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Kenya: Averting an Avoidable Crisis
Kenya: Averting an Avoidable Crisis
Kenya: A Historic Decision, A Tough Road Ahead
Kenya: A Historic Decision, A Tough Road Ahead
Kenya's President Uhuru Kenyatta, his wife and former Prime Minister Raila Odinga arrive at the Forces Memorial Hospital in Nairobi, Kenya, on 22 January 2016. ​REUTERS/Noor Khamis
Statement / Africa

Kenya: Averting an Avoidable Crisis

Kenya’s ongoing electoral standoff could be compounded further if opposition leader Raila Odinga proceeds with a "swearing-in" ceremony that might elicit a tough response from President Kenyatta. To avert the risk of further protests, destruction and bloodshed, all actors should redouble efforts to broker a last-minute deal.

Kenya’s political crisis could come to a head on Tuesday 30 January 2018. Opposition leader Raila Odinga is expected to stage a swearing-in ceremony as the “people’s president” after two contentious elections in 2017. President Uhuru Kenyatta – who was declared victor of those elections – is reportedly readying a tough response, including the arrest of opposition leaders. This could provoke protests, further police crackdowns and much avoidable destruction and bloodshed, while deepening already dangerous levels of polarisation. Time is running short, but both sides should urgently show restraint: Odinga should call off the ceremony; President Kenyatta should agree to an audit of Kenya’s electoral authorities. Kenyan leaders also should consider some form of national convention to discuss reforms to lower the stakes of political competition.

Last year’s presidential election, held on 8 August, pitted incumbent President Kenyatta against veteran opposition leader Odinga. The electoral commission announced a Kenyatta win, with 54.27 per cent of the vote. Odinga challenged the validity of the vote at the Supreme Court. In a historic decision, the judges annulled the election. Their ruling did not show evidence of mass fraud or question the outcome of the election, but found widespread irregularities and illegalities in the tallying, tabulation and transmission of results. The court ordered a new vote “in strict conformity with the constitution and applicable election laws”. This decision was welcomed by many as a healthy – and, in Africa, unprecedented – sign of judicial independence.  

In its aftermath, however, both Kenyatta and Odinga responded with measures that deepened the crisis and widened societal division. Kenyatta, who would have gained from supporting a rerun that could have given him a clearer mandate, instead lashed out at the judges. His allies in parliament passed legislation curtailing the role of courts in future elections, while state security forces killed dozens of protesting opposition supporters. In turn, Odinga insisted, without offering compelling evidence, that he had won the 8 August election. He issued a raft of conditions – most of which were reasonable but many unrealistic in the period before the repeat ballot – for his participation. Some two weeks before the repeat election, he withdrew, citing inadequate electoral reform. Without the main opposition leader, the 26 October vote became in effect a one-man show: Kenyatta garnered 98 per cent of the vote, but with a turnout of only 39 per cent, down from 77 per cent in the first round.

The oath-taking might in principle satisfy core supporters but in practice would achieve little in terms of advancing their interests.

Since then, the standoff has only worsened. Kenyatta has rejected all efforts by religious leaders, civil society, the business community and diplomats to persuade him to engage his rival. Odinga continues to demand fresh elections and, given Kenyatta’s rejection of talks, repeatedly threatened to organise his own swearing-in ceremony and declare himself the “people’s president”. Having postponed several such ceremonies over past months, he has now set the date for 30 January. Kenyatta’s naming, on 26 January, of his full cabinet – appointing only ruling party supporters, in essence closing the door to any form of power-sharing – has foreclosed one option for defusing tensions. This has arguably further spurred the opposition to proceed with the 30 January ceremony, which it plans to hold in Uhuru Park in downtown Nairobi. Authorities say that venue is off limits, setting the stage for possible clashes between security forces and Odinga supporters arriving in the capital from opposition strongholds or informal settlements around the capital.

Pulling back from the brink

Odinga and Kenyatta are playing a high-stakes game of brinkmanship. Given deep social polarisation and a history of violent clashes between protesters and police, the two leaders’ actions could result in significant bloodshed. They need to pull back. Donors, civil society and business leaders should press both sides to accept some form of compromise to avert a dangerous escalation on 30 January. Western diplomats in particular, who continue to enjoy access to and influence with both men, should redouble efforts to broker a last-minute deal.

Such a deal would involve, first, Odinga calling off tomorrow’s ceremony. The oath-taking might in principle satisfy core supporters but in practice would achieve little in terms of advancing their interests. In return, Kenyatta should initiate talks with the opposition and accept an audit of the electoral system. Thus far, the ruling party portrays such an audit as unwarranted and Odinga’s demand for reform as a sign he cannot accept defeat. But a credible voting system is critical for Kenya’s democracy. While election officials operated in a tough environment, under relentless attack from politicians, the fact is that they failed to gain the trust of much of the electorate, which viewed them as both ineffective and partisan. An independent, time-bound audit would study the electoral commission’s work and develop recommendations for improving future elections.

Donors, civil society and business leaders should press both sides to accept some form of compromise to avert a dangerous escalation on 30 January.

If efforts to strike such a deal are unsuccessful, and the parallel oath-taking goes ahead, President Kenyatta should order the police to exercise restraint and avoid lethal force against protesters. He should also refrain from a crackdown on the opposition, which would only stir protests and further damage an economy struggling to recover from the crisis around last year’s elections. Kenya is routinely named as one of Africa’ most attractive destinations for foreign investment. But repeated clashes on the streets, particularly if they risk further instability, will do little to attract such investment and the badly needed jobs it creates. Politicians from all sides should refrain from inciting violence.

Lowering the political temperature

While the current crisis was triggered by the disputed 8 August vote, its roots run deeper. Since independence, successive Kenyan leaders have entrenched a system of ethnic divide-and-rule, inherited from British colonial administrators, and used an all-powerful and largely unaccountable presidency to reward ethnic allies. Notwithstanding reforms prompted by the violent crisis after the 2007 election, which resulted in a new constitution in 2010 that devolved power, established new checks on executive authority and entrenched judicial independence, Kenyan presidential elections remain winner-takes-all battles for power and control over state largesse. They involve fraught struggles between ethnic coalitions rather than contests over competing policy agendas or political visions for the country.

Ideally, a last-minute deal along the lines described above could create space for further steps to cool the political temperature and seek ways to improve the nature of political competition in future elections. Parliament, in which Kenyatta’s ruling party and its allies holds a plurality of seats with 193 out of 349 seats, should consider the creation of a position of official opposition leader, with a budget and perks. This would offer an olive branch to Odinga, reflect the support he commands (according to the electoral commission’s results he won some 45 per cent of votes in August) and help dial down tensions. It also would be a step toward greater inclusivity. Indeed, such a measure should be considered even if Odinga’s ceremony goes ahead.

Kenya’s leaders should also consider some form of national convention to review ways to reverse the zero-sum nature of elections. Power-sharing, which was used to resolve the 2007 crisis, appears no longer to be an option, since Kenyatta has named his cabinet. Both camps, however, might be open to talks on reform that could help end the cycle of election-driven political crises. These could consider farther-reaching reforms than those in the 2010 constitution, perhaps even examining the presidential system itself to widen representation in the executive. Such reform would likely be unpalatable so soon after a presidential election, but might be considered ahead of the next vote, scheduled in 2022. Moderates like respected former chief justice Willy Mutunga have called for such a convention to discuss fundamental structural reforms that might avert similar crises in future.

Kenya is one of Africa’s better established democracies and the economic and transport hub of East Africa. But its image and position are tarnished by repeated election crises. The 2010 constitution goes a long way toward improving Kenya’s political system and is justifiably a source of pride for the country. But last year’s protracted election crisis suggests further reforms are necessary. The country’s leaders – and Kenyatta and Odinga in particular – should move away from their confrontational positions and instead seek a path toward greater stability and prosperity.

Judges sit in court as President Uhuru Kenyatta's election win was declared invalid in Nairobi, Kenya, on 1 September 2017 REUTERS/Baz Ratner
Statement / Africa

Kenya: A Historic Decision, A Tough Road Ahead

Kenya’s Supreme Court decision to annul the 8 August presidential election is bold and historic, but the path ahead will be fraught. A successful rerun within 60 days will need compromise on a better electoral commission, more accountable policing and more effective management of the high-stakes vote.

The 1 September decision by Kenya’s Supreme Court to annul the results of the 8 August presidential election and order a fresh vote was at once unexpected, historic, bold and – by African and almost any other standard – unprecedented. The judgment compels many – Kenya’s political leaders, of course, but also members of the international community – to engage in some introspection. Most urgently, it requires both local and international actors to take urgent steps to ensure that the integrity of the forthcoming election is protected and that both the period leading up to the vote and its aftermath are peaceful.

By a 4-2 majority, the court found that the electoral commission had failed to comply with the “dictates of the constitution and the applicable principles” in conducting the poll, rendering the elections “invalid, null and void”. The incumbent, President Uhuru Kenyatta, whom the Independent Electoral and Boundaries Commission had declared the winner, will now have to take part in a new election to be held within 60 days. In the next three weeks, Supreme Court judges will issue a full judgment outlining the reasons behind their decision.

[President Kenyatta] blamed the judges for attempting to “overturn the will of the people”, and subsequently asserted that the country had a problem with the judiciary that ought to be “fixed”.

Unsurprisingly, strongholds of opposition leader Raila Odinga in Nairobi, Western Kenya and in the port city of Mombasa celebrated the decision. Odinga himself welcomed the judgment, calling it “a historic day for the people of Kenya, and by extension the people of Africa”. Initially, President Kenyatta struck a conciliatory tone, coupling disagreement with the decision alongside a commitment to respect it. That shifted over time, however. At a rally following the court’s decision, he blamed the judges for attempting to “overturn the will of the people”, and subsequently asserted that the country had a problem with the judiciary that ought to be “fixed”.

Kenyatta’s more ominous tone is but one of the many challenges ahead as Kenyans embark on the perilous task of delivering a relatively smooth poll within two months.

Improving election supervision

At the centre of the looming battle, and by far the trickiest and most divisive issue, is the fate of the electoral body, the Independent Electoral and Boundaries Commission, (IEBC), which was criticised by the judges for committing “irregularities and illegalities” in running the 8 August election. Odinga’s National Super Alliance (NASA) coalition is demanding wholesale changes in the commission’s secretariat and the resignation of six officials, including Ezra Chiloba, the Commission’s chief executive officer. Conversely, Kenyatta’s camp has signalled it would resist any such change. On 2 September, Deputy President William Ruto ruled out altering the IEBC’s composition, accusing the opposition of not being ready to take part in the rerun.

Reaching an acceptable resolution will require compromise on both sides, not belligerent rhetoric.

That there were problems with the IEBC systems seems beyond dispute, as Crisis Group warned last March and as the Supreme Court found. Some change therefore will be needed if confidence in the electoral process is to be restored. But reaching an acceptable resolution will require compromise on both sides, not belligerent rhetoric. The opposition and government should immediately begin talks on this matter and seek a pragmatic solution that can be implemented in the tight statutory timelines. Odinga has offered a possible way forward: to get members of parliament to work in a bipartisan manner and agree on the appointment of officials who will conduct the rerun. At a minimum, this is a positive signal, but whatever changes are made should include a rapid assessment of what went wrong during the 8 August election as well as implementation of safeguards to avoid a repeat of those failures. In the absence of an agreement, religious leaders and diplomats with leverage over key actors should step in to broker an acceptable compromise, as they did in October 2016 when the opposition led protests to oust commissioners that presided over the 2013 election.

Ultimately, going into the new election, the IEBC should heed Chief Justice David Maraga’s clear admonition: elections are a process, not a single event, and should strictly adhere to the constitution and statutory processes at every stage. In particular, they should ensure that the expensive electronic system procured to improve transparency in transmission of results is deployed effectively and results posted without undue delay. Unexplained delays in releasing returns from tallying centres underpinned early opposition complaints over the 2017 vote.

Ensuring effective, non-partisan policing

If the electoral commission fared poorly in the elections, police forces did no better.  Security forces brutally cracked down on protesters in the aftermath of the voting, with at least 24 Kenyans killed by the police, including a six-month old baby. As an immediate step, the Independent Policing and Oversight Authority (IPOA), the state agency charged with investigating police excesses, should expeditiously probe the killing of innocent civilians and bring charges against suspects. This, combined with a clear statement by the authorities that such behaviour is unlawful and perpetrators will be held to account, should help deter similar behaviour in the run-up to, and aftermath of, the new elections. 

In the longer term, far deeper reforms of the security forces will be needed, involving in particular greater investment into training for conflict-sensitive policing.

The role of observers

Observer missions were not spared by Kenyans unhappy with their elections. In reality, observers for the most part made their preliminary statements with caveats, underscoring that they were but initial assessments of voting and counting. Few of those statements could be read as ringing endorsements of the polls, while most highlighted significant flaws. Some observers subsequently took the unusual step of criticising the lack of transparency and speed in tallying of the results. None dismissed Odinga’s complaints, instead calling on him to pursue them through the courts not the streets, which, to his credit, he did, with the stunning results we now know.

That only goes so far, however. The impression created, by the statements themselves and by observers’ other pronouncements, was that results were accurate, and it was time to move on.

As the Supreme Court explains its reasoning, and more facts come in, there are lessons to be learned by all ahead of the next round. The timing and tone of preliminary statements after a complex and tense election always poses dilemmas for observers.  Early statements risk precipitous and flawed assessments, with consequences for observers’ credibility. But they can also calm jittery nerves. In 2007, the European Union delayed its statement by a few days, but was criticised at the time for reinforcing the sense of uncertainty that played into the post-election violence. As in all such circumstances, parties that were involved – such as observer missions and independent organisations, Crisis Group included – stand to gain by engaging in a measure of introspection and lessons learned. 

There is, particularly among opposition ranks, understandable anger [...] at the international observers’ performance.

There is, particularly among opposition ranks, understandable anger, justified or not, at the international observers’ performance. Yet all Kenyan leaders should hold their fire.  Observers, like the media and outside organisations, can play a central role in deterring abuse and in improving the atmosphere in heavily polarised environments marked by low trust in public institutions. Their voice in what is likely to be a fraught campaign and poll over the coming weeks will be critical. In this context, observer missions will need to redouble efforts to define precisely and with greater clarity their conclusions in all public statements.

The Supreme Court’s decision represents a victory for the independence of Kenya’s judiciary and the rule of law. The onus now shifts to the country’s politicians, and to those in the international community with influence over them, to act responsibly so that Kenyans can witness a smooth, peaceful and credible vote by the end of October.