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Daily Nation : February 16th 2014
SUNDAY NATION February 16, 2014 made, despite the ongoing threats Fear of ethnic unrest, the Constitution, peace messages and devolution of power ensured that the 2013 elections were peaceful. But can these forces hold the peace together to 2017 and beyond? likely to take a conservative position, in part because of the pressure from the Jubilee Alliance to avoid a run off, and in part because annulling the election based on procedural failures would have set a dangerous precedent, because Kenyan elections are typically procedurally faulty. Given this, it was always going to take a “smoking gun” of clear and undisputable evidence of systematic election rigging to force the court’s hand – and this is what Cord, operating under intense time pressure, could not provide. Having realised the limitations of the system, Cord leaders had little option but to accept it. Despite their limitations, the IEBC and the Judiciary continued to enjoy considerable support and Mr Odinga would have been accused of both inconsistency and sour grapes had he refused to abide by the court’s decision. Decentralisation The Constitution also helped to ensure FILE | NATION Voters queue to vote on March 4, last year, in Nairobi. Unlike in 2007, there was no widespread violence in the last General Election even though some of the issues that had caused the violence were present last year. that was extremely problematic. Because many aspects of the new Con- stitution were not implemented by the time of the polls, and IEBC failed to deliver on its early promise, Kenya’s new institutional arrangements ultimately disappointed Cord . All told, more components of the electoral system failed in 2013 than in 2007. It was, therefore, unsurprising when Cord rejected the official results and sought to contest Mr Kenyatta’s election. In contrast to 2007, though, Mr Odinga did not take his protests to the streets but to the courts. In part, this was because of a lack of support for mass protests as a result of the impact of the peace narrative discussed above. But Odinga’s willingness to contest the result through official channels was also shaped by his belief that although the electoral commission had failed him, the Supreme Court would come to Cord’s rescue. Ahead of the verdict, he said “Let the Supreme Court determine whether the result announced by the IEBC is a lawful one. We are confident the court will restore the faith of Kenyans in the democratic rule of law.” The new reforms also meant that there was far less support for the idea of civil disobedience than there was in 2007. In that election, European Union election observers openly questioned the result of the election and popular frustration against the Kibaki regime created an environment within which Mr Odinga had considerable domestic and international support for street protests. The situation was different in 2013. Keen to support Kenya’s new political institutions, most electoral observers pulled their punches, while many Kenyans concluded that a peaceful poll was more important than a fair one. Under these conditions, doing anything other than taking the results to the Supreme Court would have undermined Odinga’s stature as a national leader. In this way, the Constitution made a peaceful election more likely. But Cord leaders were ultimately disappointed: their petitions were not only rejected, but dismissed in a perfunctory statement that, instead of recognising the many failures of the electoral process, simply stated that petitioners had failed to show that the final outcome was the wrong one. To some extent this was inevitable. The court was always a peaceful election in other ways. Most notably, devolution – one of the more popular aspects of the new Constitution – appears to have increased the willingness of opposition supporters to accept the results. Although it is not yet clear how well the process of decentralisation is actually being managed, the promise of self-government helped to reduce the stakes of the election. In 2007, ODM supporters had no consolation when they lost the elections – from the announcement of Mr Odinga’s defeat until the power sharing deal was signed, they had no stake in the political system and no reason to give it their support. In 2013, things were different: many of those who lost nationally won locally. Significantly, largely the parties of the Jubilee Alliance won very few seats in any of the areas with a significant Cord support base – the former Coast, Nyanza, Western, and Eastern provinces. Mr Odinga’s ODM 93pc The level of public support IEBC enjoyed just before the March General Election. The Judiciary too enjoyed considerable support. won 16 governorships, eight more than Mr Kenyatta’s TNA, and captured the governorship in Nairobi – the most important sub-national position. This meant that although Mr Odinga’s supporters in these areas lost nationally, they were able to celebrate locally because they are now typically governed by people of their own ethnic community and political persuasion. In this way, the new county governments suggested that not all of the elections had been rigged, which in turn eroded popular support for mass protests. The costs of peace Taken together, the alliance of the Ka- lenjin and Kikuyu communities within the Jubilee Alliance, the emergence of a peace narrative that undermined the legitimacy of mass protest, the introduction of more political institutions following constitutional reform, and the moves to devolve power way from Nairobi, combined to make a peaceful election possible. But what are the consequences of peace? Although the desire to avoid a replay of 2007 was understandable, the legacies of the elections are not all positive. To start with, the peace in the Rift Valley is tentative and depends on the continued success of the Jubilee Alliance. There has been widespread speculation about whether the ICC proceedings – and more specifically the collapse of the Kenyatta case while the Ruto trial continues – will undermine the stability of the coalition. I suspect that the Alliance will prove to be more stable than some of the sceptics have predicted, because Mr Kenyatta cannot effectively govern without the support of the MPs, senators and governors that are loyal to Mr Ruto. But whatever it happens between now and the next election, the Alliance will face a major crisis down the line. Even if Jubilee retains power in 2017, constitutional term limits will prevent Mr Kenyatta from contesting the subsequent elections, which is when Mr Ruto will demand that his Alliance partners support his presidential bid. If Mr Ruto feels that his loyalty has not been reciprocated it will be the end of the Jubilee Alliance, and the likelihood of political violence will increase dramatically. Kenya’s peace thus remains a fragile one. The legacy of the peace narrative is also problematic. Peace is of great importance, but so is democracy and the right to protest. Turning a blind eye to democratic backsliding in the name of “not rocking the boat” may contribute to short-term stability, but it also facilitates democratic backsliding. In doing so, it sows the seeds for future violence and instability. As John Githongo has written, the “tyranny of peace messaging … led many to feel Kenya slaughtered justice at the altar of a temporary and deeply uneasy apparent calm”. In the wake of the elections we have seen legislation that has sought to undermine the position of the media and NGOs. Jubilee has also turned its ire on ordinary Kenyans, reviving the rhetoric of the election in an attempt to delegitimise popular protest against its own questionable performance. Once again, the familiar tropes of the peace narrative and “anti-colonialism” are being used to constrain freedom of speech; it is almost as if Robert Mugabe has taken up residence in Nairobi as the government’s political adviser. The failure of Kenya’s political institu- tions to deliver has also left a problematic legacy. Cord supporters who campaigned hard for constitutional reform are now questioning whether it was worth the effort. The Supreme Court has yet to rebuild its reputation in the eyes of many Kenyans, and some key aspects of the Constitution have still not been implemented. This is deeply worrying, because it suggests that come the next election the opposition will once again go into polling day expecting the process to be flawed. It was precisely this sort of pervasive mistrust that laid the foundations for the Kenya crisis of 2008. The future Much as in 2012, then, Kenya finds itself at a crossroads and it is not easy to predict what will happen next. For all of the limitations of Kenya’s young democracy, the country may be undergoing a gradual process of democratic consolidation. Although incumbents have constantly sought to block reform, Kenya has made remarkable progress over the last 20 years. President Moi may have implemented the most minimal reforms he could get away with, rigging himself back into State House in 1992 and 1997, but over time his decision to lift the ban on opposition parties changed the face of Kenyan politics. Over five successive elections, Kenyan voters and opposition parties have converted political openings into political change. Moreover, it is important to keep in mind that although terrible, the violence of 2007 did not terminate the process of gradual reform. Rather, it created the conditions under which Kibaki and Odinga – and the vast majority of Kenyans – could agree on the 2010 constitution, a landmark in Kenya’s history. The failings of the electoral system in 2013 notwithstanding, the cumulative effect of these changes should not be underestimated. From a limited and weak media in 1992, the Kenyan press has become one of the most vibrant on the continent. With the exception of the constraints imposed by the peace narrative, opposition parties have been able to campaign. Moreover, while presidential elections have typically been won by the “incumbent” candidate opposition parties have consistently polled well and secured around half the seats in the legislative. It is, therefore, clear that progress towards democratic consolidation has been made, if unevenly and with ongoing threats. We, therefore, end where we began. Kenyan politics continues to be shaped by two processes that have occurred sideby-side since the early 1990s. In one, the manipulation of ethnic identities around election time has increased inter-communal mistrust, exacerbating the prospects of electoral violence. In the other, a gradual process of reform has moved the country a long way from the dark days of Moi. It is now possible to openly criticise the government and to defeat the President’s party in contests for governor, senator and MP across the country. Dr Nic Cheeseman is the Director of the African Studies Centre at the University of Oxford. For the full range of articles on Kenya and much more, go to http: //www.tandfonline.com/loi/rjea Sunday Review 19 FILE | NATION President Uhuru Kenyatta and his main challenger in the 2013 elections Raila Odinga at State House in April last year. A sustained peace narrative ahead of historic elections undermined the legitimacy of civil unrest.
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