Kenyans have seen power of a con­sti­tu­tion

In the com­ing days and weeks, they will need to de­fend the new le­gal and con­sti­tu­tional ter­ri­tory they have ac­quired

Gulf News - - OPINON -

month ago, Kenya’s Supreme Court threw the coun­try into a tizzy when, in a his­toric de­ci­sion, it an­nulled the re­elec­tion of Pres­i­dent Uhuru Keny­atta, cit­ing “il­le­gal­i­ties and ir­reg­u­lar­i­ties” in the con­duct of the Au­gust polls. The pe­riod since has been dom­i­nated by politi­cians ex­chang­ing re­crim­i­na­tions. Keny­atta’s sup­port­ers have ex­co­ri­ated the court and, in par­lia­ment, where they have a large ma­jor­ity, have pushed to amend the laws that led to the an­nul­ment. Sup­port­ers of his main ri­val, for­mer prime min­is­ter Raila Odinga, on the other hand, have tar­geted the In­de­pen­dent Elec­toral and Boundaries Com­mis­sion’s (IEBC) sloppy and al­legedly crim­i­nal bungling of the poll, call­ing coun­try­wide protests to press for ac­count­abil­ity and re­form.

It was in this poi­soned at­mos­phere that the IEBC an­nounced that a fresh elec­tion would be held on Oc­to­ber 26, with Odinga and Keny­atta be­ing the only can­di­dates on the bal­lot. Now that has been thrown into doubt fol­low­ing the an­nounce­ment by Odinga that he and his run­ning mate, Kalonzo Musyoka, would with­draw from the race. Ideally, this would be wel­come news for Keny­atta, but these are far from ideal times. Rather than hand­ing the pres­i­dency over to him on a plat­ter, Odinga iron­i­cally took ad­van­tage of an ob­scure para­graph in the Supreme Court judge­ment that con­firmed Keny­atta’s win in 2013, to push it a lit­tle fur­ther away.

In that pe­ti­tion, also filed by Odinga, the court opined that if a can­di­date was to drop out of the race af­ter an an­nul­ment, then the elec­tion would need to be re­peated from a scratch, with a fresh slate of can­di­dates. This would de­lay the elec­tions by at least an­other two months and, cou­pled with the on­go­ing street protests and pres­sure from both the busi­ness com­mu­nity (which has suf­fered losses due to the po­lit­i­cal un­cer­tainty) and jit­tery western en­voys, would force Keny­atta to ne­go­ti­ate a so­lu­tion.

That, in fact, may be what Odinga is striv­ing for. Kenyan politi­cians, af­ter all, have be­come adept at the game of brinkman­ship, driv­ing the coun­try al­most to the precipice be­fore pulling back with an agree­ment at the 11th hour. The truth is, de­spite all the talk of a con­sti­tu­tional cri­sis, this is any­thing but that. The le­gal op­tions are very clear. The cri­sis that Odinga’s with­drawal presents is rather a po­lit­i­cal one. It is a cri­sis of le­git­i­macy. Keny­atta knows, de­spite his rhetoric, that with­out Odinga’s par­tic­i­pa­tion, half the coun­try would view his win as il­le­git­i­mate, which could make a fur­ther five-year ten­ancy of State House pretty un­com­fort­able. The out­lines of a po­lit­i­cal deal are also very clear. Odinga agrees to lend le­git­i­macy to the process in re­turn for shelv­ing the con­tentious amend­ments to the Elec­tions Act snaking their way through par­lia­ment as well as re­forms to IEBC and the elec­toral sys­tem.

For the first time, Kenyans have had a taste of a world where the law can tame state power — and they ap­pear to like it.

One opin­ion poll showed that more than three-quar­ters of likely vot­ers were happy with the nul­li­fi­ca­tion, sig­nif­i­cantly in­clud­ing more than half of vot­ers in Keny­atta’s eth­nic strong­hold. That is it­self most en­cour­ag­ing and shows just how out of step Kenyan politi­cians are with the coun­try’s mood.

In the com­ing days and weeks, Kenyans will need to de­fend the new le­gal and con­sti­tu­tional ter­ri­tory they have ac­quired. Al­ready there is a rear­guard ac­tion by the es­tab­lish­ment seek­ing to roll back the gains, with Keny­atta’s ad­vis­ers and sup­port­ers now openly tout­ing the du­bi­ous ben­e­fits of benev­o­lent dic­ta­tor­ship. But Kenyans have seen what the con­sti­tu­tion makes pos­si­ble, and it is un­likely that they will be eas­ily swayed. Pa­trick Gathara is a strate­gic com­mu­ni­ca­tions con­sul­tant, writer and award-win­ning po­lit­i­cal car­toon­ist in Kenya.

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