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An Election Delay Can Help Avert Kenya’s Crisis
An Election Delay Can Help Avert Kenya’s Crisis
Kenya's President Uhuru Kenyatta (L) greets opposition leader Raila Odinga of the National Super Alliance (NASA) coalition after addressing a news conference at the Harambee house office in Nairobi, Kenya, on March 9, 2018. REUTERS/Thomas Mukoya
Briefing 136 / Africa

After Kenya’s Leaders Reconcile, a Tough Path Ahead

The meeting between President Uhuru Kenyatta and opposition leader Raila Odinga was an important step toward ending the protracted crisis over last year’s disputed election. To build on the progress, consensus is required on concrete steps that can help safeguard against future polarisation and violence.​

I. Overview

The meeting on 9 March 2018 between Kenya’s President Uhuru Kenyatta and opposition leader Raila Odinga was as unanticipated as it is significant. In their joint statement issued after the talks, they promised to address the “deterioration of relationships between communities” and “aggressive antagonism and competition” that has blighted repeated electoral cycles in Kenya. This pledge is welcome: the warm words between the two men should help end the protracted crisis provoked by last year’s disputed presidential election, while raising prospects for some form of national dialogue and reforms to avert a repeat. But now comes the hard part.

The two leaders, together with other politicians, business leaders, clerics and diplomats, must now ensure the next phase is a consensual, inclusive process yielding meaningful change. Priorities include an investigation into police killings and police reform; a reopening to civil society and the media; and political reforms that aim to reverse Kenya’s winner-takes-all politics, perhaps including provisions that widen representation in the executive. While changes to rules are important, in themselves they will not temper the country’s zero-sum ethnic politics without a broader shift in the behaviour of Kenyan leaders.

A. Historical Feud, Contested Polls

The presidential election, held on 8 August 2017, pitted the incumbent Kenyatta against veteran opposition leader Odinga. Both are scions of prominent political families – Kenyatta senior was the first president and the elder Odinga was vice president at independence. The pair fell out in the 1960s and the two families have dominated political competition for decades.

Ahead of the 2017 election, the younger Kenyatta and Odinga headed the tickets of alliances cobbled together largely along ethnic lines. The election commission pronounced Kenyatta the victor, but Odinga rejected the results. The Supreme Court annulled the vote on 1 September, finding widespread irregularities and illegalities in the tallying, tabulation and transmission of results, and ordered a fresh election. Odinga boycotted these polls, which were held on 26 October, citing insufficient reform of the electoral authorities. Kenyatta won with 98 per cent of the vote (although turnout in opposition areas was extremely low) and was declared president.

After that second election, Kenyatta and Odinga both took escalatory steps that deepened social divisions and triggered violence, leaving dozens dead, mainly at the hands of security forces. Odinga defied pressure from allies and foreign diplomats, and staged a mock inauguration on 30 January at which he was declared “people’s president”. This show not only compounded the political crisis but also sowed discord within Odinga’s own National Super Alliance. Kenyatta initially drew praise for pulling the security forces away from the venue of the Odinga ceremony to avoid a confrontation with opposition supporters. But he subsequently ordered several private TV stations off the air for days (and ignored a court order declaring this action illegal). He has led a crackdown on civil society and dismissed calls from the opposition, religious leaders and diplomats for a national dialogue.

After that second election, Kenyatta and Odinga both took escalatory steps that deepened social divisions and triggered violence.

Last week’s talks between the two leaders were thus an important turnaround in a situation that appeared headed toward prolonged stalemate. It seems that back-channel contacts between aides culminated in the surprise one-on-one meeting in Nairobi.

The two leaders would both benefit from reconciliation. Kenyatta’s second-term agenda – focused on growing the economy – would be imperilled if a significant proportion of the electorate continued to question his legitimacy. Reaching out to Odinga, who enjoys particularly strong support in western Kenya and along the coast, is one way to overcome those challenges.

Odinga, too, has much to gain. In recent weeks, key opposition allies seemed to be abandoning him, as they positioned themselves for the 2022 election. The latest move puts Odinga back at the centre of Kenyan politics. Aides say the veteran opposition leader, who has long championed reform and was a supporter of Kenya’s progressive 2010 constitution, seeks to claim a place in history by pushing further change to the winner-takes-all political system.

B. Three Critical Steps

Kenyatta and Odinga have formed a committee of close aides to spearhead the campaign for national unity and propose possible constitutional amendments. To succeed, they need to ensure that any reforms are adopted only through an inclusive dialogue that consults as wide a cross section of the population as feasible. Important allies of both leaders appear to have been excluded from the talks and could seek to undermine reform efforts. Both Kenyatta and Odinga need to rally militant supporters behind the rapprochement to achieve wider buy-in for any prospective deal.

Moreover, a settlement negotiated exclusively by politicians would clearly contravene Article 118 of the Constitution (which demands public consultation before major decisions are made). The committee devising the reforms should host meetings with grassroots and other civil society organisations, as well as clerics and business leaders, to discuss any proposed changes.

Three areas will be vital in shaping reform if Kenya is to avoid further cycles of polarising and destabilising elections:

1. Lowering the stakes. In their joint statement, Kenyatta and Odinga conceded that polarisation and all-or-nothing contests for power have turned elections into “a threat to lives, our economy and our standing as a nation”. Many politicians believe that the narrow structure of the executive, in particular, with only the posts of president and deputy president up for grabs, leaves little room for accommodation of a wider cross section of elites.

Some politicians suggest amending the constitution in favour of a Tanzania-style system to include a prime minister and possibly a deputy prime minister nominated by the parties that won the most parliamentary seats. Pursuant to this structure, both would govern under the supervision of a directly elected president. Such a move, proponents argue, would have several positive implications: broadening the executive, checking presidential power and, crucially, beginning to address the question of “exclusion and, ultimately, animosity” that Kenyatta and Odinga raised in their statement.

Finding ways to spread power around different positions and institutions, and to widen representation in the executive, could lower the high stakes of elections. But such an overhaul, particularly after the exhaustive constitutional reform undertaken less than a decade ago, should not be entered into lightly. It would require a process as consultative and inclusive as that which preceded the adoption of the 2010 constitution. Alternatively, a proposal from the leadership of Kenyatta’s Jubilee Party, which commands a majority in parliament, to create a formal role for the leading opposition figure in presidential elections – with a special budget and specific mandate – might be less controversial and achieved through legislative rather than constitutional change.

Kenya’s political elite and civil society ought to be cautious in assuming that rule changes alone will transform the culture of winner-takes-all ethnic politics and fierce electoral competition. The 2010 constitution in principle strengthened checks and balances and independent institutions, and thus should have achieved those objectives. That these reforms failed to avert last year’s crisis is a testament to the manner in which Kenyan politicians contest power. Political culture – the behaviour of Kenyan leaders, particularly the distribution of resources along ethnic lines – needs to change as much as formal rules of the game.

2. Probe rights violations. Human rights groups found that the police were responsible for by far the largest number of deaths, including of several infants, during protests over the electoral crisis. A judicial commission of inquiry should investigate these killings. It should go beyond identifying culprits – who should face prosecution – and issue binding recommendations, potentially including retraining officers and a review of police codes.

The government also should reinvigorate efforts to reform the police and strengthen civilian oversight, including by empowering the Independent Policing Oversight Authority. Wider police reform, including through implementation of existing constitutional provisions that protect the security forces’ leadership from interference by the executive, remains key to addressing Kenya’s poor human rights record.

3. Civil liberties and media freedom. Kenya has a deserved reputation as one of the continent’s more open societies. Its free-wheeling private media and debate of public issues on social media as well as its robust civil society help promote transparency and accountability. Those freedoms are in danger, both from an intensified government campaign against civil society and from government pressure on private media firms, including threats to selectively withdraw government advertising, a crucial source of revenue. Odinga should use his place at the table to persuade Kenyatta that the country would gain more by maintaining its culture of openness.

C. Conclusion

Kenyatta and Odinga deserve praise for their recent show of statesmanship in agreeing to hold talks to try and end the crisis and help unite the country. Together with civil society, religious groups, business leaders and the diplomatic community, they should now turn to the hard work of ensuring this chance for meaningful change is not wasted.

Nairobi/Brussels, 13 March 2018

Appendix A: Map of Kenya

A Kenyan policeman guards a shipment of presidential election ballots arrived from Dubai ahead of Kenya's October 26th presidential election at the Jomo Kenyatta international airport in Nairobi, Kenya, on 21 October 2017. REUTERS/Baz Ratner
Briefing 132 / Africa

An Election Delay Can Help Avert Kenya’s Crisis

The rerun of Kenya’s presidential elections scheduled on 26 October risks escalating a political crisis, as the main opposition leader has withdrawn and the risk of violence is high. The election commission should seek from the Supreme Court a 30-45 day delay to the vote. Kenya’s political leaders should support such an extension and commit to participate.

  • What’s happening?  On 26 October, Kenya is scheduled to hold repeat presidential elections following the Supreme Court’s annulment of the previous vote held on 8 August. Proceeding in current conditions risks escalating the political crisis.
     
  • Why is the vote contentious?  President Uhuru Kenyatta says he is ready for the vote, while opposition leader Raila Odinga refuses to participate, citing the lack of electoral reform since 8 August. The election commission chairman has said that he cannot deliver a credible election on 26 October.
     
  • Why does it matter?  The risk of clashes between rival supporters or between security forces and protesters seeking to block the vote is high. New violence would be devastating for Kenya, the economic hub of East Africa.
     
  • What should be done? The election commission chairman should petition the Supreme Court for an election postponement of 30 to 45 days, which would permit a delay without violating the constitution. All parties should contest the new vote, accept the outcome or pursue complaints through the courts.

I. Overview

The rerun of Kenya’s presidential elections, scheduled for 26 October, threatens to provoke a serious political crisis. Opposition leader Raila Odinga has declared he will not participate; an Independent Electoral and Boundaries Commission (IEBC) commissioner recently resigned and fled the country; and the IEBC chairman has signalled that he cannot guarantee a credible vote within the expected timeline. The risk of deadly clashes between the two main parties’ supporters, or between security forces and groups seeking to block the vote, is high. Proceeding under current conditions would deepen Kenya’s ethnic cleavages and prolong a stalemate that has already claimed dozens of lives and come at a high economic cost. Kenyan institutions and political leaders should consider a short delay; Odinga in turn should pledge to take part; business elites as well as Kenya’s neighbours and donors should help promote such an outcome.

II. A Contested Electoral Process

Kenya’s Supreme Court 1 September annulled the presidential election held on 8 August. It did not find evidence of widespread fraud or question the outcome – according to official results Kenyatta won 54 per cent to Odinga’s 45 per cent – but found irregularities and illegalities during the IEBC’s results transmission and announcement of tallies. It ordered the electoral body to conduct a new vote within 60 days “in strict conformity with the constitution and applicable election laws”.

As Crisis Group noted shortly after the court decision, the manner in which political leaders have responded to the judgment has hindered preparations for a new poll. Members of Parliament from President Kenyatta’s Jubilee Party have used their majority in the National Assembly to push through contentious electoral reforms. These include provisions that declare that an election cannot be annulled on the basis of a failure to relay or record tallies electronically – key grounds for the Supreme Court’s invalidation of the 8 August ballot. As the European Union (EU) and other observers have indicated, passing such legislation so close to election day runs against global best practice. Parliament endorsed the amendments on 11 October but Kenyatta is yet to sign them into law.

For his part, Raila Odinga responded to a court decision that appeared to vindicate many of his complaints about the election’s administration by drawing up a list of conditions for his participation in a new vote. On 10 October, the IEBC wrote to Odinga saying that it would implement some of his requested changes, including improvements to its IT management and security protocols. The Commission also gave party agents and observers further access to key aspects of the electoral process, including to its IT systems, within the limits permitted by its security protocols. Other demands, it said, such as replacing the service providers for the IT vote management system and using another company to print ballots and returns forms, were not feasible in the time remaining before the vote. That same day, Odinga withdrew from the election. His statement some days later that “no election” would take place on 26 October was interpreted by diplomats, media commentators and the government itself as an implicit threat of violence.

Tensions, already high, have further intensified. Several parliamentarians from Odinga’s coalition, the National Super Alliance (NASA), have been arrested for assaulting election officials and disrupting IEBC training seminars in NASA strongholds. On 20 October, Odinga called on his supporters to end attacks on electoral staff and Jubilee supporters. He also reiterated his intention to boycott the vote and promised to address the nation on the “way forward” on 25 October.

Political disagreements are not the sole impediment to the repeat election. Just as before the 8 August vote, court cases filed by politicians and others and the rulings on those cases may have had a bearing on preparations for the new vote. An 11 October High Court judgment, for example, ruled that all eight candidates in the 8 August vote – not just Kenyatta and Odinga as initially planned – could contest the fresh election. The IEBC has indicated that it has insufficient time before 26 October to reconfigure the electronic results transmission kits to include all candidates.

The IEBC itself is in disarray. Disagreement among commissioners over how to handle the court’s decision and the refusal by some to entertain a postponement were among the reasons cited by IEBC commissioner Roselyn Akombe for her resignation and departure to the U.S. on 18 October. A day later, with public pressure mounting, IEBC chief executive officer Ezra Chiloba, whose departure Odinga has demanded, departed, reportedly on leave. Kenyan media outlets report he will play no role in the repeat election.

III. Delaying the Election Rerun

Kenya has made remarkable progress since the violence after the disputed 2007 elections, notably in the adoption of a new constitution in 2010. But the zero sum calculations of political elites persist. Such calculations are driving Kenya towards a crisis that could imperil both the country’s and the region’s stability. A way forward that can address concerns of both sides and settle the political stalemate sensibly should reflect the following principles:

  • The IEBC chairman should publicly confirm the position he took during an 18 October media conference that holding a credible election on 26 October under current conditions is impossible. He should petition the Supreme Court for a limited extension of 30 to 45 days, which would allow the election to be rescheduled without violating the constitution. Precedent for this exists: the High Court in January 2012 delayed elections by six months, which helped ensure a credible and peaceful vote.
     
  • The Supreme Court should favourably consider such an extension given the IEBC chairman’s own acknowledgment that the commission cannot guarantee a credible vote within the allotted timeline. Because only parliament or the Supreme Court can allow a postponement, and given that parliament would need a minimum of two weeks to debate and pass a bill extending the 60-day window for a new vote, such a call at this point only could come from the court.
     
  • Should it grant a delay, the court ought to state clearly that President Kenyatta would remain in office pending the fresh vote. The constitution is silent on who holds power in the event no election is held within 60 days of the annulment of the previous vote. But insofar as the court, in its 1 September decision, concluded that the president had committed no offence leading up to the 8 August election, he should remain in office until the new balloting occurs. Such a clarification would assuage the concerns of some in his camp who fear the constitutional ambiguity on this point could encourage legal challenges to his position. If the court rejects such a petition, Odinga should accept the decision of a court he praised not so long ago and urge his supporters to abide by the judges’ orders.
     
  • Odinga should participate in a delayed vote without additional conditions. He should renew the welcome public pledge against violence that he made on 20 October. He also should rein in and hold accountable supporters who have attacked election officials, made inflammatory threats to disrupt the election or otherwise broken Kenyan law. He should stress that disputes should be resolved by Kenya’s institutions and not through violence. If Odinga nonetheless decides to boycott a postponed election, he should encourage supporters to stay home rather than disrupt balloting, attack voters or otherwise stoke trouble.
     
  • Both President Kenyatta and Odinga should publicly commit to supporting the IEBC if a new poll date is set and accept the results or take complaints to the courts.
     
  • The Kenyan police chief should issue clear instructions to officers to restrain and arrest – not shoot – demonstrators breaking the law.

In light of the extreme breakdown of trust between both camps and to avert a protracted political crisis, the African Union should help nudge the parties to accept a short delay under the conditions described above to allow the commission to ready itself, and crucially, seek assurances from President Kenyatta and Raila Odinga that they will accept the vote’s outcome.

Many Kenyans are exhausted by the extended election drama, one that already has damaged the economy and further polarised the country. But faced with two bad options – proceeding with a vote despite the boycott of a candidate who won some 45 per cent of votes the last time round; or accepting a limited delay – the latter option is the better one. The IEBC should seek a limited postponement to allow sufficient time to prepare for an election that both main parties contest. Kenya’s political leaders should support such an extension and commit to participate in a new vote.

Nairobi/Brussels, 23 October 2017