The borderlines separating Kenya and Somalia were first drawn in the late 19th century. Like everywhere else on the continent, this was the work of cartographers working for European colonial powers. Across the continent they replaced porous spaces in which people engaged openly across culture, language, religion, kinship, and ethnicity with straight-line geometrics.
East Africa was no exception. For ages, the borderlands in the Horn of Africa conformed to the adage:
Wherever the camel goes, that is Somalia.
Colonial border lines met with fierce resistance. In Kenya the line delineating the Northern Frontier District produced an immediate reaction, sparking the Shifta War soon after Kenya’s independence in 1963. The area is ethnographically dominated by Somalis.
The legacy of that unfinished business has now migrated to the Indian Ocean.
Kenya and Somalia are at loggerheads about the location of their maritime boundary. The claim that Kenya is making cuts off Somalia’s claim. And Somalia’s claim cuts off Kenya’s claim.
At stake is control over a 100,000 square kilometre triangle in the Indian Ocean proven to contain large deposits of oil, gas and tuna.
Legacies of imperial line drawing
Lord Salisbury, the three-times British Prime Minister who presided “over a vast expansion of the British Empire in Africa”, once noted the absurdity of the line drawing undertaken by Europeans to accomplish the scramble for Africa. Colonial powers ceded
mountains and rivers and lakes to each other, only hindered by the small impediment that we never knew exactly where the mountains and rivers and lakes were.
Lord Curzon, Queen Victoria’s Viceroy of India and the man who in 1905 split Bengal into hugely contentious and imperfect Muslim and Hindu areas, called the resulting cartographic Githeri
the razor’s edge on which hang suspended the modern issues of war or peace.“
European line drawing accomplished a kind of economic efficiency in pursuit of colonial administration. But it was indifferent to the huge diaspora and human drama provoked by bisecting and trisecting East Africa.
Winston Churchill as a British parliamentarian and before becoming Prime Minister, justified it in terms of Europe’s civilising mission. In 1907 he rode the 600-mile railway that had been built as part of Britain’s efforts to consolidate the East Africa Protectorate by connecting the port of Mombassa to Lake Victoria Nyanza. He marvelled in his 1908 travelogue,My African Journey, over the engineering masterpiece, which signalled to him
a slender thread of scientific civilisation … drawn across the primeval chaos of the world.
In fact imperial line drawing minted another kind of chaos. This chaos would pit Kenya’s post-colonial state building against Somali’s self-determination and identity politics while spreading tendentious seeds of division across the map of East Africa. Frontier fighting took hold in the Northern Frontier District, and has followed every kink and turn in the borderland, which now finds expression in a simmering dispute out into the sea.
Somalia versus Kenya at the World Court
In 2014 Somalia took Kenya to the Word Court after Kenya failed to attend a third round of delimitation talks.
Somalia wants its sea border to extend the frontier line of its land border in a southeast direction. It bases its claim on the equidistance principle derived from the United Nations Convention on the Law of the Sea.
Kenya claims the border follows along the parallel line of latitude directly east of its shared land terminus with Somalia. The claims overlap contested legal regimes involving the continental shelf, the Exclusive Economic Zone, and extended continental shelf claims beyond 200 nautical miles from the coast.
Kenya has regarded the line parallel to the line of latitude as the border demarcation for almost 100 years. The line mimics the sea border maritime demarcation separating Tanzania and Kenya.
Kenya argued that the two countries had agreed in a 2009 Memorandum of Understanding to settle this dispute outside of the World Court, once the United Nations Commission on the Limits of the Continental Shelf had concluded its examination of separate submissions made by each coastal state.
Counsel for Somalia argued that the memorandum of understanding never created a binding commitment to an alternative method of dispute settlement.
In February 2017, the Court agreed with Somalia and proceeded with the case. Counsel for Somalia claimed that the court has never delimited a boundary on the basis of Kenya’s approach, nor are Kenya’s arguments supported by decisions of other international courts or arbitral tribunals. Rather, owing to its lack of confidence in the merits of the case, Somalia claims
Kenya is looking for a way to avoid the Court’s exercise of jurisdiction.
A few weeks ago, Nairobi abruptly recalled its ambassador to Mogadishu and sent back the Somali ambassador. Kenya’s claim: Somalia purportedly auctioned off shore oil blocks in the disputed sea region to European energy companies.
Diplomats are now working to describe the incident as something of a misunderstanding. European oil companies have also disputed the procurement of such licenses, fully aware that the case is sub judice and the outcome is anything but determined.
A deeper subtext
The bottom line is that Kenya and Somalia are intertwined and need one another.
Some analysts attribute the current diplomatic row to short-term political posturing as Somali regional and presidential elections approach in 2020. However, the longstanding tension over terrestrial divisions bodes ill for a settlement of the sea dispute as long as the adjoining states overlay the problems of colonial cartography with a firm commitment to eating their sovereignty cake and having it too.
Kenyan President Uhuru Kenyatta’s meeting with his US counterpart Donald Trump at the White House carries symbolic as well as real value.
The two leaders have met once before – on the sidelines of the 2017 G7 meeting in Italy. But this is the first official visit to the White House since Trump’s election and since Kenyatta’s highly controversial 2017 re-election.
So why the visit, and why now?
The White House has cast it as an opportunity to deepen the strategic relationship between the two countries, and to advance mutual interests in trade, security and regional leadership by way of reaffirming
Kenya’s position as a corner stone of peace and stability in Africa.
For Kenyatta, it’s an opportunity to reset Kenya’s position as a leading regional actor and Africa’s “ambassador”.
From a strategic perspective, Kenya has been a crucial player in the war on terror given its frontier status with Somalia. It has been a central player in the UN African Union Mission to Somalia force that’s seeking defeat the Al-Shabaab terror group.
Kenya has suffered retaliatory action as a result of its role. Twenty years ago it was one of the first countries in Africa to bear the brunt of Al-Qaeda with a lethal terror attack in Nairobi. This placed Kenya firmly in the position of a strategic player, ensuring the success of the war on terror in East and Central Africa for which the US has strategic interests.
So Kenyatta’s visit will seek to consolidate continuing US military support. This will be through various channels, among them the counter terrorism partnership fund and the combating terrorism fellowship programme. He will also want a commitment to the US’s continued military at Manda Bay and Camp Simba, a Kenya naval base for anti-terrorism operations.
Kenyatta has recently played a lead role as regional broker by hosting a number of peace initiatives in the South Sudan peace process. Despite US reservations, the most recent peace accord appears to be holding, with Kenya taking some credit for the tentative success.
The US will seek to ensure that Kenya continues to play a constructive leadership role and a guarantor of the peace process in South Sudan given its tremendous leverage on that country’s leadership.
Other pressing issues will include trade and foreign direct investment. Here Kenyatta will have to tread carefully given Kenya’s increasingly close ties with China.
And Kenyatta will have his work cut out trying to navigate Trump’s world. How he manages to gain meaningful compromise from an unpredictable and beleaguered host will be keenly watched both at home and far beyond.
Banking on trade
In many ways US-Kenya relations is in uncharted territory. And given Trump’s penchant for bilateralism, Kenyatta will hope to master the art of the deal by minimising the negative impact of “America first” agenda on Kenya-US trade relations.
During Barack Obama’s presidency, imports from Kenya more than doubled . In 2015, 12.3% of US AFRICA FDI went to Kenya. But Trump’s “America first” stance has led to a review of Africa partnerships as well as a renegotiation of bilateral trade agreements.
Amid this policy uncertainty, Kenyatta will want to discuss how to boost trade relations to augment Kenya’s domestic economy given the very broad economic agenda he has set himself to transform the country. Kenya’s economy had suffered from electoral volatility and a slowdown in foreign direct investment, particularly from the US. Kenyatta will be keen to explore how to jump start this with his US counterpart in addition to ensuring the continued robustness of the African Growth and Opportunity Act (AGOA) from which Kenya has greatly benefited.
The Kenyan president can point to the fact that it remains a destination of choice for many US corporations that have established themselves in the domestic economy. These include Coca-Cola, General Electric, Google and IBM.
In addition, China has firmly developed a substantial economic and trade strategic relationship with Kenya – from manufacturing to infrastructure development. This hasn’t gone unnoticed by the US. The wide gauge railway project, among many others, has established Beijing as an indispensable developmental partner.
To reflect this importance, one of Kenyatta’s first foreign trips was to Beijing.
This growing closeness has caused concern in Washington. The US is keen to retain its traditional sphere of influence and is often wary of other players, particularly China, chipping away at it.
With the increasing trade war with China, the US will seek reassurance that its interests in the region will not be compromised by Beijing’s increasing aggressive overtures in Kenya as well as in the region more broadly.
Kenya will start the small scale export of crude oil from its fields in the far northern county of Turkana in June after an agreement on how to share the revenue, averting delays, the presidency said on Saturday.
Tullow Oil and its partner Africa Oil discovered commercial reserves in the Lokichar basin in 2012. Total has since taken a 25 percent stake. A row had broken out after President Uhuru Kenyatta cut the share of the Turkana county government to 15 percent and that of the local community to 5 percent, leaving the rest to the national government.
He then met officials from Turkana at State House in Nairobi to strike a new deal, which will raise the county government’s share to 20 percent and cut the national government’s to 75 percent.
“We now have an understanding that can put Kenya on the map of oil exporting countries,” Kenyatta said in a statement.
The deal will allow a long-delayed law on oil exploration and production to clear parliament, letting exports begin.
“We will intensify our exploration efforts not just in Turkana but in the rest of the country now that we have a legal instrument that can help guide how oil and gas will be handled in our republic,” the president said.
The deal was struck after the national government agreed to eliminate a cap on the revenue due to the county government and the local community, said a senior government official. Officials in Nairobi had proposed to cap the annual allocation from oil exports to Turkana, arguing that the local economy could not absorb a sudden influx of too much cash.
“The clincher was the removal of the cap,” said Andrew Kamau, the principal secretary in the ministry of petroleum and mining.
Kenyan President Uhuru Kenyatta has been re-elected for a second term after securing more than 98% of the vote in a highly-contentious rerun election that was boycotted by his main opposition rival.
The announcement caps months of drama and sporadic bouts of deadly violence following a landmark decision by the country's Supreme Court to nullify the previous election in September, which Kenyatta also won, citing irregularities.
On Monday, Kenya's Independent Electoral and Boundaries Commission (IEBC) announced 56-year-old Kenyatta had received 98.25% of votes cast in the last week's rerun. His main rival, 72-year-old veteran opposition leader Raila Odinga who refused to participate in the poll, garnered just 0.96% of the vote.
Turnout for the election -- in which voting had been indefinitely suspended in several protest-hit constituencies -- was low, with just 38% of the country's 19.6 million registered voters casting a ballot, according to the IEBC's final tally. The IEBC chairman Wafula Chebukati, however, said that he was satisfied the voting body had delivered "a free, fair and credible election."
Poll reveals a deeply polarized Kenya.
The opposition parties, including Odinga's National Super Alliance (Nasa) coalition, now have seven days in which to contest the result by launching a legal challenge, Kenya's Ministry of Information told CNN. The courts then have 14 days in which to rule on such petitions. Kenya's Supreme Court previously overturned the original August 8 results that handed victory to Kenyatta after Odinga claimed the results had been hacked.
When the IEBC failed to provide Kenya's highest court with access to its computer servers, the court ruled the results were fraudulent and ordered a rerun within 60 days. The vote was held on October 26, but Odinga had earlier announced he was quitting the rerun because the IEBC had not adequately implemented reforms.
Odinga urged his supporters to boycott the election, and activists tried to stop the vote. Odinga told CNN on Friday that the low turnout amounted to a "vote of no confidence" for Kenyatta and his administration, adding that the opposition would pursue all legal avenues available to put the government under pressure going forward.
This view was disputed by Kenya's deputy president William Ruto, who on Sunday repeated a claim that low voter turnout was due to "orchestrated" violence, "sponsored" by the opposition party. Odinga, Ruto said, "organized militia" to prevent election officials and materials from their polling stations.
Violent clashes have broken out over the election, with 24 people killed in the immediate wake of the initial vote, according to the Kenya National Commission on Human Rights. At least six have died in connection to the runoff, officials said. The politically motivated violence has renewed tensions between Kenya's ethnic groups, whose bonds are often stronger than the national identity. Kenya has at least 40 ethnic groups.
Kenyatta is a member of the country's largest community, the Kikuyu, originating in the country's central highlands. The Kikuyu have long been accused of wielding strong economic and political power in the country.
Odinga is part of the Luo community, which some say has become increasingly marginalized in recent years.
I remember walking through the rubble of burnt out buildings some months after Kenya’s 2008 post-election violence. Houses owned by ethnic Kikuyu were razed to the ground in the city of Kisumu. A large night club was also raided and then set on fire.
A friend and guide who was showing me around refused to follow me into the ruins. She herself had feared for her life in the chaos that followed that election. Though she was ethnic Luhya, youths had encircled her house in the dead of night, believing her to be Kikuyu and threatening to torch her house. She hid with her son the entire night and eventually the youths went away.
Stopping by a demolished wall I read in paint, “No Raila, No Peace”. This was a reference to Raila Odinga, who disputed the election of Mwai Kibaki as president in December 2007. He is now leader of the opposition coalition National Super Alliance (NASA).
Kenya has just conducted a rerun of the 8 August 2017 presidential elections that were invalidated by the Supreme Court following copious evidence of irregularities. In line with the Constitution, the rerun had to take place within 60 days. And so on 26 October Kenyans went to the polls once more, though not everyone.
Odinga was on the ballot even though he had declared that he would play no part. In the run up to the repeat election, Odinga demanded the electoral commission make reforms that he believed necessary to avoid the previous mistakes. NASA provided a list of “irreducible minimums” that had to be implemented before free and fair elections could be guaranteed.
Declaring that these reforms had not been made, Odinga announced that he would not stand for election. He also called on his supporters to boycott the vote and hold rallies in protest of the electoral commission in the preceding weeks. Turning up the temperature even higher, a day before the repeat election he announced that NASA was no longer a political coalition but a “resistance movement”.
On 26 October, his supporters honoured his call to boycott the vote. This led to a drop in turnout that affected not only his traditional heartlands but the country’s north east and coastal areas as well. This is a contrast to Kenya’s record of extremely high political participation.
Odinga’s call was for peaceful non-participation. But confrontation did mar election day. MPs and other politicians in Odinga’s Nyanza region had, in the run-up to election day, been threatening retaliation against the security forces. Their supporters in four counties created enough disturbance that polling had to be delayed and postponed. Youth gangs were out in force roaming numerous tallying centres to harass both election officials and voters.
More alarmingly still, police brutality was also evident on election day. Over 20 people suffered gun shot injuries in Kisumu alone. Reports indicated that many of those attacked over the course of the campaign period were confronted by the police in slum areas, stoking suspicions that these were extrajudicial killings utterly unnecessary for establishing law and order.
A broken election
What has become a broken election was doomed at the start by the almost impossible time frame given by the Supreme Court. After ruling that the Independent Electoral and Boundaries Commission (IEBC) had made fatal mistakes in the conduct of the 8 August election, it took another 21 days to provide the details of exactly what those mistakes were.
With the 60 day countdown looming, the ground shifted again when the High Court ruled that the election was open to additional candidates, not just the incumbent Uhuru Kenyatta and Odinga.
The back and forth between the courts did not end there. On October 25 the Supreme Court was called upon to decide whether the new polls were being lawfully held. The grounds for this opposition-backed petition was that the IEBC had failed to facilitate fresh nominations.
Only two judges were available to hear the petition; five are required to form a quorum. So the petition was postponed, further destroying the election’s credibility in the eyes of those opposed to Kenyatta.
The institutions steering this election – the IEBC, the courts and parliament – have evidently broken down. They have become the shattered remains through which an iron fist is descending on the country to reestablish political stability by any means necessary.
Shortly beforehand, IEBC Commissioner Roselyn Akombe fled to New York, stating ominously that her fear over the safety of election staff in the field,
was met with more extremist responses from most Commissioners, who are keen to have an election even if it is at the cost of the lives of our staff and voters.
Odinga is partly to blame for the ease with which this iron fist is descending. He started his opposition through the courts but then failed to follow through, switching to mass action instead. He declared he would not contest the election but then failed to submit the relevant form to the IEBC – so there was no legal requirement to have the ballot papers changed.
That was a strategic blunder that inadvertently framed Kenyatta as the one campaigning for Kenyans to have a chance to vote. It’s a strategic blunder that will likely end Odinga’s political career. It also means he cannot subsequently claim in the Supreme Court that the election should not have gone ahead.
NASA’s decision to declare the coalition a “resistance movement” signifies that it believes the IEBC and Kenya’s core political institutions are fully undermined. What they fail to see is that this has a direct effect of splitting the opposition in two.
While the presidential election required a rerun, all other elected positions continue in place. There are MPs, governors and senators of the NASA coalition who will not leave their positions to join a less formalised resistance movement, though they will show their support for Odinga in rhetoric. This breaks the opposition into insiders and outsiders, rendering it even weaker than previously feared.
Kenya's election commission has postponed plans to hold delayed elections in some western constituencies where voting has not taken place. Protests and security concerns for staff are the main reasons for the delay.
Wafula Chebukati, head of the election commission, has postponed plans to restage the presidential election in areas hit by polling-day protests. They would be delayed "to a further date," he said on Friday.
"The commission has deliberated on the various incidents happening in some parts of the country and has postponed the elections scheduled to take place tomorrow, Saturday, to a further date to be announced in the coming days," Chebukati said.
In the western port city of Kisumu on Lake Victoria, police clashes with demonstrators turned deadly on Thursday afternoon. Protesters blocked streets, started fires and threw stones at security officers, who used tear gas and then fired into the crowds. Four people were killed and at least 50 others injured. Kisumu Governor Anyang' Nyong'o said that his government would not cooperate with the resumption of the vote on Saturday while the region was in "mourning."
Only 6.55 million Kenyans went to the polls for the country's re-run vote, Chebukati said on Friday, meaning turnout was a dismal 34.5 percent. Turnout for the August ballot that was annulled by the Supreme Court had been 80 percent.
The low turnout was likely due to a boycott of the vote by most of the country's 19 million registered voters, including opposition candidate Raila Odinga, who called it "a sham election." The deeply divisive election on Thursday was marred by protests and violence that left at least four people dead and dozens more wounded.
The first election in August 8 ended with a victory for incumbent President Uhuru Kenyatta with 54 percent of the vote. Violence broke out after the opposition accused Kenyatta of vote tampering, leaving 37 people dead in a country still divided by ethnic loyalties.
However, a few weeks later, on August 28, Kenya's Supreme Court listened to arguments presented by Odinga on alleged irregularities and allowed an audit of the vote. The results of the audit led to the court voiding the election. Although he was instrumental in having the vote annulled, Odinga announced on October 10 that he was boycotting the second election, citing fraud within the Independent Electoral and Boundaries Commission (IEBC), which is run by Chebukati.
Elections in Kenya have often been tense affairs, with many avoiding the polls for fear of violence. Widespread unrest after the country's 2007 election led to months of bloodshed that cost some 1,300 lives and displaced hundreds of thousands.
es/ks (AFP, Reuters)
Before Kenya’s August 8 general election, opposition candidate Raila Odinga promised to be a transitional, one-term president. Uhuru Kenyatta, meanwhile, was gunning for a second and final term. Both candidates’ political legacies were at stake.
But the nullification of the presidential election has thrown Kenya into uncharted territory. It’s been made even more unpredictable by Odinga’s withdrawal from the repeat election slated for October 26.
Odinga withdrew because, he claimed, the election commission refused to meet nine demands he made as preconditions for a credible fresh election after the August 8 poll was invalidated by the Supreme Court.
The political uncertainty is having a negative impact on the country’s economy, as well as its political stability.
The hard-line positions adopted by both sides have created a deep rift between the supporters of Kenyatta’s Jubilee party and Odinga’s National Super Alliance. To make matters worse, the police have repeatedly used excessive force to contain National Super Alliance protesters who have clashed with Jubilee supporters during demonstrations.
These protests could very easily escalate into tribal violence given the ethnically divisive nature of Kenyan politics.
Election commission to blame
Kenya’s current political crisis can be attributed to the ineptness of the electoral commission. The Independent Electoral and Boundaries Commission mishandled the August 8 election. After the Supreme Court invalidated the poll, infighting among commissioners dented the commission’s image even further. The court found the commission committed grave irregularities and illegalities during the August election.
The commission has also aligned itself with the Jubilee Party. For its part, the party has often shielded the electoral body from criticism. For example it blamed the Supreme Court for invalidating the election. All this entrenches the notion that the commission is not exercising an independent mandate.
The commission has focused too much on short term political stability. It hasn’t considered the impact of another bungled election on Kenya’s long term democratic gains. It was given 60 days by the Supreme Court and the country’s Constitution to hold a second poll, and rushed into this process without any introspection.
And divisions between the commissioners are widening. One of them, Roselyn Akombe, has resigned and says the commission’s partisan nature makes it impossible for the body to hold a credible poll. Wafula Chebukati, the commission’s chairman, responded to Akombe’s resignation by saying he can’t guarantee that his team can hold a credible election.
All this suggests that the commission could make the same mistakes it did leading up to August 8 and that the second poll will also be a sham. This would drag Kenya further into political turmoil and lead to more economic strain on the country.
Unlike its opposition, the ruling Jubilee party is keen to participate in the October 26 election. It even used its majority in both houses of Parliament to push through amendments to the election laws.
These amendments dilute the electoral commission chairman’s power and also give priority to manual voting over electronic processes. Confusion over manual processes played a large role in pushing Kenya into post-election violence during the contested 2007 polls.
Jubilee has not consulted widely on these amendments, and has been widely condemned for pushing through changes to election law so close to the second poll. The changes all appear to be knee-jerk reactions to the Supreme Court’s ruling, and a push to ensure Kenyatta bags a second term.
Meanwhile, Odinga and his party have maintained that elections will not be conducted on October 26. To add fuel to the political fire, the coalition he leads has escalated its weekly demonstrations to daily countrywide protests.
The next stage of this battle is likely to play out in the Supreme Court. The National Super Alliance still has the option to return to court to either stop the October 26 poll or challenge its outcome.
But the solution to Kenya’s ongoing constitutional crisis is not legal. It is political. The country is deeply divided along ethnic and political lines. If the electoral commission goes ahead with an election that doesn’t include Odinga, the process is likely to be deemed illegitimate.
It’s obvious that the electoral commission has been captured by partisan politics. It is operating in a hostile political environment and there is enormous division in its ranks.
In the worst case scenario, Kenya could degenerate into the kind of ethnicised election violence last seen in 2007. The feeling of disenfranchisement among some ethnic communities, who have felt marginalised by successive regimes since independence, has once again emerged in public discourse.
Assessing statements made by the electoral commission in recent days it’s clear that it’s unable to hold a credible election. On the other hand another legal battle would only drag the country into further political uncertainty.
What’s clear therefore is that a political settlement is needed to reconstitute the electoral body before holding a fresh election. This might involve forming a caretaker government to give the electoral commission time to effect the necessary reforms.
The leader of Kenya’s opposition coalition, Raila Odinga, has withdrawn from the repeat presidential election ordered by the country’s Supreme Court. Only two candidates were scheduled to compete in the upcoming poll, the other being the incumbent president, Uhuru Kenyatta.
A day after Odinga’s withdrawal, the Kenyan High Court ruled in favour of including another presidential candidate in the ballot, meaning that the election is now likely to go ahead. The new candidate, Ekuru Aukot, was an interested party in the Supreme Court case that invalidated the August 8th election.
Odinga’s pullout came in protest at the perceived inability of the Independent Electoral and Boundaries Commission (IEBC) to carry out a free and fair election.
In the recent petition to the Supreme Court, his National Super Alliance (NASA) accused the electoral commission of having failed in its duties to conduct an election, and demonstrated clear evidence of irregularities such as missing and forged electoral forms.
The Supreme Court found in favour of the opposition coalition, and so fresh elections were scheduled within 60 days. While there is consistency to Odinga’s distrust of the electoral commission, his position holds no legal consistency. The opposition made a petition to the Supreme Court and should therefore abide by its ruling. The court found that the electoral commission failed to conduct the election appropriately, but that there were no grounds for saying Kenyatta’s coalition, the Jubilee Alliance, had been the ones to rig it.
Odinga’s opposition coalition petitioned the courts and got the result they wanted. They should therefore have stood by the ruling and continued to follow constitutional channels. By withdrawing Odinga is terminating the country’s democratic processes. If the need for IEBC reform was enough reason to delay the election further, a case could have been brought to the Supreme Court on this basis.
The IEBC is a commission created by the Constitution, meaning its duty to conduct free and fair elections is a democratic fundamental. As such, political opposition to its operations has a clear legal remedy. Instead, Odinga’s abandonment of the process has handed legal credibility to his rivals.
Kenya is in uncharted territory. The group that sought free and fair elections through lawful means – the opposition coalition – has now abandoned trust in the constitutional commission set up to bring about the poll.
In making the decision Odinga has also signed a death sentence on his political career stretching back 40 years.
A history of hard fought battles
Odinga has had a lot of practice over very many years in navigating the difficult path between acting according to the rules of the system and opposing manipulation of those rules.
In 2002 he joined a broader inter-ethnic coalition to force leadership away from the Kenya African National Union (KANU). In power since independence in 1963, KANU had consistently thwarted the emergence of free and fair elections in Kenya in the 1990s under President Daniel arap Moi.
But those who initially spearheaded the inter-ethnic alliance also seemed to abuse the system to their advantage in the 2007 elections. Odinga led popular protests against the swearing-in of President Mwai Kibaki in complaint of this. The standoff plunged the country into one of its worst periods of political violence, with over 1,000 dead and hundreds of thousands internally displaced.
In 2013 Odinga took the disputed election results to the courts. But the Supreme Court allowed Kenyatta’s election to stand.
Many therefore felt that Odinga had finally got the democracy he’d fought for when the Supreme Court invalidated the 2017 results and ordered fresh elections. But that conclusion appears to have been premature. Odinga’s exit from the democratic process means opposition supporters’ faith in the system is at the point of collapse.
Odinga has been consistent in his criticisms of the electoral commission. And he has acted in a principled way. He should be praised for both.
Indeed, the failure of the electoral commission dates back as far as the constitutional referendum in 2010. A British court found that electoral commissioners accepted bribes from a UK firm to win the contract for printing ballot papers. In the 2017 elections, the accusation was that the local tallies did not match the central tallies being received electronically in Nairobi. The physical forms that would have reconciled the differences were then said to have been lost.
Despite the catastrophic failure to conduct this year’s election appropriately, the electoral commission chairperson refused to stand down, reducing public credibility in the institution to nil.
Complete new election?
The NASA coalition has tried to substantiate its position. Technically-speaking, they say, their withdrawal means no election can take place, and so a complete new election should be organised. So rather than Kenyatta being handed victory on a plate, a longer time for fresh elections would be given, with all allowed to compete as if it were a very first round. That would provide a breather of at least 90 days, with additional time for parties to nominate new leaders.
But such a legal argument is fanciful. It is based on a misreading of article 138 (8) (b) of Kenya’s Constitution which says that a complete new election must be organised if one of the candidates dies during the campaign period. The NASA coalition are arguing that their withdrawal from the elections is an abandonment that is forced by the failure of the electoral commission, and therefore tantamount to the death of a leader during the campaign period.
If they believe this is a solid legal argument, they can again petition the courts to invalidate the preparations for the fresh elections. But the legal argument is weak, and I doubt they will try this route.
The twist that NASA did not expect was the High Court ruling that a minor candidate is allowed to take the place of Odinga. That will mean an election that gives greater validity to Kenyatta’s inevitable victory – an enormous blow to Odinga’s strategy.
The High Court decision to include Ekuru Aukot is based on the fact that he was part of the original case that disputed the 2017 election results. But the court has made a grave error of legal judgment: Aukot was an ‘interested party’ to that case, not one of the ‘petitioners’. This is, in legal terms, a big difference. If he was a successful petitioner in the Supreme Court case, and therefore a valid candidate now, the fresh elections should have involved him from the start and been contested by three candidates.
One cannot simply add candidates as one goes to make the election look competitive.
In any case, the inclusion of Aukot will be of no consequence to the result. In the disputed 8 August polls he received a mere 0.18% of the vote, making him the 5th placed candidate. That compares against a supposed 54.17% for Kenyatta.
The electoral commission will, however turbulently, take forward the court judgments and hold an election between Kenyatta and Aukot. The polls will certainly mean Kenyatta is declared President of Kenya for his second term in a row.
This is the fault of Odinga who has taken the decision to exit lawful processes prematurely. The road to competitive free and fair elections in Kenya extends ever longer into the horizon.
After a Supreme Court ruling that invalidated Kenya’s August 8 presidential election, the country now finds itself in a moral predicament between political stability and electoral credibility.
On one hand, the ruling that ordered a fresh presidential election was a win for the democratic process the world over. The court found that Kenya’s Independent Electoral and Boundaries Commission was in violation of constitutional procedure. It also found that the commission had violated election law and in so doing impugned the credibility of the election.
On the other hand, the court’s decision has ushered the country into a period of political instability. Where it would have closed the chapter on the 2017 election cycle, it is now gearing up for a repeat poll slated for October 26.
Kenyans now find themselves in a tight spot made even more uncomfortable by demands being made by Raila Odinga and his National Super Alliance. The opposition is insisting that certain conditions, including reconstituting the election commission and reprinting key election documents, must be met before the October 26 election can be held.
The opposition’s hard stance could result in a delayed election. This could also happen if OT-Morpho, the French biometrics firm which supplied the electoral commission with its electronic voting system fails to have a new system ready in time. It’s indicated that it won’t. If indeed the key issue with the last election was that the voting system was not “simple and verifiable” as demanded by law, then any delays could be interpreted as being in the interests of a free, fair, credible and transparent election.
But for those who argue that no electoral process can be perfect, and that the August 8th poll was merely dogged by minor and inadvertent errors, then it begs the question: what is more important, electoral credibility or political stability?
The Supreme Court prioritised electoral credibility by invalidating the presidential election result on grounds that the election commission had committed illegalities and irregularities.
In doing so, it broke ranks with foreign election observer missions which had concluded that the presidential election was credible. By and large the Supreme Court ruling was a win for Kenyans and the rule of law. The court took the opportunity to audit the electoral process for transparency and to define the parameters of a credible election.
But its ruling raised questions of its own. For instance, the court ruled that the electoral commission didn’t strictly adhere to election procedure as set out in law. It also held that there had been tampering with the commission’s electronic voter management system. But it mandated the same commission to carry out a fresh election within 60 days.
Because the court gave no direction on the reconstitution of the commission, the petitioner Odinga and the respondent President Uhuru Kenyatta are now at an impasse over who should remain at the commission.
Those who disagree with the Supreme Court ruling see the court’s decision as a subversion of the will of the Kenyan people. For them, the ruling was a destabilising force which didnt’ reflect the people’s decision.
Giving credence to this argument is the fact that Kenya is viewed as the economic hub of East Africa. If the country does not return to normalcy as quickly as possible there will be a ripple effects, including economic, across the region.
On top of this, Kenya finds itself in a precarious situation because the executive is at odds with the judiciary. Kenyatta’s Jubilee Party has the majority in both houses of Parliament. It is therefore within its capacity to limit the independence of the judiciary should it continue to feel aggrieved by the Supreme Court decision. This could happen through a parliamentary referendum as per Article 256 of the Constitution and would involve members of parliament deciding to amend the constitution without a popular vote.
But by far the most pressing threat to Kenya’s continued political stability is the possibility that the Supreme Court may have created a situation in which Kenya could remain in election mode ad infinitum. Nothing stops a new petition from being filed should one of the candidates contest the next poll results.
If we look at Kenya’s neighbour Rwanda we see an example of a head of state that’s arguably prioritised a semblance of political stability over election credibility. Paul Kagame was recently reelected for the third time. Some argue that his rule has benefited Rwandans because the country has shown better socio-economic outcomes than most African countries.
But there tensions simmer and in the absence of electoral credibility, Rwanda’s political stability may be skin deep.
Rethinking Kenya’s election system
The Kenya case raises questions about elections in Africa and whether they are a force for political stability or instability. I would posit that Kenya has made great strides to improve electoral credibility since its catastrophic 2007 election.
In conclusion, election credibility and political stability aren’t mutually exclusive.
There should be a positive correlation between democracy and the improved well being of a state and its people. But in a country like Kenya with 40-plus tribes, the more populous tribes will always take advantage of their voting might, while the less populous ones struggle to compete. The system just does not work in their favour. It would seem therefore that they are locked out – not by choice but by circumstance.
So, does a majoritarian, “winner-takes-all” system suit an ethnically diverse society like Kenya’s?
Perhaps, not. I’m persuaded that there needs to be a re-imagination of electoral democratic practices in Africa. Kenya should take recent events as an opportunity to clean up its institutions and electoral system. If it doesn’t, future polls will continue to offer up a point of diversion between electoral credibility and a tenuous political stability.