Much to worry about as Kenya goes into elections again

Volume 14, Issue 1  | 
Published 03/07/2017
George Kegoro

Presently the Executive Director of OSIEA, having been with KHRC and ICJ -K previously. He is a well-known and respected Human Rights Activist.

In December 2016, Mkenya Daima, an entity of Kenya’s private sector, convened a conference in Kwale to which they invited all the leading political actors in the country to sign a pledge that they would carry out peaceful campaigns during the 2007 elections. While President Uhuru Kenyatta attended the conference and also signed the peace pledge, the leadership of the opposition skipped the event and instead sent a strongly-worded letter explaining their action. The opposition stated that they had no confidence in the process leading to the signing of the pledge, because the private sector had a long history of political partiality towards the government and had never shown an interest in the concerns of the opposition.

The signing ceremony in Kwale reflects the growth of a public campaign for peace which has now become a prominent part of Kenya’s electoral process. Violence has been a feature of Kenya’s electoral experience since the re-introduction of multiparty politics. The two elections, in 1992 and 1997, which followed the re-introduction of multiparty politics, were accompanied by significant amounts of violence in parts of the country, and while the elections in 2002 were peaceful, the   next elections in 2007 were followed by the most horrendous violence in the country’s political history.

The experience of violence eventually led the Electoral Commission of Kenya (ECK) to fashion out rules of conduct that required all political parties to sign that they would subscribe to a code of conduct that included a pledge not to support violence. During the campaigns for the 2007 elections, the ECK took the anti-violence one step further when it instituted country-wide peace committees that would take responsibility for resolving local disputes with a view to minimizing the possibility of violence.

While the spectre of violence had created concern and led to the establishment of a code of conduct aimed at its prevention, it is the violence of 2007 that is responsible for the emergence of a prominent public campaign for peace in the context of elections. The concern for peace is reflected in the new Constitution, which was enacted after, and partly in response to, the 2007/8 violence. The Constitution indirectly devotes attention to addressing violence, and requires the Independent Electoral & Boundaries Commission (IEBC) to enact legislation that would govern the affairs of all political parties participating in elections. The code of conduct that the IEBC has enacted requires political parties to condemn violence, to take steps to prevent intimidation, and to promote ethnic tolerance.

The 2013 elections provided the occasion for an unprecedented campaign for peace in the history of Kenyan elections. The most prominent actors in this campaign included the private sector, which had also played a role in negotiating an end to the 2007 violence, the religious sector and the international community. Apart from funding local groups that campaigned for peace, a number of international donors contributed to the considerable expenses incurred in holding the elections. As part of this, a number of member states of the EU raised $ 35 million while the United States provided a further $36 million towards Kenya’s elections. This generous support has been characterized as forming part of the responsibility to protect which the international community saw its role as amounting to.

Although the 2013 elections were the most expensive in Kenyan history, they faced familiar difficulties including a failure in the technologies that the IEBC had deployed and which were meant to improve accountability for the results. In the face of these failures, the IEBC resorted to manual methods of tallying and transmitting the results of the elections, for which it was heavily criticized. Uhuru Kenyatta and William Ruto, who faced separate cases before the International Criminal Court over their alleged role in the violence that followed the 2007 elections, had come together to form a coalition under which the two shared a presidential ticket in 2013. They were declared president and deputy president and were adjudged to have beaten Raila Odinga and Kalonzo Musyoka who ran together in the strongest opposing ticket. A petition which Odinga filed in the Supreme Court challenging the results of the election was, however, dismissed, paving the way for Kenyatta and Ruto to form government under the Jubilee coalition.

During the time that Kenyatta and Ruto have been in power, the relationship between the Jubilee government and the opposition has not been smooth. Dissatisfaction over the results of the elections, and also the manner in which the Supreme Court handled the ensuing election petition, has been a key grievance by the opposition. Believing that the IEBC had stolen its victory in 2013, the opposition demanded a dialogue with the government that would provide opportunities to discuss electoral reforms. To press this demand, the opposition staged a series of rallies to which the government, new in power and unsettled by other problems including the cases before the ICC, viewed with alarm. When it became clear that the government would not yield to the demands for political dialogue, the opposition then announced the commencement of a movement, ‘Okoa Kenya’, which would seek an amendment to the Constitution. To achieve such an amendment, whose contents also targeted the IEBC, the opposition would require one million signatures which would then force a referendum on whether or not there should be constitutional reforms.

In the end, the staging of a referendum was defeated when the IEBC announced that, after verification, the number of signatures collected by the opposition fell short of the one million threshold for a referendum.

Even after the defeat of the referendum effort, the opposition maintained its demand that the IEBC could not conduct the 2017 because of the tainted manner in which it had conducted the previous ones. However, Jubilee always managed to shield the IEBC commissioners from the pressure to resign office, thus delaying any action on the demands by the opposition.

Weekly protests that the opposition staged in Nairobi and the strongholds of Odinga’s support in Nyanza, eventually paved the way for agreement for a structured dialogue that led to the exit of the IEBC commissioners from office at the end of 2016. New commissioners took office in January 2017, only seven months before the general election.

While there has always been a level of unpreparedness in the management of Kenya’s elections, it has never been left this late before commissioners were appointed to office. It would seem that in the controversies over whether the IEBC commissioners were fit to run the next elections, the government chose a strategy of conceding as little as possible as late as possible. In the end, while it was pressured to concede the exit of the IEBC commissioners, this concession came very late and is a major reason for the unpreparedness.

Emerging patterns suggest that the public did not fully understand the import of the electoral opportunities presented by the new Constitution during the 2013 elections. As part of the misunderstanding, a large number of candidates considered membership of the Senate to be more desirable than becoming governors. As a result, the clamour to become a senator, which was evident in 2013, has now been replaced by a stampede to be elected as governor. Also, the elections have attracted an unprecedented number of candidates for the position of member of the county assembly, reported to be more than 40,000 candidates.

These patterns suggest that the logistical and strategic challenges of running elections under the new Constitution are only just getting understood and the relative novelty of the system of elections under the new constitution would have required a more settled commission as the manager. Coming to office so close to the elections, the existing situation does not provide confidence that the commissioners will be in a good position to discharge the responsibility placed in their hands.

The poor performance of the IEBC commissioners that have just left office has led to a significant loss of confidence in the institution. Whereas the new commissioners have done nothing wrong, they will be affected by the pervasive low confidence levels that the institution that they head suffers from.

In the face of official intransigency over the IEBC commissioners, the opposition was forced to resort to desperate methods of generating pressure against the government, including by getting the opposition leadership onto the streets where they and their supporters were subjected to police brutality including through the use of teargas. The spectacle of personal humiliation of opposition figures including Odinga and Musyoka who have held senior public positions, could not have contributed towards national cohesion. On the contrary, the personal humiliation of the opposition leadership will go into the store of grievances that the opposition and its support have had towards the government.

By acting in such an intransigent and high-handed manner towards the opposition, the Jubilee leadership has alienated a significant part of the country and there has also been a further deepening of the polarization that has characterized the country’s politics. This is the context under which Kenya goes into the next elections, about which there is much to worry.  

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