New laws helped numb the pain of electoral defeat

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Nic CheesemanIn his regular column for the Daily Nation, our Co-editor Nic Cheeseman looks at the impact that the new constitution has had upon the functioning of the political system, and on the shaping of political culture within Kenya. 

Just weeks after the General Election, commentators are already speculating about what the result will mean for the implementation of the Constitution. Will William Ruto follow up on his public commitment to majimboism during his time in Kanu and the ODM by promoting faster and deeper decentralisation?

The Deputy President’s supporters in the Rift Valley are likely to be disappointed by anything less. Or will President Kenyatta follow in his father’s footsteps, and seek to retain as much central control as possible within the limits of the new dispensation? These questions are important because at present many of the most important parts of the Constitution only exist on paper.

Until politicians breathe life into them, the new political system that Kenyans overwhelmingly voted for in 2010 will only be partially realised. But as we discuss these issues it is important not to lose sight of the fact that the Constitution is already working to enhance the legitimacy and stability of the political system, and that it is doing so in a way that benefits ordinary Kenyans and political leaders of all persuasions.

If you are not convinced, imagine how much harder it would have been to manage the political tensions around the election under the old constitution. In 2007, both sides were desperate not to lose because they understood the overwhelming power and influence vested in the presidency.

The winner-takes-all nature of the political system raised the stakes of political competition to dangerous levels, and in doing so increased the likelihood of civil unrest.

Although the new Constitution does not include any power-sharing mechanisms to safeguard opposition interests at the Cabinet level, by introducing 47 governors and senators it has created the possibility that those who lose nationally will win locally.

Despite losing the presidency, ODM elected twice as many governors as the TNA (16 to 8), the same number of senators (both 11), and six more MPs (78 to 72).

While the strong performance of the URP gives the Jubilee alliance a lead in the Lower House of Parliament (roughly 47 per cent), Mr Odinga’s coalition performed better at the County level, securing 47 per cent of governors, seven per cent more than Jubilee.

As a result, opposition supporters in many areas will be governed – at the county level at least – by leaders of their own choosing.

By strengthening the representation of these communities within the political system and showing that opposition candidates can win at least some of the time, the county level elections gave ODM voters and leaders a strong reason to support, rather than reject, the political system.

The election of the ODM’s Evans Kidero as the Nairobi Governor illustrates this point well.

After hearing the result, my Jubilee supporting friends argued that the elections could not all have been rigged if the opposition had been able to capture such an important and highly contested seat.

For their part, the disappointment of my ODM voting friends at losing the presidency was alleviated – if only partially – by the victory of one of their own in their city.

Kidero’s victory, and others like it, forced both sets of friends to admit that there had been winners and losers on both sides. This was important, because it reduced the intensity of the grievance felt by Mr Odinga’s supporters, and hence their willingness to protest the result. Such conversations and sentiments would have been unthinkable under the old constitution.

The creation of the Independent Electoral and Boundaries Commission and the Supreme Court also went a long way toward ensuring a peaceful campaign. Many of the commission’s processes may have failed, but confidence in the new body never fell to the lows witnessed in 2007/8, when its predecessor, the Electoral Commission of Kenya, lost all credibility.

Rumours of political bias within the Independent Electoral and Boundaries Commission may have circulated in Nairobi, but the decision to include rejected votes in the calculation of the “50%+1” threshold required to win the presidency – a decision that at one point looked like it would deny Uhuru Kenyatta a first round victory – suggested that the commission was willing to take decisions that would favour Mr Odinga.

As a result, Kenyans and international observers were far more willing than they would have been in 2007 to interpret system failures – such as the poor performance of the biometric voter registration kits and the collapse of the electronic transmission of results – as innocent mistakes rather than evidence of systematic electoral manipulation.

The introduction of a Supreme Court with the power to settle election disputes also boosted confidence in the electoral process.

In 2007 the politicisation of the Judiciary was one of the main reasons that ODM took their protest to the streets. Feeling cheated that the election had gone his way, Mr Odinga rejected the idea of taking his complaints to what he called “Kibaki’s courts”.

But like the electoral commission, public confidence in the Judiciary is as a result of the changes introduced in the new Constitution and the willingness of Chief Justice Willy Mutunga and his colleagues to take decisions that were unpopular with their political paymasters.

Given the improved reputation of the electoral commission and the Judiciary, Mr Odinga would have looked irresponsible if he had gone straight to the streets, and would have lost a lot of sympathy both inside and outside of the country. He therefore had little choice but to take his case to the courts.

And having pledged to respect the outcome of the process, he would have hurt his own reputation if he had called for mass protests after his petition was rejected. In this way, the emergence of a more independent and robust Judiciary encouraged the opposition to follow the official complaints procedure, and ultimately to accept the result of the election.

Seen in this way, the new Constitution contributed to the legitimacy and credibility of the elections at every stage of the process. As a result, the political system was able to manage a series of serious mishaps that may well have triggered civil conflict under the old constitution. Political leaders from all parties therefore have something to gain by implementing and enforcing the Constitution.

Promoting the rules of the game will protect the interests of the opposition and strengthen their position within the Legislature, enabling them to hold the President to account.

At the same time, by enhancing the legitimacy of the government and its decisions, an effective constitution will make it easier for President Kenyatta to build peace and political stability, which is critical to his ability to govern and to realise his own ambitions.

Of course, many challenges remain. The new counties will be logistically difficult and financially costly to establish, and there is a danger that decentralisation will make it more difficult to coordinate national policy in important areas such as health and education.

The processes of the electoral commision will need to be reviewed and if technology is to be used in future elections better planning will be required to improve its performance and test the equipment ahead of time.

The Judiciary remains under capacity, and some of the lower ranks have yet to be fully vetted. But these hurdles are not insurmountable and the role played by the new political framework in delivering a peaceful election demonstrates that constitutional implementation should be a priority for all leaders, whether they be in government or opposition.

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