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Kenya: Development, County Governments and the Risk of 2017 Election Violence
Kenya: Development, County Governments and the Risk of 2017 Election Violence
An Election Delay Can Help Avert Kenya’s Crisis
An Election Delay Can Help Avert Kenya’s Crisis
A Turkana woman walks past a road construction project near Isiolo town, about 320 km (200 miles) north from the capital Nairobi, on 7 July 2008. REUTERS/Antony Njuguna
Commentary / Africa

Kenya: Development, County Governments and the Risk of 2017 Election Violence

ISIOLO, Kenya. Until a decade ago, few ventured beyond Isiolo without armed police escort. A dusty frontier garrison town in central Kenya, it was the gateway into the badlands of Kenya’s former Northern Frontier District.

In the last two decades, as Kenya’s economy and politics have liberalised, Isiolo has transformed into a vibrant commercial hub owing much to its strategic location. It straddles the recently upgraded (paved) Pan-Africa highway that links the Horn (especially Ethiopia’s huge and relatively untapped markets) to central Kenya and beyond to Central and Southern Africa.

Isiolo is also an important node of Kenya’s LAPSSET (Lamu Port, South Sudan and Ethiopia) planned infrastructure project. This seeks to develop a new “northern” transport corridor between Kenya and Uganda and to better integrate Ethiopia and South Sudan into East Africa, and will include a new port being built near Lamu, oil pipelines and a refinery.

LAPSETT’s prospects have declined with the global price of oil, the rising terrorist threat in the North East, South Sudan’s civil war, and with Uganda now looking at an alternative pipeline route via Tanzania. Isiolo, however, will continue to play a central role in Kenya’s ambition to exploit its vast northern rangelands. 6,500 acres have been set aside for a new “Isiolo Resort City”, construction for a large dam on the Ewaso Nyiro River to serve it is already underway; a new airport, and a modern abattoir to process 400 cattle daily from the region’s large livestock population are also planned.

Yet Isiolo is one of a number of 47 new counties that face risks of conflict ahead of and during the 2017 polls. Not only has the national problem of an ethnic winner-takes-all politics devolved to the counties’ internal electoral competition, but local actors are making exclusive claims over potentially lucrative resources and infrastructure that fall in their boundaries, increasing conflict over internal administrative borders – which are often badly demarcated and therefore disputed. While these conflicts are found throughout Kenya, they have particularly affected counties in the pastoral areas of northern and southern Kenya, including the Rift Valley.

Devolving authority to county government in 2013 was one of the principal innovations of the 2010 constitution.

Devolving authority to county government in 2013 was one of the principal innovations of the 2010 constitution, and a response to the 2007-2008 post-election violence. The goal was to enhance local communities’ participation in development with the expectation that it would reduce competition over national resources, which had often taken on ethnic overtones and fuelled violence, especially at election time. It was also hoped county government would enable marginalised regions to catch up with the more developed areas, again addressing and reducing historic regional grievances.

Undoubtedly there has been a surge in county-based development especially in infrastructure, but these gains (and devolved funds that finance them) are connected to a rise in localised conflicts and insecurity in three aspects:

  • The heightened stakes of county power, controlled by the governor and other elected officers, have often reproduced national ethnic competition at county level.
     
  • The creation of new minorities within counties including in urban settings is generating new tensions, particularly where their economic activities are now seen as outsider competition by the new county elites.
     
  • Inter-county competition is growing over the ownership and control of big national or regional development projects where they traverse county boundaries, making these borders prone to violent dispute and rendering residents belonging to minorities from rival counties vulnerable to reprisals.

While Isiolo’s potential should bring development dividends – 63 per cent of its population live below the poverty line – its prospects are already blighted by a sharp rise in communal conflict. This is partly because control of national-regional development projects is contested by the new county elite as exclusively “theirs”.

The Isiolo county population (estimated at over 150,000) is diverse. Most are herders from tribes like the Boran, Somali, Samburu and Turkana in the northern “rangelands” (desert in the eyes of many), but a minority are farmers, because the county straddles the line of “sown” lands of the central highlands, settled by Meru agriculturalists and traders.

While this crossroads of livelihoods brings exchange and a dynamic local economy, it has also driven conflict: in the 1990s most of the ethnic violence was between the Boran and Somali, but since then ethnic conflict has diversified and evolved. In late October 2015 deadly clashes pitted Somali, Boran and Samburu herders against Meru farmers along the disputed county border resulting in six deaths. A few days later, riots erupted in Isiolo town following the death of a Meru boda boda (motorbike-taxi) operator; Boran, Somali and Turkana then looted Meru shops and blocked the Isiolo-Nanyuki highway; the situation was only brought under control by the deployment of soldiers from the 78th Tank Battalion, based in the town’s outskirts.

The Isiolo-Meru tension is just one example of inter-county disputes that now affect more than half the counties.

Because of the way Kenya’s new counties were often hastily drawn up (some see deliberate ethnic “gerrymandering”), formerly cosmopolitan regional capitals have become administrative centres for smaller counties dominated by one or two ethnic groups, and smaller communities neighbouring counties or further afield living in these cities have become “minorities”. In Isiolo’s case, Meru communities are now a minority, dominant in trade and in some urban wards, but frozen out of the big county executive seats, like those for the governor, senators and members of the national assembly. They are caught up in the increasingly bitter and violent conflict over the poorly-defined border between Isiolo and Meru counties.

The Isiolo-Meru tension is just one example of inter-county disputes that now affect more than half the counties, with growing calls for a new county border demarcation exercise. The Commission on Administrative Justice (a statutory body to address administrative and governance disputes) has called for the creation of a County Boundaries Commission, with a mandate to conduct a new survey and clearly mark out borders with visible markers. However, any new commissions or actions are unlikely to have an impact on contested boundaries before the 2017 elections.

Inaction is not an option since contested boundaries and the ethnic interests competing over them will aggravate hotly disputed county elections in 2017. The counties and the national government need to consider a sequence of high-impact policy interventions to mitigate the risk of county-based conflict, now and in the run-up to 2017. These could include:

  • a moratorium on all land sales in disputed country border areas, pending the outcome of a credible adjudication of contested lands and county border demarcation (properly marked with high-visibility markers);
     
  • a clear national government policy statement that borders will be reviewed after the 2017 polls by an independent technical commission and its decisions will be final and binding;
     
  • the creation of a new “County Inclusion Index” by the National Cohesion and Integration Commission to identify counties that are failing to meet the constitutional requirements of inclusive government (the commission is already doing this but on an ad hoc basis);
     
  • new high-level inter-county talks, involving elected officials and a broad cross-section of credible civil society leaders, to ease tensions and create sustained peacebuilding and reconciliation.

Contributors

Researcher, Horn of Africa
a_abdille
Project Director, Horn of Africa
RAbdiCG
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