Uhuru’s 2nd term headaches

LEGACY: Of the 10 is­sues Pres­i­dent Keny­atta has to ad­dress, rec­on­cil­i­a­tion is the trick­i­est


Kenyan Pres­i­dent Uhuru Keny­atta this week took oath of of­fice for his fi­nal term after a gru­elling elec­tion­eer­ing pe­riod that has left the econ­omy in a slump and the na­tion di­vided. In his speech, he out­lined his vi­sion for the next five years, which in­cluded re­ju­ve­nat­ing the strug­gling econ­omy through state­spon­sored agri­cul­ture and man­u­fac­tur­ing sec­tor re­forms.

As part of the re­cov­ery mea­sures, he an­nounced the re­duc­tion of power tar­iffs charged to man­u­fac­tur­ers by 50 per cent.

The Supreme Court’s de­ci­sion to up­hold Uhuru Keny­atta re-elec­tion as pres­i­dent in the poll held on Oc­to­ber 26 this year has put an end to what some feared was shap­ing up to be an in­fi­nite regress of elec­tion-pe­ti­tion-nul­lify-elec­tion again.

That fi­nal­ity will nei­ther calm the in­cen­di­ary pas­sions in­flamed by the Au­gust 8 elec­tion nor bring the pro­tag­o­nists, Uhuru Keny­atta and Raila Odinga, any closer in what looks set to be­come a full­blown po­lit­i­cal cri­sis. The good news, if that, is that the end of the court drama leaves pol­i­tics where it was on Oc­to­ber 26. The bad news is that the Court’s even­hand­ed­ness, that is, split­ting the ju­di­cial losses one apiece for Ju­bilee and Nasa, hard­ens each side’s po­si­tion and prob­a­bly makes the stand­off in­tractable, set­ting the stage for an even more con­tro­ver­sial elec­tion in 2022.

On its part, the Court has won few new friends this elec­tion sea­son. Crit­ics of its first de­ci­sion – in­clud­ing Keny­atta and Deputy Pres­i­dent Wil­liam Ruto – dis­missed the judges as crooks and Nasa flunkies. Those who dis­like the sec­ond one – in­clud­ing some NGOS – think that it ex­poses the court as a cyn­i­cal con­fed­er­acy of elites who have now baulked at desta­bil­is­ing the sta­tus quo. The more char­i­ta­ble, like Nasa, say that the judges were in­tim­i­dated by Ju­bilee to give a com­pli­ant de­ci­sion.

In truth, the po­lit­i­cal cri­sis in Kenya is likely to deepen and no one, not Keny­atta or Odinga, not even the Supreme Court, can claim vic­tory. Here is why.

Agony and ec­stacy

Though Keny­atta seemed as ec­static about the re­cent Supreme Court de­ci­sion as Odinga was about the one made on Septem­ber 1, in truth both knew from the very first that nei­ther the stand­off nor the po­larised na­ture of Kenya’s pol­i­tics was ever not go­ing to be set­tled by ar­gu­ments in court. Odinga went to court to vin­di­cate his be­lief that the elec­tion was stolen, not to solve the un­der­ly­ing po­lit­i­cal prob­lem. Once he won his vic­tory he had to boy­cott the re­peat elec­tion un­less the IEBC made changes that mean­ing­fully ad­dressed the il­le­gal­i­ties that the court found. With­out that, Odinga could not par­tic­i­pate in a re­peat elec­tion and con­vinc­ingly al­lege fraud again. By win­ning the pe­ti­tion chal­leng­ing the first elec­tion, Odinga raised the eth­i­cal bar for the re­peat elec­tion. But by rais­ing that bar, he un­der­cut his own abil­ity to par­tic­i­pate in that elec­tion if the bar were not cleared.

It is now Keny­atta’s turn to be ju­bi­lant. He must know that the re­peat elec­tion was deeply flawed but the Supreme Court de­ci­sion re­moves part, if not all, of the sting in Odinga’s claim that the elec­tion on the 26th was a sham and il­le­git­i­mate. It also helps him and his party to shift dis­cus­sion from that elec­tion’s po­lit­i­cal le­git­i­macy to its legal le­git­i­macy. To make that nar­ra­tive plau­si­ble, he must now reaf­firm the in­de­pen­dence of the ju­di­ciary. The Supreme Court thus finds stranded in a bizarre no-man’s land, praised for its in­de­pen­dence and stand­ing on prin­ci­ple for mak­ing two de­ci­sions that, in ef­fect, can­cel each other out.

The po­lit­i­cal ef­fect is that the pro­tag­o­nists will re­main stuck in the rut and their mu­tu­ally hos­tile sup­port­ers will stay an­gry and mil­i­tant. Odinga, if he means to re­main true to his base, has no choice but to es­ca­late his cam­paign against Keny­atta, who must, in turn, re­main in­tran­si­gent. His olive branch to Nasa on in­au­gu­ra­tion day was telling: it was a brusque, iron-fist-in-avel­vet-glove af­fair, more warn­ing than hand-of-friend­ship.

In truth, it is hard to see how the two can find a meet­ing point. What Keny­atta could of­fer Odinga, Odinga couldn’t ac­cept with­out risk­ing the wrath of his sup­port­ers. What Odinga would want, Keny­atta could not of­fer with­out en­dan­ger­ing the deputy pres­i­dent’s prospects in 2022 and fac­ing the hos­til­ity of his base. Why is this so? Any deal-mak­ing be­tween Keny­atta and Odinga is now hostage to suc­ces­sion poli- tics.

The deal-maker in Ju­bilee is Wil­liam Ruto, a man with a Floren­tine in­stinct for po­lit­i­cal in­trigue. Yet Ruto’s in­ter­ests will in­evitably be da­m­aged by any deal that Keny­atta makes with Odinga, es­pe­cially if the deal in­volves power shar­ing.

Do the cal­cu­la­tions. Keny­atta is serv­ing his last term. Much of what he could of­fer Odinga would en­tail po­si­tions in govern­ment, that may in­volve changes to the law, in­clud­ing per­haps even the Con­sti­tu­tion. There are two prob­lems with that. First, Odinga has been here be­fore, in 2008. He wants nei­ther the la­bel of “ca­reer Prime Min­is­ter” nor an un­re­ward­ing climb­down from his el­e­vated moral claim that the Au­gust 8 elec­tion was a fraud. His sup­port­ers have taken a se­ri­ous beat­ing and 62 peo­ple have died in a bru­tal po­lice cam­paign against Nasa. Odinga’s ar­gu­ment for an in­terim govern­ment fol­lowed by a truly hon­est elec­tion looks like the min­i­mum he can sell to his base.

Keny­atta on the other hand can­not sell an in­terim govern­ment fol­lowed by a mid-term elec­tion to his base, nor could he, even if he wanted to, per­suade Ruto, who has his eyes firmly on the pres­i­dency in 2022, to ac­cept a govern­ment of na­tional unity in which po­si­tions (and any new ones that might be ne­go­ti­ated with Nasa) are shared equally be­tween govern­ment and op­po­si­tion. A ne­go­ti­ated set­tle­ment would be a three-way shar­ing of power, be­tween Keny­atta, Ruto and Odinga. Ev­ery­one gains but Ruto: Keny­atta wins the calm he needs to work on legacy projects and Odinga worms his way back into govern­ment. Mr. Ruto’s hand for 2022 is com­pletely weak­ened es­pe­cially be­cause the only way to cre­ate room for Odinga’s team would be to sack some of Ruto’s al­lies. Iron­i­cally, then, even though Ruto and Odinga are in­stinc­tual politi­cians and in­vet­er­ate deal­mak­ers, in this cri­sis that seems made to or­der for their tal­ents, there are no mu­tual in­ter­ests.

What then? The worst-case sce­nario is that the coun­try stum­bles its way to 2022 and holds yet an­other di­vi­sive elec­tion. In the mean­time, the econ­omy takes a beat­ing as rev­enues shrink and debt re­pay­ments bite. Keny­atta could limp his way to the end of term but then he would have no legacy. He has weak­ened Kenya’s democ­racy partly on prom­ises of de­vel­op­ment. If the econ­omy fails, he can­not re­deem that pledge.

The best-case sce­nario is that a new coali­tion of lead­ers emerges, per­haps from among the Gover­nors, the busi­ness com­mu­nity, the clergy and civil so­ci­ety that re­fo­cuses debate on what cre­ates Kenya’s frac­tious elec­tions: An eth­ni­cally di­vided so­ci­ety and its win­ner-take-all pres­i­den­tial sys­tem. Stud­ies show that in deeply di­vided so­ci­eties, po­lit­i­cal power is a do-or-die af­fair: It de­ter­mines not just who is in­cluded or ex­cluded but also who gets pu­bic goods and ser­vices. Given this, eth­nic groups can­not sep­a­rate elec­toral de­feat from com­mu­nal ex­clu­sion and eco­nomic loss. In par­lia­men­tary sys­tems, eth­nic elites form coali­tions that bar­gain for power and op­por­tu­ni­ties for their peo­ple, which en­hances feel­ings of jus­tice and in­clu­sion. In Kenya, ex­clu­sion is also ter­ri­to­rial be­cause iden­tity groups live in de­fined re­gions. This must be fixed if Kenya wants to make elec­tions less deadly.

Thus far, the pol­i­tics: What of the Supreme Court? There are those who think, es­pe­cially in civil so­ci­ety, that this case has ir­re­deemably da­m­aged the Supreme Court. That is a sup­po­si­tion grounded more in hope than fact. In truth, the Court’s un­pre­dictabil­ity has prob­a­bly per­ma­nently un­set­tled the po­lit­i­cal class. At some level, that is a good thing. The idea that the Supreme Court is a toady of the govern­ment of the day, as the 2013 pe­ti­tion led many to be­lieve, has been proved false.

When the court nul­li­fied the elec­tion. the re­ac­tions on both sides were hys­ter­i­cal: The one of un­con­trol­lable joy, the other of un­bri­dled rage. It was in­evitable that if the pen­du­lum swung the other way, the two sides would trade po­si­tions but the emo­tional in­ten­sity of their dif­fer­ent re­ac­tions would stay the same.

An in­co­her­ent claim

The Court was cer­tainly right to re­verse the cen­tral hold­ing of the 2013 pres­i­den­tial pe­ti­tion and to hold that an elec­tion that has not been held in sub­stan­tial com­pli­ance with the law is no elec­tion at all and must be nul­li­fied. Court crit­ics of the first de­ci­sion carped that elec­tions are about num­bers. That is an in­co­her­ent claim even on its own terms. Even those crit­ics know that though elec­tions be about num­bers, only num­bers that come out of a process au­tho­rised by law count. If not, then there is noth­ing to stop an elec­toral body from con­jur­ing up re­sults out of a tele­phone di­rec­tory or from the head­stones at the ceme­tery. Crit­ics will now wait to see whether the Court re­mains true to the rea­sons that it gave for nul­li­fy­ing the elec­tion of of Au­gust 8. Of in­ter­est to them are the sub­stan­tial ir­reg­u­lar­i­ties that they claim that the IEBC com­mit­ted on Oc­to­ber 26. Some of these ir­reg­u­lar­i­ties are much the same as those that were in­volved in the ear­lier case. But there are also new ones. There is IEBC’S con­fus­ing stance on the 25 or so con­stituen­cies, mainly in Nyanza, in which no elec­tions took place. The Com­mis­sion ini­tially re­ported that it had post­poned elec­tions in these con­stituen­cies. Later, it turned out that those elec­tions had ac­tu­ally been cancelled, two ac­tions with vastly dif­fer­ent legal con­se­quences. As in Au­gust, there are dis­crep­an­cies in the re­sults shown in the forms from the polling sta­tion as against the forms at the con­stituency level and then again be­tween the re­sults in both sets of forms and those posted on the Com­mis­sion’s public por­tal. Fi­nally, IEBC did not ex­plain why KIEMS kits have logs for days other than polling day, the only day on which the kits should have been ac­tive. Those who don’t trust the re­sults from Oc­to­ber 26 think that these ir­reg­u­lar­i­ties prove sys­tem­atic fraud and that the Court, by unan­i­mously up­hold­ing the sec­ond elec­tion, must in­evitably re­verse the rea­son­ing it gave for its Septem­ber 1 de­ci­sion nul­li­fy­ing the elec­tion of Au­gust 8.

With­out pre-empt­ing what the Court will say in its full judg­ment, the crit­ics are miss­ing an im­por­tant point. It was al­ways

What Odinga would want, Keny­atta could not of­fer with­out dam­ag­ing the deputy pres­i­dent’s prospects in 2022.”

go­ing to be much harder to nul­lify a sec­ond elec­tion, this for two rea­sons:

One, the Con­sti­tu­tion is not ex­plicit about what hap­pens if there is a sec­ond in­val­i­da­tion. Most peo­ple as­sume that the process is cycli­cal, that is, that the Court must keep nul­li­fy­ing il­le­gal elec­tions un­til a law­ful elec­tion is held. But the Con­sti­tu­tion does not say so ex­plic­itly. Why should the Court as­sume a po­ten­tially in­fi­nite re­gres­sion on a legal question this mo­men­tous? More­over, this time round, the Court would have had other rea­sons for self-doubt. They had been vi­ciously at­tacked in the much clearer first case, what would have hap­pened this time? And what would they have or­dered once they nul­li­fied the sec­ond elec­tion?

Two, the crit­ics over­looked the fact that once the Court nul­li­fied a first elec­tion, the thresh­old of il­le­gal­ity in that case would be­come the bench­mark for the fu­ture. This means that a fu­ture elec­tion was un­likely to be nul­li­fied un­less the Court be­lieved that the il­le­gal­i­ties had reached, even sur­passed, that bench­mark. Lawyers in­volved in the sec­ond pe­ti­tion should have known that a sec­ond elec­tion would not be nul­li­fied un­less the il­le­gal­i­ties and ir­reg­u­lar­i­ties met the thresh­old of the elec­tion of Au­gust 8. On the whole, the Supreme court is pretty much where it was on the Au­gust 8: Trusted and dis­trusted in equal mea­sure.

The out­look

What out­look, then? The over­all pic­ture is a grim one. There is no quick res­o­lu­tion on the hori­zon. Nasa’s eco­nomic boy­cotts and the spo­radic protests are likely to con­tinue. Even if un­suc­cess­ful, these will be­come a headache and the ef­fects on the econ­omy will be sig­nif­i­cant. The eco­nomic boy­cotts, for in­stance, are already hurt­ing, even though they are hap­haz­ard. In the medium term, boy­cotts will spawn un­cer­tainty in board­rooms and force di­rec­tors in tar­get com­pa­nies to play pol­i­tics by man­ag­ing per­cep­tions on both sides.

The protests will get worse if the econ­omy un­der­per­forms, which now seems in­evitable. At that point, it won’t mat­ter who or­gan­ises the protests, Nasa or labour unions.

Kenya, in short, is in a deep cri­sis; de­fined by An­to­nio Gram­sci, the Ital­ian Marx­ist, as a sit­u­a­tion in which the old or­der has died but the new one is yet to be born.

Pic: File

Pre­di­dent Uhuru Keny­atta takes oath of of­fice.

Pic­ture: File

Pres­i­dent Uhuru Keny­atta (left) and his deputy Wil­liam Ruto.

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