|Old demons, new pressures: Challenges in the lead up to Kenya’s next elections|
|Written by Helidah Ogude (1) Thursday, 16 February 2012 08:00|
Before March 2013 Kenya will hold presidential and Parliamentary elections that are certain to test the resilience of its democracy. Although a final date is yet to be set, political jockeying and campaigning has begun in earnest. The lead up to the elections will be especially scrutinised because of the inter-communal violence that followed the fiercely contested 2007 presidential elections in which over 1,000 people were killed and 300,000 displaced.(2) Two presidential aspirants, Uhuru Kenyatta and William Ruto, are among four suspects facing charges by the International Criminal Court (ICC) related to their alleged role in the 2007-2008 post-election violence.(3) Critically, the so called Sheng generation,(4) young voters who view themselves as distinctly different from their older counterparts, are a key constituency that presidential hopefuls will need to sway.(5) Compounding existing challenges is Kenya’s biggest military intervention since independence – Kenyan troops entered Somalia in October 2011 in pursuit of militant Islamist Al-Shabaab fighters who are said to be threatening Kenya’s vital tourism industry.(6)
This article provides an analysis of some of the most critical challenges in the lead up to the elections: a culture of impunity that continues to stain the moral fabric of Kenya; the significant role that the ICC charges are playing in influencing political strategies; the continued importance of the youth vote and the socio-economic frustrations they feel are a consequence of endemic corruption, weak political institutions and their Government’s slow service delivery, and Kenya’s military presence in Somalia. The article contends that until the underlying structural imbalances that contributed to the 2007-2008 spate of violence are effectively addressed, Kenya will continue to be threatened by election-related violence.
Normalisation of violence and entrenched impunity
Although the 2007-2008 post-election violence was largely perceived as an exception, violence has in fact been a common feature of Kenyan politics since the inception of multiparty elections in 1991.(7) The scale of violence in 2007 and 2008 was, however, unprecedented.(8) Analyses of the post-election violence, especially Western journalistic reporting, characterised the tensions as ‘inter-ethnic’.(9) However, reducing the post-election violence in Kenya to ‘tribalism’ and ‘ethnicity’ is not only grossly simplistic, but also dangerous, because it ignores the root causes of the ills that plague contemporary Kenyan society. The eruption of violence in 2007-2008 was fundamentally indicative of grievances over land, economic inequality, unemployment and a myriad of historical and structural imbalances that have been festering and disregarded since Kenya’s independence.(10) Furthermore, Kenya’s politics is crippled by patronage politics; the political elite reward their kin and kith, politicising ethnicity and entrenching a culture of corruption and impunity.
The Commission of Inquiry into the Post-Election Violence (CIPEV) of 2007-2008, chaired by Kenya’s Court of Appeal Judge, Philip Waki, underscored this very point: “[Impunity] lies at the heart of preventing the kind of violence that has been witnessed in this country time and time again.”(11) Consequently, the Waki Commission, as it is commonly known, recommended the creation of a Kenyan special tribunal to try accused organisers.(12) Conscious of the history of political impunity, the CIPEV added an important caveat to the recommendation: should a national tribunal fail to be established, mediator in the crisis and former UN Secretary General, Kofi Annan, would be required to hand over a sealed envelope containing the names of those alleged to bear the greatest responsibility for the violence to the ICC for investigation and prosecution.(13) But in spite of this caveat, political spoilers prevented a bill to establish a special tribunal from being passed on two occasions. Subsequently, on 15 December 2011, ICC Chief Prosecutor, Luis Moreno-Ocampo, announced the names of six suspects who were alleged to bear the greatest responsibility for crimes committed during the post-election violence.(14) This pivotal development signalled that the ICC may inaugurate a new era of accountability that serves to deter violence in Kenya.
New constitution signals positive change
On 4 August 2010, Kenyans overwhelmingly voted for a new constitution, signalling their desire for an entirely new legal framework and a new dispensation characterised by a respect for human rights, good governance and accountability.(15) The Constitution has led to important reform initiatives in the Kenyan judiciary, including the appointment of a new independent Chief Justice and the swearing in of five Supreme Court judges; all crucial steps in rebuilding public trust and respect for governing institutions.(16) Additionally, the benchmark has been raised for presidential contenders through the Political Parties Act.(17) The Act, which came into effect in November 2011, denotes rigorous conditions for political parties to comply with or risk disqualification.(18) A successful candidate must obtain an absolute majority of votes as well as a majority of the votes in at least 24 of the 47 counties.(19)
However, some crucial delays are currently being experienced in implementing some of the requirements of the Constitution. Although the Independent Electoral and Boundaries Commission (IEBC) has begun demarcating new boundaries, the credibility of the Commission’s processes has been questioned by some politicians.(20) Notably, there have also been delays in security sector reform (SSR). This comes amidst allegations that the security sector did not perform its function adequately during the post-election violence. In fact, the police were instrumental in carrying out state-sanctioned violence and bear the greatest responsibility for deaths.(21) Critically, 60% of the Constitution aims to resolve some of the contentious issues around which violence was concentrated, such as the devolution of powers and resources.(22) But seemingly, as the battle for individual and political party interest intensifies, the coherence among leadership for implementing the Constitution is being marginalised. Ironically, it is the effective implementation of the Constitution that is essential to the smooth and peaceful running of the next elections.
“Ocampo Four”, ethnic clientilism and Kibaki’s fragile power
In the lead up to the forthcoming elections several key figures are likely to have an influential role on the political landscape. Incumbent President, Mwai Kibaki of the Party of National Unity (PNU), will have to step down after serving two five-year terms, while(23) George Saitoti, Internal Security Minister and PNU Party Chairman, has started his campaign to popularise the party.(24) Current front runner, Prime Minister Raila Odinga of the Orange Democratic Movement (ODM), will again run for presidency.(25) However, unlike any election in Kenya’s history, an influential and ubiquitous character has entered the political fray: the ICC.
On 23 January 2012, millions of Kenyans anxiously awaited the announcement by the ICC to determine if they would confirm charges against the “Ocampo Six”. Few Kenyans had doubts about the impact the announcement would have on their political and security landscape, and its significance in shaping the Kibaki succession. The highly anticipated announcement did not confirm charges against Henry Kosgey, current National Chairman of the ODM, and Mohammed Ali, former Police Commissioner. The ICC did however confirm charges against four of the initial six suspects including journalist Joshua Arap Sang and Francis Muthaura, who, due to civil society pressure, has since “stepped aside” in his role as Head of the Civil Service.(26) Significantly, two presidential aspirants, Uhuru Kenyatta, current Deputy Prime Minister, and William Ruto, suspended Higher Education, Science and Technology Minister, are among the four suspects facing charges by the ICC.(27) All four suspects have since appealed their charges.
In a country in which political parties have historically mobilised constituents based on ethnicity, even an externally driven process, like the ICC’s, cannot escape this reality. Kenyatta is a member of the Kikuyu community, the largest ethnic group in Kenya. While Ruto, a Kalenjin, enjoys considerable support from that group.(28) Shortly after the ICC first identified the six suspects, Ruto and Kenyatta toured the country in alliance, holding rallies in which they claimed they were framed by political opponents, notably, ODM’s Odinga.(29) Additionally, in a quest for a United Nations (UN) Security Council deferral of the ICC charges, Ruto (Kalenjin), Kenyatta (Kikuyu), and Vice President Musayoka (Kamba), founded the (inauspiciously named) “KKK” political alliance.(30) This later morphed into the Group of Seven (G7), extending the KKK alliance to more political players.(31) The logic was that an umbrella party would make it easier to win the presidency against Odinga.
Worryingly, in the lead up to the 23 January 2012 announcement, although the ICC remained popular among Kenyans, Kenyan public approval of its role was declining, with some analysts attributing this to “extensive and sophisticated media campaign[s] to cast [the accused] as victims of the Court.”(32) According to the Kenya National Dialogue and Reconciliation Monitoring Project, the reduction in support of the ICC “may be attributed to the perception that the Court failed to include all the perpetrators from regions which experienced violence, which implies failure to include leaders of other ethnic groups.”(33) The “Ocampo Six”, on various occasions accused Moreno-Ocampo and the ICC of selective justice because charges were not brought against anyone from the Luo community (Odinga’s ethnic community) even though Luo Nyanza was also affected by the 2007-2008 violence.(34)
Real fears existed that the ruling made by the ICC could escalate ethnic tensions regardless of the legal merits. As such, the build-up to the 23 January 2012 ruling was marked by impassioned debates and persistent calls from various stakeholders for peace.(35) Conscious of the political gravity of their decisions, the ICC ruling intentionally reflected this concern. ICC Judge, Trendafilova, warned against the incitement of violence, while emphasising that the “presumption of innocence [of the suspects] remains fully intact,” and that the process does not bar them from holding public office in Kenya.(36)
What is certain is that the much talked about backlash, should the presidential hopefuls be indicted, has not occurred. Instead, diverse civil society groups used their collective voice to demand Kenyatta and Muthaura, resign from public office. Their persistent pressure, along with pressure from ODM MPs, resulted in Kenyatta and Muthaura resigning as Finance Minister and Head of Civil Service respectively, in spite of their initial reluctance to do so.(37) Kenyatta has, however, insisted on remaining in his role as Deputy Prime Minister. This, despite an agreement signed by President Kibaki and Prime Minister Odinga on 16 December 2008, mandating that those charged with crimes related to the post-election violence should neither hold public office nor contest for any elective office.(38)
Kenyatta and Muthaura’s resignations are but one of the first signs of incumbent President Kibaki’s power sanctum waning. During the ICC ruling, Kibaki’s name was linked to the Mungiki – an infamous armed militia group that is alleged to have carried out reprisal attacks against ODM supporters in 2008(39)– a revelation that is likely to have sent shockwaves through the Presidency. Kibaki has since denied the allegations, accusing ICC Prosecutor, Ocampo, of making careless statements to dent his credibility.(40) A lot in the coming months hinges on decisions made by the incumbent President. How Kibaki manoeuvres through an increasingly foggy political terrain while his cronies are under siege and with the threat of being personally implicated by the ICC, is a factor that will likely shape the unfolding political scenario for months to come. Will he stand by his trusted lieutenants, Kenyatta and Muthaura, or will he bow to public pressure, abandon them and secure his legacy?
Can Kenyatta and Ruto run for presidency?
The ICC ruling presents important legal questions that are certain to test the robustness of the Kenyan judiciary, currently under reform. The most contentious of questions is whether Kenyatta and Ruto can legally run for president while facing charges of crimes against humanity. In what appears to be a restoration of their political agency and a renewed faith in the Kenyan judiciary, Kenyans are challenging Kenyatta and Ruto’s presidential ambitions. Two hundred internally displaced peoples (IDPs) directly affected by the 2007-2008 post-election violence, the Kenya Youth Parliament, the Kenya Youth League and three Kenyan citizens, Patrick Njuguna, Augustino Netto and Charles Omang have jointly filed a suit at the High Court to block Kenyatta and Ruto from vying for presidency.(41) Ongoing debates about Kenyatta and Ruto’s eligibility to run is centred on Chapter Six of the Constitution.(42) According to this Chapter, the guiding principles of leadership and integrity include election/selection to office on the basis of personal integrity, competence and suitability.(43) For the High Court, the real contention will likely centre around the definition of ‘integrity’ and its relevance to the ICC cases.
Critics of the Kenyatta-Ruto ticket have argued that all that binds the two together are anti-reform, pro-impunity credentials.(44) Justice Minister, Mutula Kilonzo, gave a stinging criticism of Kenyatta and Ruto’s assertion to campaign regardless of the ICC’s ruling, describing their positions as the “height of impunity… if you are accused of crimes against humanity, you have no right to offer yourself to lead that same humanity.”(45) The Justice Minister argues that Chapter Six of the Constitution has clear provisions on the level of integrity expected of political office aspirants.(46)
The decision on who can vie for presidency could also be decided by the Cabinet sub-committee on the ICC. A team of legal experts that will advise the sub-committee was hastily and unilaterally appointed by Attorney-General, Githu Muigai, under President Kibaki’s direction, shortly after the ICC ruling.(47) ODM MPs have vehemently rejected the team of attorneys, claiming that the ODM was not consulted on the formation of the team.(48) Their decision will be placed before Cabinet for discussion and either approved or rejected. Interestingly, Muigai is himself being sued at the High Court by civil society activists who claim that he has ill-advised the Presidency on the ICC proceedings thus far and is serving “narrow and selfish” interests.(49) Furthermore, the seven-member sub-committee includes two other declared presidential hopefuls, sub-committee Chair Saitoti, and Foreign Affairs Minister, Moses Wetang’ula.(50) In response to questions on Kenyatta and Ruto’s pending ICC charges, Chairman of the IEBC, Isaack Hassan, charged with clearing candidates for elections, was non-committal when he said, “we will cross that bridge when we come to it.”(51)
Kenyans appear to be largely split on the issue. Some argue that it is the hopeful’s constitutional right to vie for public office, while others think it absurd that the next Kenyan president could be under investigation for perhaps the most serious crimes known to law.(52)
ICC impacts on political campaigns and alliances
The ICC’s actions are now in effect an inescapable element of the political process as Kenya heads to elections. All key actors are making their calculations based on the decisions made by The Hague.(53)
Prior to the announcement confirming the ICC charges, both presidential hopefuls were primarily focusing on their single candidacy platforms. Kenyatta revived the Kenya African National Union (Kanu) party of former President Daniel arap Moi.(54) He did, however, face opposition from Moi regarding far-reaching changes he intended to make to the party’s constitution, including changing the party name to the Kenya Alliance of National Unity in order to pull in at least 24 fringe political parties.(55) Meanwhile, Ruto was also building his own platform. Indicative of the fickle nature of Kenyan alliances and the intensification of political jockeying, Ruto was once Odinga’s point man in the Rift Valley in 2007 and an ODM negotiator during the Annan-led mediation in 2008.(56) Ruto, who has a strong following in the Rift Valley, has since unveiled his new party, the United Republican Party (URP), after leaving the ODM with some followers.(57) Interestingly, Ruto, Kenyatta and Saitoti boycotted the PNU-Alliance launch on 13 January 2012, sending further signals that they were all concentrating on their individual parties.(58)
However, as anticipated by several political analysts, the confirmation of charges against Ruto and Kenyatta changed the political playing field almost instantly. Kenyatta, Ruto and Vice-President Musyoka revived the KKK joint ‘prayer rallies’, where MP supporters said they came to “offer moral support for [their] brothers.”(59) Journalist, Joshua arap Sang, also facing charges by the ICC, along with 70 MPs and 1,000 councillors, attended the rallies.(60) A Kalenjin-Kikuyu ethnic voting bloc could prove very large and formidable if Kenyatta and Ruto are successful in their campaigning. However, there is no guarantee that their grassroots supporters will play along in the long run. After all, the question of land, which was at the heart of the 2007-2008 clashes in the Rift Valley between Kalenjin supporters of Odinga-Ruto and Kikuyu supporters of Kibaki-Uhuru, remains unresolved.(61) Those on the ground point to the fact that the 2007-2008 wounds are still too fresh to heal so easily. Furthermore, the historical mistrust between Kikuyus and Kalenjins runs deep. The two communities were in opposing camps in the 2002 elections in which Kibaki trounced Kenyatta, in the 2005 and 2010 referendums, and in the 2007 polls.(62)
It is also widely speculated that should the two be barred from running for president, they might settle for a compromise candidate. The key question is then who they would rally behind? Vice-President Musyoka has been cited as a likely compromise candidate; however, many Kenyatta-Ruto supporters are distrustful of him and see him as an opportunist who is out to benefit from their woes.(63) Alternatively, PNU Alliance Chairman, George Saitoti, could be proposed. Observers claim that Saitoti has been politically strengthened since the confirmation of charges. Although he has been associated with Kenyatta and Ruto under the G7 and PNU alliances, he has so far skipped two PNU Alliance meetings and did not attend the latest Kenyatta-Ruto ‘peace/prayer’ rallies.(64)
Running as a champion of democratic values and a fighter against corruption and nepotism, Odinga’s ODM faces a long road ahead. Although polls indicate that Prime Minister Odinga has a slight lead over his deputy, Kenyatta, 34.7% and 30.1% respectively, Odinga is still recovering from a walk-out by Ruto and his followers.(65) For the ODM, the danger of losing sympathy votes from Ruto in the Rift-Valley is undeniable. Although Odinga has successfully co-opted some Kalenjin Parliamentarians that are not aligned to Ruto, and has thus weakened a potential Kenyatta-Ruto alliance, it will take hard work for Odinga to convince certain voters that he has nothing to do with Ruto’s ICC woes.(66)Ironically, it was the incumbent President and Odinga that pushed for a local tribunal, and in fact those accused by the ICC that agitated for The Hague process.(67) Some analysts have argued that it would work in Odinga’s favour if both Ruto and Kenyatta run, because if they are forced out of the race they could possible unite behind another candidate which would pose a major challenge for Odinga.(68)
Polls indicate that the favourite political party amongst voters is the ODM at 37.3 %, but it is closely followed by the PNU-Alliance at 35%.(69)What is clear is that it will be difficult for any of the major presidential candidates to win alone.
Although it is still early to determine the full impact of the ICC ruling on the forthcoming elections, it does represent an important milestone in Kenya’s quest for reforms. Crucially, however, at the time of publication, Kenya is still in the process of establishing domestic courts to try mid-level organisers and individual perpetrators involved in the 2007-2008 post-election violence.(70) Therefore, the sense of impunity and lack of reconciliation still looms in local communities. The largely peaceful reaction following the ICC ruling on the confirmation of charges should not lull stakeholders into a false sense of complacency; the threat of violence in the next election remains real. When Kenyans head to the polls in the coming elections, it will be important for them to know and feel that justice for the 2007-2008 post-election violence is taking its course. Concurrently, a determinant factor in running peaceful elections is the perception and reality that the elections are indeed free and fair. Elections must be credible to be accepted; they must provide a genuine choice if they are to count and count equally.(71)When violence or conflict occurs, “it is not a result of an electoral process; it is the breakdown of an electoral process.”(72)
Election date still uncertain
Despite the political leadership’s preoccupation with the elections, an exact date is yet to be set. Ending months of speculation, the Kenya High Court ruled on 14 January 2012 that the upcoming presidential election will be held in March 2013.(73) The ruling does, however, stipulate that on the condition of the dissolution of the coalition government, the election could be held in 2012.(74) The date of the next election has been a contentious issue for Kenyans, with Cabinet, Parliament and the courts each attempting to resolve the matter. Most Kenyans have expressed that they want the elections to be held in 2012.(75)
The Sheng generation’s voting power
The December 2007 election saw a record turnout of young voters. Significantly, an opinion poll released on 11 January 2012 by Insight Strategy Solution (ISS), revealed that 50.6% of the voters would be between the ages of 18 and 19.(76) Knowing very well the importance of this constituency, in a meeting held on 11 January 2012 between IEBC and President Kibaki, the latter directed the fast tracking of issuance of identity cards to enable youth to register as voters.(77)Like many African countries, Kenya’s population is dominated by youth. A staggering 70% of the population is below the age of thirty.(78)
Sheng, the language of Kenya’s urban youth, is a witty and cheeky brew of Kiswahili, English and indigenous Kenyan languages, with added dollops of American slang and reggae jargon.(79) It is this Sheng generation, which views itself as distinctly different from its older counterparts, that will be pivotal in turning a presidential hopeful into the Head of State.(80) This generation contends that it is less constrained by the ethnic bulwarks of the older generations. Instead it prioritises many of the concerns that youth harbour on the wider continent - unemployment, poverty, HIV/AIDS, failed social services, lack of meaningful representation, and a disdain for corruption and political patronage.(81) But it is precisely because of these issues that they are equally vulnerable and could thus be swayed by those that are willing to buy their votes. Some of these grievances are the very same grievances that contributed to the 2007-2008 post-election violence and they continue to fester.
War on Al-Shabaab
The military incursion into Somalia has compounded a sense of uncertainty and insecurity. The deployment of Kenyan troops into Somalia’s Juba valley in pursuit of the militant Islamist group Al-Shabaab is the biggest military intervention by the Kenyan Government since independence.(82) What was originally conceived as a “three or four” week endeavour to save Kenya’s crucial tourism industry has now transpired into the incorporation of Kenyan soldiers into the African Union (AU) military mission in Somalia (Amisom).(83) On 11 January 2012, the UN Security Council approved a joint request by Kenya and the AU for the incorporation.(84) This development perhaps helped to temper mixed, but predominantly critical views on the operation in Somalia within the ethnic Somali and wider Muslim community in Kenya.
The real risk exists that Al-Shabaab will carry through its threat to attack Kenya. Militants have already raided towns inside Kenyan territory and carried out killings and abductions.(85) The elections themselves may very well be seen as an opportune time for Al-Shabaab to engage in terrorist attacks in Kenya. Over and above the national security threat this poses, a key issue the next Head of State may need to confront is the damaging consequence that such attacks may have on relations between ethnic Somalis and Kenyans. Current candidates have, for the most part, steered clear of commenting on the war and directly addressing the Somali community in their campaigning.(86) Nor have they noted the insecurity in which the elections will be held given Kenya’s presence in Somalia. The long-term security issues of Kenya as the largest economy in East Africa will need to be prioritised by the candidates.
In a recent trip to Kenya, it was apparent to me that Kenyans are still dealing with the demons and wounds that the 2007-2008 post-election violence exposed. Although some meaningful socio-economic developments have occurred, ethnicity continues to be politicised and widespread corruption and impunity are still well entrenched, while the political elite is inadequately addressing the structural imbalances that permeate Kenyan life. Kenyan youth put it best in their rendition of the well-known slogan – “Karibu Kenya, hakuna matata”- meaning - “Welcome to Kenya, there are no problems.” They instead sarcastically declare, “Karibu Kenya, hakuna matata, hakuna maji, hakuna stima, hakuna gas” – “Welcome to Kenya, no problems, no water, no electricity, no gas.” Until Kenya’s political class has the will to imagine a larger national interest beyond its own, and it decides to aggressively tackle fundamental socio-economic concerns, Kenya will remain threatened by the eruption of election-related violence.
(1) Contact Helidah Ogude through Consultancy Africa Intelligence’s Election Reflection Unit (