State of the nation: Kenya after the ‘fragile’ 2013 poll

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Editor: Nic Cheeseman
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In this article our Co-editor, Nic Cheeseman, reflects back on Kenya’s experiences in 2013. He argues that the country is currently at a cross-roads, with signposts pointing both towards ethnic manipulation and civil conflict, as well as democratic consolidation and peace against-the-odds. The country’s recent elections also bear signs of these divergent paths. The future of Kenya’s democracy will depend on the road that the Kenyan people and their political leaders decide to travel down.

Kenya stands at a crossroads. On the one hand, the willingness of political leaders to manipulate ethnic identities for their own ends has increased inter-communal tensions and the prospects for civil conflict. On the other, the political system has been gradually liberalised over a number of elections, leading to a new Constitution. At the beginning of 2013, it was not clear how these two trends would play out. Would the elections be marked by ethnic clashes and political disorder, plunging the country into a second period of crisis? Or would the country somehow find a way to hold peaceful elections and begin to rebuild public trust in the political system?

The latest issue of the Journal of Eastern African Studies is dedicated to understanding the 2013 Kenyan elections and their legacy. The articles, all of which were peer reviewed by experts in the field, cover a range of important topics such as the role of the International Criminal Court (ICC), the mobilisation strategy of the Jubilee Alliance, and the role of decentralisation. In a paper co-authored with Gabrielle Lynch and Justin Willis, I try and explain why the polls were peaceful, and what the elections mean for Kenyan democracy. We identify reasons to be both optimistic and pessimistic about Kenya’s future.

Ahead of the elections, fear of further civil unrest was widespread and palpable. From the streets of Kibera, to the editorial offices of the main newspapers, and on to the beaches of Mombasa, Kenyans and Kenya-watchers worried that the country would once again fragment along ethnic lines. The nature of the election heightened this concern. As in 2007, the polls boiled down to a two-horse race between a Kikuyu leader – Uhuru Kenyatta of the Jubilee Alliance – and a Luo rival – Raila Odinga of the Coalition for Reform and Democracy (Cord).

And as in 2007, the election was controversial because key parts of the electoral system fell apart. A number of new measures designed to prevent electoral fraud were introduced in the wake of the 2008 violence, including the biometric registration of voters and the adoption of a new system in which election results would be relayed to the Independent Electoral and Boundaries Commission (IEBC).  However, none of the new technologies — introduced to reassure losing candidates and their supporters that the process had been fair — actually worked.

Some polling stations did not receive the necessary equipment to biometrically verify voters. In others, the Electronic Voter Identification (EVID) kits ran out of power. Overall, the domestic Elections Observer Group (ELOG), estimate that the equipment failed to work at some point in the day in a majority (55.1 per cent) of polling stations. The system for the early transmission of provisional results fared even worse, grinding to a halt on the first day of counting. As a result of these failures, the IEBC was forced to fall back on manual voting and manual counting procedures. There is nothing intrinsically wrong with this – manual voting is the process used in many consolidated democracies – but the breakdown of the mechanisms designed to prevent rigging was important because it undermined the confidence of Cord leaders, and their supporters, in the polls.

To make matters worse, the result of the election took many by surprise. Most commentators expected the election to be very close, and that a run-off would be needed to separate Mr Kenyatta and Mr Odinga. Instead, the IEBC announced that Mr Kenyatta had won a first round victory by the narrowest of margins: just 0.07 per cent of the vote. Given the nature of the contest, the failure of the electoral system, and the close and controversial result, a repeat of the harrowing scenes of 2008 seemed possible. Why, then, was the election peaceful? We advance four main arguments.

One reason that Kenya avoided violence was that the Jubilee Alliance brought together the Kikuyu and Kalenjin communities, reducing the prospects for violence in the Rift Valley. Many commentators had predicted that Mr Kenyatta and his running mate William Ruto’s attempt to integrate their supporters into a cohesive political machine would fail. After all, their communities had been involved in some of the worst violence in 2008; could they really bury the hatchet and present a united front?

The elections proved that they could, but only after some very clever politicking by Mr Kenyatta and Mr Ruto, who manipulated the ICC proceedings against them to create a ‘siege mentality’ among their communities. Every statement made by an official of a foreign government was seized upon as evidence that the two were victims of an international conspiracy by ‘the West’. By repeatedly implying that the ICC, Mr Odinga, and the donor community were involved in some sort of neo-colonial plot to undermine Kenyan sovereignty, Jubilee leaders created a ‘common enemy’ for their supporters to rally against. The trick worked: although tensions between the two communities remained throughout the campaign, the Kikuyu and Kalenjin communities overwhelmingly voted for Mr Kenyatta, with high levels of voter registration and turnout.

The defusion of ethnic tensions in the Rift Valley went hand-in-hand with a peace narrative that delegitimised political activity likely to lead to instability, which had the effect of limiting the options available to losing parties. This narrative can be traced back generations. It first appeared as what Prof Atieno Odhiambo called the ‘ideology of order’. Both the government of Jomo Kenyatta and that of Daniel arap Moi argued that given the need for national unity to overcome ethnic division and underdevelopment, it was legitimate for the government to prioritise order over democracy.

This argument was often endorsed both by the media and by ordinary Kenyans. Writing just before the 1974 elections, the Daily Nation wrote, ‘Peace and order are in the interest of every citizen, be he a policeman, a Government official or an ordinary citizen … The part which each person plays in this respect will be a major contribution to the nation’s image both here and abroad’. In the run up to the 2013 elections, this narrative was both revived and transformed.

Many ordinary Kenyans, fearing the potential for ethnic unrest, participated in the spread of the peace narrative. Civil society, community groups, and faith-based organisations organised trainings, workshops, inter-community dialogues as well as monitoring and conflict-resolution activities. Media houses and international organisations trained journalists on conflict-sensitive reporting and ran peace campaigns. The resulting consensus around the importance of peace was both understandable and, to an extent, desirable. But the Jubilee Alliance was also able to manipulate the peace narrative to serve its own interests. By arguing that peace should be prioritised at all costs, Jubilee leaders delegitimated public protests, which effectively made it harder for losing candidates to contest the results.

The peace narrative was also used to legitimate a range of repressive strategies including the location of security forces in a number of Cord strongholds, a ban on political meetings and demonstrations that were deemed to represent a ‘threat to peace’ and the use of force to quell dissent. The police and military presence on election day represented the most impressive demonstration of state force in Kenya’s independent history. While they were an understandable precaution, such a heavy deployment of coercive capacity had the effect of intimidating Cord supporters. Under these circumstances Mr Odinga’s hands were firmly tied – to take his protests to the streets risked both undermining his own legitimacy and doing great harm to his followers.

The third reason that the elections were peaceful despite being of poor quality relates to the passing of the new Constitution in 2010. While the peace narrative was widely understood to constrain Mr Odinga, many Kenyans believed that the new Constitution would empower him. Although officially there was no ‘incumbent’ and ‘opposition’ in 2013 because both Mr Odinga and Mr Kenyatta had been members of the power-sharing government, President Mwai Kibaki’s clear preference for Mr Kenyatta meant that if state resources and personnel were used to manipulate the election, it would be to prevent Mr Odinga from securing power. As a result, the democratic reforms included in the new Constitution were understood to benefit Cord more than Jubilee.

The reality was more complex. The reforms introduced between 2008 and 2013 reduced the power of the president in important ways. The creation of a Supreme Court and the vetting of judges paved the way for a more independent and professional judiciary. The disbanding of the Electoral Commission of Kenya and the creation of the IEBC under Mr Ahmed Issack Hassan was warmly welcomed by Kenyans of all political persuasions. Positive early signs increased public confidence: according to opinion polls, trust in the Judiciary reached an all time high, while the IEBC enjoyed unprecedented approval ratings of 93 per cent prior to the election.

But although the new measures looked good on paper, they were insufficient to deliver a credible election. Instead, the partial democratic reforms implemented in the run up to the polls served to confer a sense of legitimacy on the electoral system and so further constrained the ability of Mr Odinga to contest the result of a process that was extremely problematic. Because many aspects of the new Constitution were not implemented by the time of the polls, and IEBC failed to deliver on its early promise, Kenya’s new institutional arrangements ultimately disappointed Cord . All told, more components of the electoral system failed in 2013 than in 2007.

It was, therefore, unsurprising when Cord rejected the official results and sought to contest Mr Kenyatta’s election. In contrast to 2007, though, Mr Odinga did not take his protests to the streets but to the courts. In part, this was because of a lack of support for mass protests as a result of the impact of the peace narrative discussed above. But Odinga’s willingness to contest the result through official channels was also shaped by his belief that although the electoral commission had failed him, the Supreme Court would come to Cord’s rescue. Ahead of the verdict, he said, ‘Let the Supreme Court determine whether the result announced by the IEBC is a lawful one. We are confident the court will restore the faith of Kenyans in the democratic rule of law’.

The new reforms also meant that there was far less support for the idea of civil disobedience than there was in 2007. In that election, European Union election observers openly questioned the result of the election and popular frustration against the Kibaki regime created an environment within which Mr Odinga had considerable domestic and international support for street protests. The situation was different in 2013. Keen to support Kenya’s new political institutions, most electoral observers pulled their punches, while many Kenyans concluded that a peaceful poll was more important than a fair one. Under these conditions, doing anything other than taking the results to the Supreme Court would have undermined Odinga’s stature as a national leader.

In this way, the Constitution made a peaceful election more likely. But Cord leaders were ultimately disappointed: their petitions were not only rejected, but dismissed in a perfunctory statement that, instead of recognising the many failures of the electoral process, simply stated that petitioners had failed to show that the final outcome was the wrong one. To some extent this was inevitable. The court was always likely to take a conservative position, in part because of the pressure from the Jubilee Alliance to avoid a run off, and in part because annulling the election based on procedural failures would have set a dangerous precedent, because Kenyan elections are typically procedurally faulty. Given this, it was always going to take a ‘smoking gun’ — clear and undisputable evidence of systematic election rigging — to force the court’s hand. This is what Cord, operating under intense time pressure, could not provide.

Having realised the limitations of the system, Cord leaders had little option but to accept it. Despite their limitations, the IEBC and the Judiciary continued to enjoy considerable support and Mr Odinga would have been accused of both inconsistency and sour grapes had he refused to abide by the court’s decision.

The Constitution also helped to ensure a peaceful election in other ways. Most notably, devolution – one of the more popular aspects of the new Constitution – appears to have increased the willingness of opposition supporters to accept the results. Although it is not yet clear how well the process of decentralisation is actually being managed, the promise of self-government helped to reduce the stakes of the election. In 2007, ODM supporters had no consolation when they lost the elections – from the announcement of Mr Odinga’s defeat until the power sharing deal was signed, they had no stake in the political system and no reason to give it their support.

In 2013, things were different: many of those who lost nationally won locally. Significantly,  the parties of the Jubilee Alliance generally won very few seats in any of the areas with a significant Cord support base – the former Coast, Nyanza, Western, and Eastern provinces. Mr Odinga’s ODM won 16 governorships, eight more than Mr Kenyatta’s TNA, and captured the governorship in Nairobi – the most important sub-national position. This meant that although Mr Odinga’s supporters in these areas lost nationally, they were able to celebrate locally because they are now largely governed by people of their own ethnic community and political persuasion. In this way, the new county governments suggested that not all of the elections had been rigged, which in turn eroded popular support for mass protests.

Taken together, the alliance of the Kalenjin and Kikuyu communities within the Jubilee Alliance, the emergence of a peace narrative that undermined the legitimacy of mass protest, the introduction of more political institutions following constitutional reform, and the moves to devolve power way from Nairobi, combined to make a peaceful election possible.

But what are the consequences of peace? Although the desire to avoid a replay of 2007 was understandable, the legacies of the elections are not all positive. To start with, peace in the Rift Valley is tentative and depends on the continued success of the Jubilee Alliance. There has been widespread speculation about whether the ICC proceedings – and more specifically the collapse of the Kenyatta case while the Ruto trial continues – will undermine the stability of the coalition. I suspect that the Alliance will prove to be more stable than some of the sceptics have predicted, because Mr Kenyatta cannot effectively govern without the support of the MPs, senators and governors that are loyal to Mr Ruto. But whatever it happens between now and the next election, the Alliance will face a major crisis down the line.

Even if Jubilee retains power in 2017, constitutional term limits will prevent Mr Kenyatta from contesting the subsequent elections, which is when Mr Ruto will demand that his Alliance partners support his presidential bid. If Mr Ruto feels that his loyalty has not been reciprocated it will be the end of the Jubilee Alliance, and the likelihood of political violence will increase dramatically. Kenya’s peace thus remains a fragile one.

The legacy of the peace narrative is also problematic. Peace is of great importance, but so is democracy and the right to protest. Turning a blind eye to democratic backsliding in the name of ‘not rocking the boat’ may contribute to short-term stability, but it has worrying long-term consequences for democracy and thus sows the seeds for future violence and instability. As John Githongo has written, the ‘tyranny of peace messaging … led many to feel Kenya slaughtered justice at the altar of a temporary and deeply uneasy apparent calm’.

In the wake of the elections we have seen legislation that has sought to undermine the position of the media and NGOs. Jubilee has also turned its ire on ordinary Kenyans, reviving the rhetoric of the election in an attempt to delegitimise popular protest against its own questionable performance. Once again, the familiar tropes of the peace narrative and ‘anti-colonialism’ are being used to constrain freedom of speech; it is almost as if Robert Mugabe has taken up residence in Nairobi as the government’s political adviser.

The failure of Kenya’s political institutions to deliver has also left a problematic legacy. Cord supporters who campaigned hard for constitutional reform are now questioning whether it was worth the effort. The Supreme Court has yet to rebuild its reputation in the eyes of many Kenyans, and some key aspects of the Constitution have still not been implemented. This is deeply worrying, because it suggests that come the next election the opposition will once again go into polling day expecting the process to be flawed. It was precisely this sort of pervasive mistrust that laid the foundations for the Kenya crisis of 2008.

Much as in 2012, then, Kenya finds itself at a crossroads and it is not easy to predict what will happen next. For all of the limitations of Kenya’s young democracy, the country may be undergoing a gradual process of democratic consolidation. Although incumbents have constantly sought to block reform, Kenya has made remarkable progress over the last 20 years. President Moi may have implemented the most minimal reforms he could get away with, rigging himself back into State House in 1992 and 1997, but over time his decision to lift the ban on opposition parties changed the face of Kenyan politics.

Over five successive elections, Kenyan voters and opposition parties have converted political openings into political change. Moreover, it is important to keep in mind that although terrible, the violence of 2007 did not terminate the process of gradual reform. Rather, it created the conditions under which Kibaki and Odinga – and the vast majority of Kenyans – could agree on the 2010 constitution, a landmark in Kenya’s history. The failings of the electoral system in 2013 notwithstanding, the cumulative effect of these changes should not be underestimated.

From a limited and weak media in 1992, the Kenyan press has become one of the most vibrant on the continent. With the exception of the constraints imposed by the peace narrative, opposition parties have been able to campaign. Moreover, while presidential elections have typically been won by the ‘incumbent’ candidate opposition parties have consistently polled well, and secured around half the seats in the legislative. It is, therefore, clear that progress towards democratic consolidation has been made, if unevenly and with ongoing threats.

We, therefore, end where we began. Kenyan politics continues to be shaped by two processes that have occurred side-by-side since the early 1990s. In one, the manipulation of ethnic identities around election time has increased inter-communal mistrust, exacerbating the prospects of electoral violence. In the other, a gradual process of reform has moved the country a long way from the dark days of Moi. It is now possible to openly criticise the government and to defeat the President’s party in contests for governor, senator and MP across the country.

This article was originally published in the Daily Nation 15th February 2014.

The Daily Nation is the largest newspaper in East Africa with a daily circulation of around 205,000.

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