this leave Raila?
Oddly enough, he would be in a much stronger position than before.
For in the postmortem analyses of the voting pattern, something has emerged, which is potentially a game-changer:
It now turns out that Raila’s “core support” was not just in the Kamba and Luo traditional voting blocks, as argued in the much-debated “tyranny of numbers” theory. Rather Raila also had massive support in Kisii, Western and Coast provinces and in various marginal regions as well.
As such, Raila came into that election with the distinct upper hand: and if indeed he did lose, it was solely due to the superior turn out in Central Kenya and the Rift Valley.
In a second round of voting then, Uhuru’s tally can only remain the same, or go down; Uhuru has already hit his peak. While Raila only need energise his core supporters to turn out in bigger numbers for his tally to rise dramatically. Even with Ruto firmly at his side, Uhuru could still lose.
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