Lessons from Kenya’s di­vi­sive elec­tion

The coun­try faces a di∞cult path to rec­on­cil­i­a­tion, po­lit­i­cal sta­bil­ity and eco­nomic progress

The East African - - FRONT PAGE - ANAL­Y­SIS WACHIRA MAINA Wachira Maina is a con­sti­tu­tional lawyer

In 1966, Pres­i­dent Jomo Keny­atta amended the Con­sti­tu­tion to force 29 mem­bers of the Na­tional As­sem­bly and the Se­nate who had de­fected from the rul­ing party, Kanu, to Jaramogi Oginga Odinga’s Kenya Peo­ple’s Union, (KPU), into a se­ries of by-elec­tions that came to be called “the lit­tle gen­eral elec­tion.”

Kanu won a ma­jor­ity of the now va­cant seats and though KPU won the pop­u­lar vote, Jomo Keny­atta was able to lever­age the re­sult to fur­ther amend the Con­sti­tu­tion and, even­tu­ally, dec­i­mate the op­po­si­tion. Fifty years later, his son Pres­i­dent Uhuru Keny­atta, lack­ing the le­gal means to force his op­po­si­tion into a sim­i­lar de­ba­cle, rushed head­long into an elec­tion boy­cotted by his prin­ci­pal op­po­nent, Raila Odinga, and un­wit­tingly con­verted what should have been a corona­tion into a ref­er­en­dum on his gov­ern­ment. The re­sults — al­ready con­tro­ver­sial be­cause the In­de­pen­dent Elec­toral and Bound­aries Com­mis­sion (IEBC) has re­sults from ar­eas that never voted – will al­most cer­tainly dam­age and weaken Uhuru’s po­lit­i­cal au­thor­ity be­yond re­pair.

This was sup­posed to be the elec­tion that buried Mr Odinga’s po­lit­i­cal ca­reer like the lit­tle gen­eral elec­tion buried his fa­ther’s. In­stead, it will re­alise none Uhuru’s hopes and bring about all the con­se­quences that a more re­flec­tive leader would have fore­seen.

First, it will bol­ster Mr Odinga’s po­lit­i­cal le­git­i­macy as it ret­ro­spec­tively un­der­mines Uhuru’s ear­lier claim that he had over­whelm­ingly won the elec­tion of Au­gust 8.

Sec­ond, it will strengthen deputy pres­i­dent Wil­liam Ruto, as Keny­atta be­comes ever more reliant on him.

Third, a weak­ened Uhuru must be­come more au­thor­i­tar­ian and yet, with­out the reservoirs of le­git­i­macy that come from an elec­toral man­date, he will find the pop­u­la­tion in­creas­ingly re­sis­tant. The up­shot will be that what was ini­tially a po­lit­i­cal cri­sis will metas­ta­sise, be­com­ing a con­sti­tu­tional cri­sis that must un­der­mine the very sta­bil­ity that the business com­mu­nity craved when they ar­gued for an early elec­tion.

Cen­tral to Keny­atta’s prob­lems is his shrunken elec­toral man­date. The fi­nal turnout fig­ures have not been an­nounced. The chair of the IEBC, Wa­fula Che­bukati, had ini­tially an­nounced a voter turnout of 48 per cent. No sooner had he done that than he tried to walk that num­ber back — say­ing it was “a best es­ti­mate” — as re­sults from mon­i­tors in the field showed that this was patently false. On the most op­ti­mistic out­look, the real num­ber will prob­a­bly be nearer or lower than 40 per cent. If that turns out to be the case, the im­pli­ca­tions are dev­as­tat­ing.

In the first elec­tion on Au­gust 8, five out of ev­ery six reg­is­tered vot­ers turned out to vote. A 40 per cent — or lower — turnout means that less than three out of six vot­ers have come out to vote barely two months later.

This raises six prob­lems. One, the vote is es­sen­tially a Kikuyu/ Kalen­jin vote, a hugely un­set­tling po­lit­i­cal fact in a coun­try of 44 eth­nic groups.

Two, voter turnout among the Kikuyus and the Kalen­jin did not come any­where near what it was in Au­gust. Though elec­toral stud­ies show that such a turnout is nor­mal in elec­toral re­runs, Keny­atta’s op­po­nents will seize on this as proof of, at best, grow­ing fa­tigue and at worst, dwin­dling sup­port for Keny­atta in his own back­yard.

Three, Mr Odinga will spin the low turnout as his do­ing, ev­i­dence, he will say, of a coun­try re­spond­ing to his call to boy­cott the elec­tion.

Di­vi­sive fig­ures

Four, it will leave Kenya even more di­vided than it was be­fore: Keny­atta has been as di­vi­sive a fig­ure as his main op­po­nent Mr Odinga. This elec­tion has sharp­ened those di­vi­sions and Mr Keny­atta’s head­strong — some would say hubris­tic — re­fusal to even con­sider put­ting off the vote to in­crease cross-party trust and im­prove the en­vi­ron­ment, will have cur­dled po­lit­i­cal sen­ti­ment, per­haps ir­re­triev­ably.

Five, the re­sult will reen­er­gise Mr Odinga and, thus pumped up, he will be more in­tran­si­gent to any over­tures from Keny­atta.

Six, and most un­set­tling from an eth­nic vot­ing point, the re­sult in cen­tral Kenya ex­poses Keny­atta’s ten­u­ous hold on the Kikuyu. The turnout sup­ports what many al­ways feared, Keny­atta’s base is anti-raila rather than pro-uhuru: With­out Mr Odinga in the run­ning, they were not mo­ti­vated to vote. Mr Ruto, Keny­atta’s pre­sump­tive heir, will note this with alarm. Can Mr Keny­atta re­ally de­liver the Kikuyu vote to him in 2022?

Un­for­tu­nately, Mr Keny­atta has few op­tions now and none are at­trac­tive. This has ex­posed his soft un­der­belly, serv­ing up a lame duck sec­ond term even if he is able to hold on to the end of his pres­i­dency. That has three im­pli­ca­tions, each of which he will find un­set­tling:

One, look­ing at these num­bers any NASA leader Keny­atta reaches out to with prom­ises of good­ies so as to out­flank Mr Odinga will be coy. Is it worth­while to ac­cept a po­si­tion in an ad­min­is­tra­tion at a time when that seems so ob­vi­ously like a kiss of death?

Two, that Keny­atta is serv­ing his last term will fray his own sup­port within Ju­bilee, a party teem­ing with young politi­cians with po­lit­i­cal gifts to burn and years of po­lit­i­cal life ahead. If they see Keny­atta as a li­a­bil­ity — as these num­bers say that he is — their sup­port will be mostly equiv­o­cal and low key, all geared to wait out Keny­atta’s five years as they con­sol­i­date their ex­pe­ri­ence.

Three, un­able to co-opt the op­po­si­tion, Keny­atta will be thrown back on his al­lies, prin­ci­pally Mr Ruto, on whom he must in­creas­ingly rely to get his mea­sures through par­lia­ment. Mr Ruto in turn will have two con­cerns: First, a le­git­i­mate worry — in the wake of this elec­tion — that he can­not rely on Mr Keny­atta to de­liver the Kikuyu block and sec­ond, a re­al­i­sa­tion that though an­other Kikuyu/kalen­jin al­liance re­mains nu­mer­i­cally at­trac­tive, fronting it in 2022 will be fa­tally toxic in terms of eth­nic re­la­tions in Kenya.

At a min­i­mum, Mr Ruto must see that any win­ning fu­ture coali­tion must reach be­yond Mt Kenya and the cen­tral high­lands of the Rift Val­ley.

Mr Keny­atta has just thrown his deputy a curve-ball: Mr Ruto must now try to keep his cur­rent coali­tion in power even as he cob­bles up a wider coali­tion that can win in 2022. This dual play is both a boon and a bane from where Keny­atta sits: In keep­ing the cur­rent coali­tion to­gether Mr Ruto will be help­ing keep Keny­atta in power but what­ever he does to build a new coali­tion for 2022 will un­der­mine him.

And then there are Keny­atta’s “po­lit­i­cal business” al­lies, the oli­garchs who fi­nance his pol­i­tics and the real power be­hind the throne. Many will al­ready have been think­ing ahead, scout­ing for politi­cians to fund for 2022 as Keny­atta’s sec­ond term ends. This elec­tion re­sult must have shocked them. Some will re­cal­cu­late their risks; some may even de­fect — if not to the op­po­si­tion then to the heir ap­par­ent, Mr Ruto — es­pe­cially if the cri­sis deep­ens.

In a way, this was in­evitable: In five years, Keny­atta has done ev­ery­thing to un­der­mine in­sti­tu­tions and em­power the “con­trac­tor elite” — the oli­garchs — around him. That he must soon find that very elite fickle in their sup­port is his own do­ing. Two thou­sand years ago Aris­to­tle pre­sciently said that democ­racy — to­gether with its in­sti­tu­tions — was safer than oli­garchy be­cause oli­garchies suf­fer a dou­ble risk.”

First, oli­garchs of­ten fall out with each other and, sec­ond— and more usu­ally — they in­vari­ably fall out with the peo­ple. A Keny­atta who can­not de­liver the goods is ripe for be­trayal by his al­lies. Thus aban­doned, he will be fur­ther weak­ened if the op­po­si­tion con­fronts him with vi­o­lent up­heavals.

Some will think that Keny­atta’s now frag­ile coali­tion can sur­vive the com­ing tur­bu­lence. Per­haps that is so but it seems un­likely. Part of the prob­lem is that the ad­min­is­tra­tion is fac­ing deeper prob­lems that will feed Mr Keny­atta’s po­lit­i­cal night­mares. The econ­omy is not do­ing well. The po­lit­i­cal un­cer­tainty has had an ef­fect on it to be sure, but then so has the weather, with its knockon ef­fect on food pro­duc­tion. Our grow­ing debt and its oner­ous in­ter­est re­pay­ments will even­tu­ally bite. Given the ad­min­is­tra­tion’s ap­petite for ex­pen­sive debt — a few other costly loans are lined up — there is more trou­ble to come.

Jug­gling a tanking econ­omy and fis­si­parous pol­i­tics would tax a leader with bet­ter po­lit­i­cal skills and a more equable tem­per than Keny­atta, who started out des­per­ate to be liked in 2013 and now seems keener to be feared. With­out po­lit­i­cal re­sources to draw down and short of eco­nomic per­for­mance to brag about, he will — at least in the short run — turn to re­pres­sion, be­com­ing more au­thor­i­tar­ian as the dou­ble cri­sis bites.

Un­for­tu­nately, the au­thor­i­tar­ian op­tion is never a good one. First, au­toc­racy in­vari­ably solves all po­lit­i­cal con­flicts vi­o­lently. Sec­ond, its suc­cess de­pends on the co­her­ence of the rul­ing elite. Let’s ex­plore each of these two prob­lems.

Us­ing vi­o­lence to solve po­lit­i­cal prob­lems is both in­ef­fi­cient and un­pre­dictable. It is in­ef­fi­cient be­cause it means sig­nif­i­cant in­vest­ments in sur­veil­lance and con­trol. It is un­pre­dictable be­cause what the state can do, the pub­lic can do too. The dra­matic col­lapse of the Ro­ma­nian dic­ta­tor Nico­lae Caeusescu in De­cem­ber 1989 is a case in point. The dic­ta­tor had run a vi­cious and

Jug­gling a tanking econ­omy and fis­si­parous pol­i­tics would tax a leader with bet­ter po­lit­i­cal skills and a more equable tem­per than Mr Keny­atta.”

vi­o­lent regime. In the face of eco­nomic cri­sis, he im­posed a se­vere aus­ter­ity pro­gramme that even­tu­ally pro­voked ri­ots in the town of Timisoara, Ro­ma­nia’s third largest city and a key eco­nomic and cul­tural cen­tre. Caeusescu called for a rally in Bucharest, the cap­i­tal city, in­tend­ing to con­demn the pro­tes­tors and check the spread of dis­con­tent. The crowd grew un­ruly and de­manded that the dic­ta­tor step down. Caeusescu un­leashed his dreaded se­cu­rity forces, the Se­cu­ri­tate, on them but in the week that fol­lowed protests flared up across the coun­try. At that point, the se­cu­rity forces baulked at shoot­ing at the un­armed pub­lic and Mr Caeusescu then fled Bucharest with his wife, deputy prime min­is­ter Elena Caeusescu, on De­cem­ber 22, 1989. Three days later he was ar­rested, sum­mar­ily tried and ex­e­cuted on Christ­mas Day.

The rapid col­lapse of long­time Tu­nisian dic­ta­tor Zine El Abidine Ben Ali in Jan­uary 2011, hot on the heels of vi­o­lent protests trig­gered by the self-im­mo­la­tion of Mohammed Bouaz­izi, a hawker, on De­cem­ber 17, 2010, fol­low­ing eco­nomic and po­lit­i­cal crises, un­der­lines the same les­son.

That brings the sec­ond point into play: The co­her­ence of the rul­ing elite. All regimes must strike some bar­gain with their sup­port­ers, im­plic­itly or ex­plic­itly. Re­pres­sion — as hap­pened in Ro­ma­nia and Tu­nisia — forces regime sup­port­ers to re­cal­cu­late the ac­tu­ar­ial risk of los­ing power. Whether re­pres­sion suc­ceeds over time also de­pends on the co-op­er­a­tion of the se­cu­rity forces. When there is an eco­nomic cri­sis — such as the one we seem headed into — and the coun­try is sharply and deeply di­vided, as Kenya was and is now more so, there is a dual risk. The eco­nomic cri­sis erodes the sup­port of the po­lit­i­cal elite and the po­lit­i­cal di­vi­sions frag­ment the se­cu­rity forces into eth­nic mili­tia. This means that though Keny­atta may be tempted by the au­thor­i­tar­ian op­tion, it is a dan­ger­ous and fickle mis­tress that he will be court­ing.

Ma­jor­ity rule

Given this, his ad­vis­ers — who have been crim­i­nally in­ept in the past — may sug­gest that he tries, in­stead, a softer ver­sion of au­thor­i­tar­i­an­ism, what is of­ten called “rule by law” rather than the “rule of law.” Ac­cord­ing to Javier Cor­rales’ es­say, Au­to­cratic Le­gal­ism in Venezuela this softer au­thor­i­tar­i­an­ism has three el­e­ments: The use, abuse and nonuse of the law in ser­vice of the pres­i­dency.

Given his leg­isla­tive ma­jori­ties, Keny­atta could find this ap­peal­ing and cost-ef­fec­tive. He has al­ready tried it, with some suc­cess, in the re­cent amend­ments to the elec­tion laws. In some ways, Keny­atta will be ge­net­i­cally fa­mil­iar with this in­stru­men­tal use of the law. His fa­ther was a mas­ter of it. If the con­sti­tu­tion did not give him power to do some­thing that he de­sired to do, he sim­ply ig­nored or amended it. In 1975, for ex­am­ple, he fa­mously amended the Con­sti­tu­tion and then back­dated the amend­ment, all so that he could par­don his friend Paul Ngei, who had been barred from a by-elec­tion be­cause he had com­mit­ted an elec­tion of­fence, a crime for which the pres­i­dent could not par­don Mr Ngei with the con­sti­tu­tion as it then stood.

The prob­lem with “au­to­cratic le­gal­ism” is that it de­pends on a qui­es­cent ju­di­ciary. Right now, there is a co­terie of in­trepid judges whom Keny­atta can­not bend to his will. These judges are backed by an un­for­giv­ing Con­sti­tu­tion that, prop­erly in­ter­preted, will nul­lify the laws Keny­atta may need to achieve his aims. Au­to­cratic le­gal­ism then — and the soft au­thor­i­tar­i­an­ism that Keny­atta needs to gov­ern a di­vided coun­try over which he has lost po­lit­i­cal con­trol — does not look like a fea­si­ble op­tion.

This brings Keny­atta to the place where he was be­fore this elec­tion: He ur­gently needs to talk to Raila Odinga. Ill-ad­vised pro­cras­ti­na­tion and a flawed elec­tion have robbed him of his two most pre­cious as­sets: Ini­tia­tive and lever­age. And, sadly, Kenya seems set to lose again, as it did the last time a Keny­atta and an Odinga quar­reled.

Pic­ture: Jeff An­gote

Elec­tion of­fi­cials in Nairobi, were idle the bet­ter part of Thurs­day as only a hand­ful of vot­ers turned up to cast their bal­lot.

Pic­ture: Isaac Wale

Anti-riot po­lice­men in Kakamega town. The gov­ern­ment has in­creased po­lice pres­ence around the coun­try.

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