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Saturday, November 04, 2017

The 55-year Fight For Kenya

Two elections in two months has not settled Kenya’s political crisis. But the impasse is not really about who will sit in State House. It’s a deeper question: it’s about who owns Kenya – its citizens or a historically entrenched political elite.

President, Uhuru Kenyatta, won the second edition easily after his main opponent, Raila Odinga, withdrew from the race citing the inability of the Independent Electoral and Boundaries Commission to carry out a credible poll. In fact, the reason the election was being done afresh was that the Supreme Court had annulled the August 8 version, accusing the IEBC of acting as if the Elections Act and the Constitution did not exist. His refusal to participate in last Thursday’s contest has now precipitated a deep political crisis.

Some have proposed that it is nothing more than a dispute between two of Kenya’s famously gluttonous and power-hungry politicians, each accusing the other of trying to get power through fraudulent means. Others blame the ethnicization of Kenya’s politics and the deep tribal faults within Kenyan society. Still others maintain that the country’s winner-take-all political system, which does not allow those rejected by voters a cushy and safe landing. In all this, the fate of individual politicians and of the country’s constitution takes on huge importance.

And yet all these diagnoses fail to identify the central conflict that lies at the heart of and connects all these issues – and that is the struggle to bend the country’s colonial and extractive state to the whims of a new and progressive constitution.

It is a war that has been silently waged for at least 55 years. In the run up to Independence in 1963, the two main African parties, the Kenya African National Union (KANU) and the Kenya African Democratic Union (KADU) premiered the main themes and power conflicts that were to dominate Kenya’s attempts to deal with the colonial state. According to the late Prof Hastings Okoth-Ogendo, KANU, the more popular of the two, prioritized the transfer of power over reform of the state, while KADU, which had already lost an election to its rival, was more focused in the limitation of that power in the interests of ethnic minorities.

In 1962, at the second Lancaster House constitutional conference, KADU insisted on a constitution that was broadly similar to the one the country was to adopt 48 years later. It established a Bill of Rights, created regional assemblies and government in an effort to devolve power from the center. KANU, on the other hand, reluctantly acquiesced, reasoning that when the party inevitably won power through the ballot box, it would be free to change the constitution.

And that’s what indeed happened. In less than a decade after independence, the constitution would be so mangled through amendments that in 1969, it was officially recognized as a different constitution.

Writing in 1992, current Attorney General, Prof Githu Muigai, explains:

“The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimization. When the Independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded.”

In short, under KANU, the colonial state and its logic of extraction of resources from the many to enrich the few -initially British colonials, but now a similarly tiny African political elite -prevailed and undid the constitution. What followed was an “eating” binge as politicians and senior officials and their families and friends grabbed whatever they could lay their hands on.

By the late 1980s, the looting and oppression had sparked a reaction from citizen groups, media and churchmen which featured a persistent push for a new constitution, even in the face of violent government crackdowns as well as state-led attempts to co-opt and hollow out their demands. The popular agitation came to fruition in August 2010 when the current constitution was promulgated which essentially was a reset to 1962.

Yet the colonial state did not just fade away. It had to contend with this new challenge and, at least initially, the political elite was happy to pretend to play along for as long as their position at the top was not seriously challenged. The more egregious aspects of the state that the constitution now abolished, were simply renamed and allowed to hide in plain sight: the hated provincial administration rather than being abolished, simply changed titles but was retained intact; the police, though nominally declared to be operationally independent, never actually behaved like they were -they still remained “a citizen containment squad” as the Ransley report had described them.

Though cloaking itself in the cloth of the constitution, the state refused to reform. Under Uhuru Kenyatta, it retained its authoritarian character but with a fresh, likable face. But all through, its violence was never far below the surface as was witnessed in the aftermath of its bungled responses to terrorist attacks such as the on the Westgate Mall in Nairobi in September 2013, when the government scapegoated entire communities to cover up its failures. and, more recently, in the brutal crackdown on people protesting the two elections in which nearly 70 people have died.

On August 8, the elite embarked on what they assumed would be another coronation of their chosen one. Everything was in place, including 180,000 policemen to take care of troublemakers in opposition strongholds as well as a carefully constructed plot and narrative. It wasn’t the first time they were doing this. As Stanley Macharia, proprietor of the largest broadcast media network in the region, told the Kenyan Senate last year, in all five elections held since the return of multiparty competition, in only one -in 2002- had the presidency gone to the person with the most votes.

The Supreme Court annulment of the August election, therefore, came as a real shock to the elite and was the first real attempt to use the 2010 constitution to challenge the power and status of the elite as the ultimate owners of the state. The response was quick and effective: legislative changes to virtually make it impossible for the Court to nullify another election, threats to the judges, and a sham election to sanitize what the Supreme Court had impugned. Soon Uhuru Kenyatta’s supporters were extolling the benefits of a “benevolent dictator”.

It is within the context of this historically frustrated effort to bring the colonial state to heel that we must locate the current political impasse. It must not be made out to be about the Luo vs the Kikuyu (although there is an aspect of that) or Kenyatta vs Raila (although that matters too) or election winners vs election losers (a much less convincing argument).

The real question is whether the wenyenchi (the owners of the nations) will give up their control of the state to the wananchi (the people of the nation); whether they will allow the constitution to dismantle and remake the colonial state into one that works for all Kenyans.

History does not offer much encouragement. However, as the low turnout (even the highest estimates come in at under 40%) for the repeat election suggested, there is broad agreement across the country on the need for elections to adhere to constitutional standards of being free, fair, simple, verifiable, transparent and credible. One poll showed that even in Kenyatta’s heartland, more than half of the people were happy with the Supreme Court’s decision to annul the poll.

The politicians are out of touch with the people. Their brinksmanship demonstrates that they are yet to learn the lessons of the 60s and that they cannot be trusted not to repeat the same mistakes their fathers’ made.

Which leads us to the question of what should happen now. There is undoubtedly a need to resolve the immediate political crisis and generate consensus on how to address the longer term issues. Talks, as have been proposed, between Kenyatta and Odinga would be critical to this but, as noted above, cannot be left solely to them. the involvement of other sectors of society such as civil society, the media and the religious establishment both as mediators and participants in their own right would help lay a framework that is not solely dictated by the interests of the two main protagonists.

The goal should be to establish a roadmap to a resolution of the crisis including an agreed forum for a comprehensive national dialogue which would address not just the immediate manifestations of the crisis but, more importantly, deal with the unfinished business of reforming the colonial state and addressing its legacy of abuse, marginalisation and impoverishment.

Kenya faces much more than an electoral crisis. For over half a century, the contestation over who controls the state has been allowed to take precedence over the need to reform that state so it works for not just a few, but for all its citizens. That must now change.

Friday, September 01, 2017

Why Kenyans Must Keep Their Feet Firmly On The Ground

Kenyans are given to bouts of euphoria. Once ranked as the most optimistic people in the world, it is a society almost congenitally programmed to look on the bright side of life and to seek out silver linings on even the darkest of clouds. It is famously the land of “Hakuna Matata”, which for anyone who’s watched Disney’s The Lion King can recite, is “a problem-free philosophy”.

Our irrational exuberance is once again bubbling up to surface in the wake of the Supreme Court verdict that annulled President Uhuru Kenyatta’s barely three-week old re-election. In a sense, it is understandable. It has been a tense time, filled with trepidation, after yet another rapturous voting day, invested with all the hope for better days the country could muster. This is despite the knowledge that although the country has held regular elections throughout its 50 years of independence, they have never resulted in truly meaningful, lasting change.

Even the 2002 election – perhaps the most ecstatic of them all, given it was bringing the curtain down on the 24-year despotic and kleptocratic reign of Daniel arap Moi – only inaugurated Mwai Kibaki’s turn to eat. Pretty soon, the Kenyans who had been going around effecting citizen arrests on corrupt cops in the belief all had changed, were treated to a rude shock when reports of grand corruption at the highest level began to surface with increasing regularity. So much so, that the President’s own anti-graft czar had to flee the country. Corrupt ministers are "eating like gluttons" and "vomiting on the shoes" of donors, declared the British High Commissioner, Edward Clay.

Anyway, back to the Supreme Court ruling. Similarly to the 2002 poll, the election that the court has just voided was manifestly full of irregularities. However, 15 years ago it did not much matter. The vote against Moi’s handpicked successor – ironically the current incumbent – was so overwhelming that the regime had little choice other than to concede. In any case, electoral reform at the time had mainly consisted of a “gentleman’s agreement” that allowed the opposition to nominate some of the members of the electoral commission.

The integrity of the process today matters much more than it did a decade and a half ago. Elections are much more closely fought and the electoral infrastructure is much more elaborate. Methods for stealing them have also become more intricate and difficult to detect.

After a dispute over the 2007 presidential election led to violence that killed over 1300 people and displaced hundreds of thousands more, a commission led by South African judge Johann Kriegler proposed a raft of reforms to the electoral system, including the electronic transmission of results from polling stations.

Five years later, despite a new constitution, few of those reforms had actually been implemented. During the election, a hastily and dubiously procured system for biometrically identifying voters and electronically transmitting results failed (or was made to fail) across the country. Further, there were allegations that the election had been hacked. If that sounds familiar, it’s because pretty much the same thing happened this year.

However, by the time Kenyans went to the polls nearly a month ago, laws governing the electoral process had been passed and largely clarified by the courts. On voting day, the biometric systems seemed to have worked but not the electronic transmission. As counting proceeded, figures started scrolling across our TV screens courtesy of the Independent Electoral and Boundaries Commission (IEBC) headquarters. Figures seemed to show a constant and consistent lead by President Kenyatta over his closest rival, Raila Odinga. 

The figures, which the IEBC would disown as mere "statistics" when their validity was questioned, were the first sign that something had gone seriously wrong. Thereafter, despite the verdicts of international observers, led by former US Secretary of State, John Kerry, when the IEBC could not produce the scanned forms on which the results were based, it became clear that the election was far from credible.

The appeal to the Supreme Court in 2013 had been dismissed in its entirety, with the court establishing an impossibly high standard of proof which seemed to ensure a presidential election would never be reversed. Four of the six judges who issued the widely-rubbished, unanimous judgment, are still on the court. Perhaps this is why the opposition initially said that although it wasn't accepting the results, it would not be taking its case to the court. Following a change of heart, they did file a petition, which to everyone's surprise, was upheld.

The annulment is a very big deal and definitely worth celebrating. Along with overturning an injustice and reinforcing Kenya’s democratic credentials, by cementing the Supreme Court’s credibility, it has made future 2008-type post-presidential-poll violence much less likely. For once, Kenya the state has stood up for Kenyans, and that is huge. But we should be careful not to get carried away.

First, there were problems with the court declaration itself. One of the allegations that had been put forward by the petitioners was that the incumbent had abused his office by using public resources and officials to campaign. The judges seemed to gloss over this when they found no evidence of wrongdoing despite glaring proof.

Further, the pronouncements of Kenya’s accession to the league of mature democracies were not only premature when the now disgraced Chair of the IEBC made them as he declared Kenyatta the president-elect; they are premature today. The judgement is a giant leap forward but one decision does not a democracy make. It just creates possibilities for a better, more accountable electoral system. However, Kenyans have a tendency to want to persist in these giddy moments of possibility rather than to do the hard work of translating them into reality.  Sadly, as we have seen with the 2003 election of Kibaki, can, if not seized, also inaugurate a much less desirable state of affairs.
  
Of immediate concern is the potential for a backlash from an Executive stung by what it considers to be a judicial uprising. "If you rattle a snake, you must be prepared to be bitten by it," the late authoritarian Cabinet Minister, John Michuki, warned us, after the government raided the country’s second-largest media group in 2006. Kenyans cannot afford to be complacent. President Kenyatta has just been rattled and he is threatening to bite. Already, he has taken to calling the Supreme Court judges "wakora" or bandits and his lawyer has described the ruling as a judicial coup. "[Chief Justice David] Maraga and his thugs have decided to cancel the election. Now I am no longer the president-elect. I am the serving president... Maraga should know that he is now dealing with the serving president," he reportedly threatened on Friday. “We have a problem with our judiciary but regardless we respect [their decision]. But we shall revisit,” he declared ominously a day later.

Whether it’s Kenyatta or Odinga who gets elected in two-months’ time, the independent judiciary will probably itself be the target of an Executive branch used to getting its way. However, with his Jubilee party in control of both houses of Parliament, Kenyatta will pose a particularly grave threat. History has taught us that great gains can be quickly reversed. Kenya still has a long way to go before it can get rid of its entrenched culture of impunity and become a society that truly caters for the needs of all its people, not the desires of a few at the very top.

Finally, another election has to be held within two months. Kenya is only the third country in the world, after the Ukraine and Austria, to have the courts annul a presidential election. In the other two repeat elections, the incumbent won. Now, that itself is not a problem. The Supreme Court has rightly said, who wins matters less than how that win is secured. There is little time to make significant changes to the electoral infrastructure which means there are few guarantees that the same illegalities and irregularities that led to the annulment won't crop up again. Ensuring that Kenya does not end up where it started will require vigilance from all players, including any egg-faced internationals returning to observe and report on the election. The media should set up independent tallying centres and be prepared to call the election, rather than simply regurgitate the numbers and "statistics" coming from the IEBC.

Kenya is not out of the woods yet. The passions and terror that have been on display over the last few months have not gone away. They continue to simmer away just below the surface. While the Supreme Court has reduced the risk of a violent explosion, it has not completely eliminated it. That can only be accomplished through honestly addressing the the problems of our past and finishing the task of implementing the constitution. 

The judgement shows what that constitution makes possible but it would be grossly unfair to heap the burden of actuating it on the shoulders of seven judges. Kenyans must demand that the other independent state agencies, from the National Police Service to the Office of the Director of Public Prosecutions, start to behave and conduct themselves in the manner envisaged by the constitution, not as lackeys of the Executive. Kenyans must realize that the people are the ultimate custodians of the supreme law and even as they celebrate, they should be rolling up their sleeves.


Thursday, August 31, 2017

Why Kenyan Supreme Court Judges Should Avoid Sausages

“Laws are like sausages, it is better not to see them being made” is a quip regularly and mistakenly attributed to Otto von Bismarck, the famous Prussian statesman and architect of German unification. However, the Iron Chancellor, who died in 1898, was not associated with the quote until the 1930s. In fact it was the American lawyer-poet, John Godfrey Saxe, otherwise famous for publicizing the ancient Indian parable about Blind Men of Hindustan and The Elephant, who more inelegantly said: "Laws, like sausages, cease to inspire respect in proportion as we know how they are made."

As I write this, oral judgements have been completed at the Supreme Court hearing of Raila Odinga and Kalonzo Musyoka’s petition against the re-election of President Uhuru Kenyatta. It has been 4 days of riveting presentation, argument and often, comedy, as one side prosecuted its case and the other tried to rubbish it. The main bone of contention appears to be about means and ends: whether the way the election was carried out matters or we should only concern ourselves with whether the results declared matched how the electors had voted.

In a sense, it could be said that President Kenyatta and the Independent Electoral and Boundaries Commission (IEBC) appear to prefer the Bismarckian formulation that it is better to focus on the final product and not peer too closely at the inner workings of the electoral system. After all, they argue, the whole point of an election is to express the sovereign will of the voters. So, a simple check of the forms prepared at the polling stations (where all the voting and counting happened) should suffice.

The petitioners on the other hand, are more in line with Saxe. They say that the more we actually learn about how the election was run, the less reason we will have to respect the result. They point out numerous irregularities and outright illegalities in the conduct of the poll which they hold undermine any confidence, not only in the veracity of the announced result, but also in the authenticity of whatever documents the IEBC might produce to support it.

I have been somewhat mystified by the way in which these arguments were framed. Throughout, voters have been portrayed as passive actors upon whom elections are visited. The lawyers in the room, including the Attorney-General, behaved very like the blind men of Hindustan trying to define the elephant that is the people’s sovereignty. There seemed little recognition that sovereignty does not start and end with the casting of ballots and determining of who becomes President. Citizens do not become sovereign when they transmogrify into voters. They are always sovereign in a democracy.

Further, as I have written before, voting in an election is not – as one of the lawyers unfortunately declared – the foundation of democracy. How much ordinary citizens can contribute to everyday political decision-making and their ability to hold public officials to account are the true measures of democracy. Thus, if elections are about the sovereignty of the voter, as another averred, then constitutions are about the citizen. And the entire corpus of law, the foundation of which should be the constitution and citizen participation in governance, is an exercise in sovereignty.

Protecting the expression of sovereignty therefore entails more than singularly ensuring the correct result was announced. It also means ensuring that the process prescribed by the law was adhered to. It is not a choice between respecting one or the other.

Now, after dominating TV screens for nearly a week, the process of adjudicating the petition moves into the shadows as the judges retire to consider their verdict. Four years ago, after a similar week of TV drama, they reappeared with a sausage of a judgement, with only a short summary of the decisions delivered in open court but eventually revealed to consist of a messy and unhealthy cocktail of poorly-reasoned arguments.

It is proper that the judges should concern themselves with burdens and standards of proof and with the attendant requirements of who should prove what to which degree of satisfaction. In exercising its delegated sovereignty, the court is subject to the constraints of evidence. What is true and what can be proven not necessarily being the same thing, courts only concern themselves with the latter.

The upshot of this is that the court cannot tell us whether the election was stolen, just whether Raila and Kalonzo can prove it. That means, regardless of what the courts rule, it will still be up to each citizen to decide for himself or herself whether they believe the election was credible and whether the IEBC and other arms of government have properly carried out the mandates given to them.


Still, this does not mean the Supreme Court’s judgement is irrelevant or unimportant. It will decide the legal validity, if not exactly the legitimacy, of the poll and the government it births. It is hoped that the judges will each prepare individual judgements, clearly detailing the reasons for the conclusions they have come to and that each will get to read his or her judgement in open court. The truth is, elections and court judgments should be nothing like sausages. The more one knows how they were made, the more they should command respect and be savored.