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Kenya’s Coast: Devolution Disappointed
Kenya’s Coast: Devolution Disappointed
Table of Contents
  1. Overview
A Muslim woman and her children cross the Majengo area of Mombasa, after police secured the area in a major security operation, 17 November 2014. AFP PHOTO/Ivan Lieman
Briefing 121 / Africa

Kenya’s Coast: Devolution Disappointed

Six new coastal counties created by Kenya’s 2010 constitution have replicated the closely-held patronage politics of the former Coast province, adding to inefficiencies, costs and mutual suspicions. To maximise the potential of devolution – and prevent militants like Al-Shabaab exploiting popular disappointment – Nairobi and the new counties need to become more cooperative, open to dialogue, and inclusive, especially toward marginalised youth.

I. Overview

The huge public expectations raised by devolved government on Kenya’s coast have turned into disappointment. Patronage politics that marked the former centralised system has been replicated in the new counties, making government even more inefficient and expensive. Though political leadership is now local, power is closely held, and leaders are suspicious of both national and local rivals. Certain regions, communities and many youth still feel marginalised. Political devolution has deflected but not resolved grievances that fuel militancy, which continues to be met by hard security measures driven from Nairobi. Greater inclusion and cooperation within and between county governments, as well as national-county dialogue, is needed to maximise devolution’s potential and ensure militant groups, like Al-Shabaab, have fewer grievances to exploit. 

The 2010 constitution prescribes partnership between national and county institutions; instead there is competition and confrontation (at least for now peaceful). The former Coast province is divided into six new coastal county governments. They are caught between the popular and still potent idea of majimbo – greater political and economic autonomy and authority devolved to the regions – and a central government that expects them to focus on service delivery and only play a parochial political role that many dismiss in frustration as vijimbo (little regions). National government (including the president) have undertaken a number of high-profile, if piecemeal, initiatives that the coastal county elite has interpreted as a challenge to the spirit of devolution and its local political primacy. In response, leading coastal politicians are stirring up local discontent and threatening unilateral takeover of key revenue resources such as Mombasa port. However, the coastal retreat into defensive regionalism is likely only to exacerbate county-capital frictions, not extract concessions from the national government. 

The tension between national and county government is not unique to the coast, but coastal grievances, historical and current, are particularly acute and have fuelled the recent rise in nativist and Islamist-inspired militancy. Militant networks, though damaged and presently dormant, are by no means dismantled, and parallel networks of urban youth gangs and armed political entourages make for a still combustible mix. The coastal counties also remain an opposition stronghold into which the ruling party would like to make inroads. This risks a convergence of national and local political competition in the 2017 elections of a sort that in the past has produced communal tensions and localised violence. 

The gulf of mistrust – exploited by all sides – not only limits the full delivery of devolution’s benefits; in the case of the coastal counties, it also undermines efforts to combat militancy and attendant violence now subsumed under a “countering violent extremism” (CVE) agenda that is a priority of both Nairobi and its international partners. Rather than focus solely on building the capacity of the security and intelligence services, international assistance to counter radicalisation should give equal and increasing emphasis to outreach and reconciliation, so as to find political common ground and articulate and address the region’s grievances within the coast’s newly devolved political structures. 

A renewed civic education campaign to underline the potential gains of devolution, as well as the responsibilities and roles of county government and its elected representatives, is urgently needed. Promising initiatives like the “Commonwealth of Coast Counties” (Jumiya Ya Kaunti Za Pwani, JKP), which aim to amplify the benefits of county government through regional (cross-county) projects, need to be depoliticised and given technical support by relevant national ministries and authorities and multilateral institutions (eg, the World Bank). There should be greater institutionalisation of welcome, but currently ad hoc, interventions toward resolving long-term land grievances, specifically the regularisation rather than wholesale redistribution of land titles.

Overall, renewed reconciliation work is needed at all levels in the coastal counties ahead of elections; specifically, national and county governments and donors need to reach a renewed understanding of the role and limits of civil society and community-based organisations (CSOs and CBOs), which are still best placed to identify and diffuse potential conflict flashpoints at local levels. The promotion of greater partnership between national and county governments (even as a regional bloc) should be a security and developmental priority for Kenya and its partners.

Nairobi/Brussels, 13 July 2016[fn]Crisis Group receives financial support from a wide range of governments, foundations and private sources. For more information, please see Our Supporters. For a full print version of this report with a list of supporters, please apply to brussels@crisisgroup.org.Hide Footnote

Residents walk past a closed shop, with a message calling for peace painted on its doors, as life returns to normal after post-election violence in the Kibera district of Nairobi, on 16 August 2017. AFP/Tony Karumba
Briefing 129 / Africa

How to Ensure a Credible, Peaceful Presidential Vote in Kenya

Following the annulment of August’s historic vote, Kenya must hold repeat presidential elections by 1 November. But rising tensions and the threat of an opposition boycott could result in missing the vote's deadline and risk a constitutional crisis. Both political camps must move away from harsh words and find mutually acceptable electoral reforms to allow elections to proceed.

I. Overview

Kenya must hold repeat presidential elections before 1 November, after the country’s Supreme Court annulled a first vote that took place in early August. The Court’s decision was historic, unprecedented in Africa’s electoral history and applauded across the continent and beyond. It has, however, provoked a response from Kenyan political leaders that has introduced new levels of tension and uncertainty ahead of the fresh vote. Both camps – President Uhuru Kenyatta’s ruling Jubilee Party and his rival Raila Odinga’s National Super Alliance (NASA) – have adopted inflexible positions; both mobilise supporters in the streets. An opposition boycott of the forthcoming vote or failure to hold it before the deadline could provoke a political or constitutional crisis. Graver still are risks of escalating clashes between protesters and security forces.

The immediate challenge is to find a formula, centred on electoral reforms, that persuades Odinga’s camp to participate, is acceptable to President Kenyatta and Jubilee, and does not involve changes to the Independent Electoral and Boundaries Commission (IEBC) so extensive that it is hamstrung and unable to administer the polls in time. One way to break the logjam might be for both parties to embed representatives in the IEBC to observe election preparations. This, together with significant changes to electoral procedures – some of which the IEBC already has proposed, others of which should follow – could increase confidence in the vote. Kenya’s international partners, who retain a degree of leverage and good-will with players on both sides of the divide, could help mediate such an agreement.

Even if the parties find a path to elections, the threat of violence afterwards, whatever the outcome, is high.

Even if the parties find a path to elections, the threat of violence afterwards, whatever the outcome, is high. A firmer stand by Kenyan leaders against hate speech and pledges to campaign peacefully and take any complaints back to the courts after the vote would go some way to lower the temperature. Security forces should prepare to manage protests impartially; holding to account officials that overstepped in August would send a positive signal. International observers should also adapt their approach based on their experiences during the first vote, potentially reviewing the timing of their post-election assessments. With its decision, the Supreme Court made a bold statement about judicial independence and the need for improved and more transparent election administration; Kenyan leaders now need to move away from harsh words and towards compromise.

II. Deepening Fault Lines

In its detailed judgment released on 20 September, the Supreme Court’s majority criticised the Independent Electoral and Boundaries Commission (IEBC) for its conduct of the vote. In essence, they found no evidence of flaws in polling and counting but such widespread “irregularities and illegalities” in results tabulation and transmission as to render the process a violation of election regulations and the constitution. They cited in particular the announcement of final results before the IEBC chairman had received scanned returns forms from over 10,000 polling stations and the IEBC’s refusal to open its server to scrutiny and allow the court to investigate further.[fn]Olive Burrows, “Blame for nullified poll lies squarely on IEBC: Supreme Court”, Capital News, 20 September 2017.Hide Footnote

Fault lines have deepened since the court’s decision. Opposition candidate Raila Odinga feels vindicated by a judgment that largely upheld his petition against the IEBC’s handling of results (official tallies showed his rival, President Uhuru Kenyatta, winning by 54 to 46 per cent). Odinga’s NASA party has presented a set of demands ahead of the new vote.

These include the replacement of several senior IEBC officials, notably its chief executive officer, Ezra Chiloba, more transparency in the electoral body’s IT systems and new returning officers – officials responsible for constituency tallying centres. NASA threatens to not only boycott the fresh vote but to prevent it from taking place at all if these demands are not met. “You cannot make a mistake twice and expect to get different results”, Odinga told reporters on 5 September.[fn]“Kenya’s Odinga rejects election re-run date without ‘guarantees’”, VOA News, 5 September 2017.Hide Footnote On 26 September, his supporters began a round of what they promised would be weekly street protests until Chiloba quits.

[President Kenyatta] portrays the justices as having subverted the people’s will, has labelled them “crooks” and has signalled his intention to clip their wings, a dangerous escalation against the judicial branch.

President Kenyatta, seeking a second and final term, initially adopted a measured response to the judgment, saying he disagreed with it but would respect it. Since then, however, his rhetoric has hardened. He portrays the justices as having subverted the people’s will, has labelled them “crooks” and has signalled his intention to clip their wings, a dangerous escalation against the judicial branch.

On 14 September, a parliamentarian from Kenyatta’s ruling Jubilee Party filed a petition to remove Chief Justice David Maraga from office, only to withdraw it two days later in the face of public backlash. Ruling party supporters also have taken to the streets; on 19 September, they burned tires and blocked the Supreme Court’s entryway. Those actions, Maraga said, were designed to “intimidate the judiciary”. Kenyatta and his Jubilee Party reject NASA’s demands for reforms ahead of the forthcoming vote; Deputy President William Ruto, cites them as proof Odinga has no intention of participating. On 28 September, a group of Jubilee MPs sought to impose their own reforms, proposing legal amendments that would institute significant changes, including dropping the electronic transmission of votes as the primary mode of relaying results.

The IEBC has set the election date for 26 October. But considerable distance remains between the two camps over how the balloting will be conducted. An opposition boycott could lead to a lasting political stalemate. Failure to hold a vote before 1 November could provoke a constitutional crisis, given that Kenya’s 2010 constitution is silent on what would happen in such an eventuality. With memories of past election-related violence still raw, there is a real risk of further clashes between opposition supporters and security forces, with grave potential to escalate.

III. A Workable Compromise

The immediate priority is to find a formula that is both acceptable to both sides and workable for the IEBC. This will be no mean feat, given that both political parties appear to have settled into intransigent positions and the IEBC itself is now beset by infighting, with memos between the chairman and chief executive officer seeking to assign blame being leaked to the media.[fn]Samwel Owino, “Leaked Chebukati memos reveal infighting in electoral body”, Daily Nation, 20 September 2017.Hide Footnote

In principle, the court’s decision should give all sides room to compromise. For Kenyatta, though the decision absolved him personally of any wrongdoing, the scale of the problems it identified casts a shadow over the August 8 results. A new vote, with improved electoral procedures, would be an opportunity for him to try to secure a clearer mandate. For Odinga, the court decided in his favour, vindicating his longstanding complaints about the integrity of Kenya’s electoral system. It did not, however, identify systemic fraud or evidence that the widespread irregularities and illegalities affected the outcome. For the IEBC, the judges did not find any electoral official individually culpable, but did identify major problems with its handling of results and demanded it adopt significant remedial measures, which the IEBC must do in full if it is to restore public confidence.

Both Jubilee and NASA should approach forthcoming talks with the IEBC in a spirit of compromise to find a path forward.

Little time remains before the expiration of the statutory 60-day deadline for holding a fresh election. Both Jubilee and NASA should approach forthcoming talks with the IEBC in a spirit of compromise to find a path forward. Both must avoid acting unilaterally or in ways that undercut the credibility of the vote or prospects for compromise. In that light, Jubilee’s proposed amendments to electoral legislation should be shelved and such changes made only if they enjoy cross-party consensus.[fn]John Ngirachu, “Jubilee Party begins plan to change election law”, Daily Nation, 28 September 2017.Hide Footnote

One way forward might be for both camps to embed an agreed number of party representatives in the IEBC to observe every stage of preparations. This would include, in particular, active monitoring of tallying and results transmission. A compromise along these lines would echo a 1997 deal pursuant to which then-President Daniel arap Moi agreed to the opposition appointing representatives within the electoral commission to avoid an opposition boycott. It could assuage fears of vote tampering and go some way to reassure NASA that the vote will be credible, even in the absence of sweeping changes in the IEBC’s ranks.

The IEBC already has proposed significant changes to protect the integrity of the vote. These include, for example, bolstering the number of United Nations and Commonwealth experts within the electoral commission to help manage the IT system.[fn]This text was changed on 2 October 2017. The former text noted that the IEBC had proposed to the parties that it could request UNDP to print ballot papers and results forms for the re-run; while this was part of the IEBC's proposal to parties, the request was never formally submitted to UNDP. The previous text also said UN and Commonwealth experts would "monitor" the IEBC IT systems; in fact those experts form part of technical assistance teams helping the IEBC manage those systems.Hide Footnote Before the election is held, the IEBC should take further steps to address problems identified by the court. Particularly important is that it develop and publicise its plan for the electronic transmission of votes from all 40,883 stations as required by law. It should heed the judges’ suggestion that it put in place a backup system in case the electronic transmission system fails. And it should clarify how it will handle the polling results transmission from the 11,115 stations not covered by 3G mobile network in the last election. Electoral commission officials in many of these areas sent in results without accompanying scanned forms for verification of the tallies, one of the judges’ chief complaints in annulling the vote.

Before the election is held, the IEBC should take further steps to address problems identified by the court.

Another priority is fresh training for all personnel, notably presiding and returning officers who will serve in polling stations and constituency tallying centres. Moreover, the IEBC should consult with representatives of the two camps on key decisions and procedures; the Election Technology Advisory Committee and Interparty Liaison Committee can serve as avenues for it to do so. The commission should communicate regularly and often to the public, avoiding late announcement of key procedures. The IEBC chair should inform all staff in writing that by law they must share information at the polling station level, including final tallies, with all party agents.

IV. Lowering the Temperature

While a deal between the two camps on election administration would go a long way to cooling the fraught environment, Kenyan leaders should take additional measures. Here Kenyatta and Odinga could borrow a leaf from their counterparts in similarly high-stakes polls in other African powerhouses, Ghana and Nigeria. In particular, they publicly should pledge to pursue grievances related to the forthcoming vote in the courts not the streets. Consensus on election procedures might offer an opportunity for joint statements by the two candidates or other Jubilee and NASA leaders calling for a peaceful campaign. Their very appearance together would do much to reverse the polarisation deepening between the camps.

The leadership of both parties also should invest in greater efforts to curb hate speech. President Kenyatta took a welcome step on 12 September, when he condemned politicians from all sides who engaged in such discourse. That same day, the director of public prosecutions charged two senior figures – Moses Kuria, a Jubilee Party parliament member representing Kenyatta’s home constituency and Johnstone Muthama, a leading opposition politician – with hate speech. Even so, widespread skepticism remains. Few senior Kenyan politicians have been successfully convicted for hate speech and doubts will be erased only when that changes. The office of the prosecutor and judiciary should prioritise such cases and ensure culprits on all sides are prosecuted in a timely and effective manner.

In the same vein, the government ought to call off its harassment of civil society groups. A week after the 8 August election, the board that supervises NGOs ordered the closure of several prominent organisations, including some believed to be planning to challenge aspects of the vote in court. While a high court ruled the decision illegal and forced the government to backtrack, the board’s attempt nonetheless sent a chilling message about the lack of tolerance for such groups’ activities.

A. Securing the Vote and its Aftermath

Outbreaks of violence after the August vote largely were contained, but not before 24 protesters were killed, mainly by the police using force in opposition strongholds.[fn]“24 killed in post-election violence in Kenya, rights group says”, CNN, 13 August 2017.Hide Footnote This time too, regardless of the outcome of the new polling, the potential for bloodshed is significant. Police are likely to deal with protests again, and it is vital they respond in a way that prevents or contains violence.

To improve such prospects, the Independent Policing and Oversight Authority – the state agency charged with probing police abuse – should expedite its investigation of the killing of protesters in August. The inspector general of police should issue instructions, including publicly, to officers to obey Kenyan law and avoid excessive force when handling protests. He also should provide security to figures playing a role in the wider electoral process, including judges. On 19 September, Chief Justice Maraga specifically complained about the failure of the police to heed requests for enhanced security for Supreme Court justices who have endured a campaign of vilification since their decision to annul the election.

B. Lessons for Observers

NASA leveled considerable criticism at international observers, accusing them of rushing to pronounce Kenyatta the winner in August. Here some correction is necessary. None of the preliminary statements by major observer missions could be read as wholesale endorsements of the vote, even if that was the impression created by subsequent media reporting.

That said, observers should adjust their approach based on the August precedent. The judges in the majority concluded that they could not rely solely on observers’ preliminary statements because few missions “interrogated the process beyond counting and tallying at the polling stations”. Given the controversy surrounding the electronic tabulation system, observers should negotiate with the IEBC terms for monitoring that system and focus there as well as on polling, counting and tallying in polling stations.

Observers also could review the timing of their initial statements after the polls, to take into account findings on results tabulation, or at least redouble efforts to make clear which aspects of the process those statements cover. In an interim statement issued on 14 September, the European Union team undertook to improve the clarity of its future communications and to consider allowing more time between the vote and its issuance of a preliminary assessment.[fn]Recommendations for the Re-Run Based on Findings Since the 8 August Election Day”, interim statement, European Union Election Observation Mission Republic of Kenya, 14 September 2017.Hide Footnote

Critics of international observers nevertheless should be careful not to undermine the useful role independent voices can play, particularly in such a high stakes contest. To denounce them or seek their exclusion risks making the rerun more fraught still.

V. Conclusion

Kenyan elections too often are fierce contests for power, with the quasi-existential nature of competition between rival elites leading to violent fallouts before and after balloting. Though reforms after the 2007/2008 crisis and Kenya’s new constitution went some way to addressing the zero sum political competition, politics remain rooted in ethnic polarisation and attempts to capture the spoils of the state.

In this light, the uncertainty over the rerun is particularly dangerous. The two camps ought to agree on a compromise that allows preparations for the vote to advance and prevents a crisis that could spill well beyond Kenya’s borders, given its place as a regional anchor whose port serves economies including those of Uganda, Rwanda and the eastern Democratic Republic of Congo. In light of the extreme polarisation in Kenyan society, diplomats can help bring both camps together, press politicians to play constructive roles and encourage key institutions, particularly the IEBC and security forces to fulfil their duties impartially at an exceedingly delicate time for Kenya.

Nairobi/Brussels, 2 October 2017