President Uhuru Kenyatta has just thrown his deputy a curve-ball:
William Ruto must now try to keep his current coalition in power even as
he cobbles up a wider coalition that can win in 2022. PHOTO | NMG
In 1966, President Jomo Kenyatta amended the Constitution to
force 29 members of the National Assembly and the Senate who had
defected from the ruling party, Kanu, to Jaramogi Oginga Odinga’s Kenya
People’s Union, (KPU), into a series of by-elections that came to be
called “the little general election.”
Kanu won a
majority of the now vacant seats and though KPU won the popular vote,
Jomo Kenyatta was able to leverage the result to further amend the
Constitution and, eventually, decimate the opposition.
Fifty
years later, his son President Uhuru Kenyatta, lacking the legal means
to force his opposition into a similar debacle, rushed headlong into an
election boycotted by his principal opponent, Raila Odinga, and
unwittingly converted what should have been a coronation into a
referendum on his government.
The results — already
controversial because the Independent Electoral and Boundaries
Commission (IEBC) has results from areas that never voted – will almost
certainly damage and weaken Uhuru’s political authority beyond repair.
This
was supposed to be the election that buried Odinga’s political career
like the little general election buried his father’s. Instead, it will
realise none Uhuru’s hopes and bring about all the consequences that a
more reflective leader would have foreseen.
Shrunken electoral mandate
First,
it will bolster Odinga’s political legitimacy as it retrospectively
undermines Uhuru’s earlier claim that he had overwhelmingly won the
election of August 8.
Second, it will strengthen deputy president William Ruto, as Kenyatta becomes ever more reliant on him.
Third,
a weakened Uhuru must become more authoritarian and yet, without the
reservoirs of legitimacy that come from an electoral mandate, he will
find the population increasingly resistant. The upshot will be that what
was initially a political crisis will metastasise, becoming a
constitutional crisis that must undermine the very stability that the
business community craved when they argued for an early election.
Central to Kenyatta’s problems is his shrunken electoral mandate.
The final turnout figures have not been announced. The chair of the
IEBC, Wafula Chebukati, had initially announced a voter turnout of 48
per cent.
No sooner had he done that than he tried to
walk that number back — saying it was “a best estimate” — as results
from monitors in the field showed that this was patently false. On the
most optimistic outlook, the real number will probably be nearer or
lower than 40 per cent. If that turns out to be the case, the
implications are devastating.
In the first election on
August 8, five out of every six registered voters turned out to vote. A
40 per cent — or lower — turnout means that less than three out of six
voters have come out to vote barely two months later.
This
raises six problems. One, the vote is essentially a Kikuyu/Kalenjin
vote, a hugely unsettling political fact in a country of 44 ethnic
groups.
Two, voter turnout among the Kikuyus and the
Kalenjin did not come anywhere near what it was in August. Though
electoral studies show that such a turnout is normal in electoral
reruns, Kenyatta’s opponents will seize on this as proof of, at best,
growing fatigue and at worst, dwindling support for Kenyatta in his own
backyard.
Three, Odinga will spin the low turnout as his doing, evidence, he will say, of a country responding to his call to boycott the election.
Divisive figures
Four,
it will leave Kenya even more divided than it was before: Kenyatta has
been as divisive a figure as his main opponent Odinga. This election has
sharpened those divisions and Kenyatta’s headstrong — some would say
hubristic — refusal to even consider putting off the vote to increase
cross-party trust and improve the environment, will have curdled
political sentiment, perhaps irretrievably.
Five, the result will reenergise Odinga and, thus pumped up, he will be more intransigent to any overtures from Kenyatta.
Six,
and most unsettling from an ethnic voting point, the result in central
Kenya exposes Kenyatta’s tenuous hold on the Kikuyu. The turnout
supports what many always feared, Kenyatta’s base is anti-Raila rather
than pro-Uhuru: Without Odinga in the running, they were not motivated
to vote.
Ruto, Kenyatta’s presumptive heir, will note this with alarm. Can Kenyatta really deliver the Kikuyu vote to him in 2022?
Few unattractive options
Unfortunately,
Kenyatta has few options now and none are attractive. This has exposed
his soft underbelly, serving up a lame duck second term even if he is
able to hold on to the end of his presidency. That has three
implications, each of which he will find unsettling:
One,
looking at these numbers any Nasa leader Kenyatta reaches out to with
promises of goodies so as to outflank Odinga will be coy. Is it
worthwhile to accept a position in an administration at a time when that
seems so obviously like a kiss of death?
Two,
that Kenyatta is serving his last term will fray his own support within
Jubilee, a party teeming with young politicians with political gifts to
burn and years of political life ahead. If they see Kenyatta as a
liability — as these numbers say that he is — their support will be
mostly equivocal and low key, all geared to wait out Kenyatta’s five
years as they consolidate their experience.
Three,
unable to co-opt the opposition, Kenyatta will be thrown back on his
allies, principally Ruto, on whom he must increasingly rely to get his
measures through parliament. Ruto in turn will have two concerns: First,
a legitimate worry — in the wake of this election — that he cannot rely
on Kenyatta to deliver the Kikuyu block and second, a realisation that
though another Kikuyu/Kalenjin alliance remains numerically attractive,
fronting it in 2022 will be fatally toxic in terms of ethnic relations
in Kenya.
At a minimum, Ruto must see that any winning
future coalition must reach beyond Mt Kenya and the central highlands
of the Rift Valley.
Kenyatta has just thrown his
deputy a curve-ball: Ruto must now try to keep his current coalition in
power even as he cobbles up a wider coalition that can win in 2022.
Political business
This
dual play is both a boon and a bane from where Kenyatta sits: In
keeping the current coalition together Ruto will be helping keep
Kenyatta in power but whatever he does to build a new coalition for 2022
will undermine him. 
And then there are Kenyatta’s
“political business” allies, the oligarchs who finance his politics and
the real power behind the throne. Many will already have been thinking
ahead, scouting for politicians to fund for 2022 as Kenyatta’s second
term ends. This election result must have shocked them. Some will
recalculate their risks; some may even defect — if not to the opposition
then to the heir apparent, Ruto — especially if the crisis deepens.
In
a way, this was inevitable: In five years, Kenyatta has done everything
to undermine institutions and empower the “contractor elite” — the
oligarchs — around him.
That he must soon find that
very elite fickle in their support is his own doing. Two thousand years
ago Aristotle presciently said that democracy — together with its
institutions — was safer than oligarchy because oligarchies suffer a
double risk.
First, oligarchs often fall out with each
other and, second— and more usually — they invariably fall out with the
people. A Kenyatta who cannot deliver the goods is ripe for betrayal by
his allies. Thus abandoned, he will be further weakened if the
opposition confronts him with violent upheavals.
Double crisis bites
Some
will think that Kenyatta’s now fragile coalition can survive the coming
turbulence. Perhaps that is so but it seems unlikely. Part of the
problem is that the administration is facing deeper problems that will
feed Kenyatta’s political nightmares. The economy is not doing well.
The
political uncertainty has had an effect on it to be sure, but then so
has the weather, with its knock-on effect on food production. Our
growing debt and its onerous interest repayments will eventually bite.
Given the administration’s appetite for expensive debt — a few other
costly loans are lined up — there is more trouble to come.
Juggling
a tanking economy and fissiparous politics would tax a leader with
better political skills and a more equable temper than Kenyatta, who
started out desperate to be liked in 2013 and now seems keener to be
feared. Without political resources to draw down and short of economic
performance to brag about, he will — at least in the short run — turn to
repression, becoming more authoritarian as the double crisis bites.
Unfortunately,
the authoritarian option is never a good one. First, autocracy
invariably solves all political conflicts violently. Second, its success
depends on the coherence of the ruling elite. Let’s explore each of
these two problems.
Using violence to solve political problems
is both inefficient and unpredictable. It is inefficient because it
means significant investments in surveillance and control. It is
unpredictable because what the state can do, the public can do too.
The
dramatic collapse of the Romanian dictator Nicolae Caeusescu in
December 1989 is a case in point. The dictator had run a vicious and
violent regime. In the face of economic crisis, he imposed a severe
austerity programme that eventually provoked riots in the town of
Timisoara, Romania’s third largest city and a key economic and cultural
centre.
Caeusescu called for a rally in Bucharest, the
capital city, intending to condemn the protestors and check the spread
of discontent. The crowd grew unruly and demanded that the dictator step
down. Caeusescu unleashed his dreaded security forces, the Securitate,
on them but in the week that followed protests flared up across the
country.
At that point, the security forces baulked at
shooting at the unarmed public and Caeusescu then fled Bucharest with
his wife, deputy prime minister Elena Caeusescu, on December 22, 1989.
Three days later he was arrested, summarily tried and executed on
Christmas Day.
The rapid collapse of longtime Tunisian
dictator Zine El Abidine Ben Ali in January 2011, hot on the heels of
violent protests triggered by the self-immolation of Mohammed Bouazizi, a
hawker, on December 17, 2010, following economic and political crises,
underlines the same lesson.
That brings the second point into play: The coherence of the ruling elite. All regimes must strike some bargain with their supporters, implicitly or explicitly.
Repression
— as happened in Romania and Tunisia — forces regime supporters to
recalculate the actuarial risk of losing power. Whether repression
succeeds over time also depends on the co-operation of the security
forces. When there is an economic crisis — such as the one we seem
headed into — and the country is sharply and deeply divided, as Kenya
was and is now more so, there is a dual risk.
The
economic crisis erodes the support of the political elite and the
political divisions fragment the security forces into ethnic militia.
This means that though Kenyatta may be tempted by the authoritarian
option, it is a dangerous and fickle mistress that he will be courting.
Majority rule
Given
this, his advisers — who have been criminally inept in the past — may
suggest that he tries, instead, a softer version of authoritarianism,
what is often called “rule by law” rather than the “rule of law.”
According to Javier Corrales’ essay, Autocratic Legalism in Venezuela this softer authoritarianism has three elements: The use, abuse and non-use of the law in service of the presidency.
Given
his legislative majorities, Kenyatta could find this appealing and
cost-effective. He has already tried it, with some success, in the
recent amendments to the election laws.
In some ways,
Kenyatta will be genetically familiar with this instrumental use of the
law. His father was a master of it. If the constitution did not give him
power to do something that he desired to do, he simply ignored or
amended it. In 1975, for example, he famously amended the Constitution
and then backdated the amendment, all so that he could pardon his friend
Paul Ngei, who had been barred from a by-election because he had
committed an election offence, a crime for which the president could not
pardon Ngei with the constitution as it then stood. 
The
problem with “autocratic legalism” is that it depends on a quiescent
judiciary. Right now, there is a coterie of intrepid judges whom
Kenyatta cannot bend to his will. These judges are backed by an
unforgiving Constitution that, properly interpreted, will nullify the
laws Kenyatta may need to achieve his aims.
Autocratic
legalism then — and the soft authoritarianism that Kenyatta needs to
govern a divided country over which he has lost political control — does
not look like a feasible option.
This brings Kenyatta to the place where he was before this election:
He urgently needs to talk to Raila Odinga. Ill-advised procrastination
and a flawed election have robbed him of his two most precious assets:
Initiative and leverage.
And, sadly, Kenya seems set to lose again, as it did the last time a Kenyatta and an Odinga quarrelled.
Wachira Maina is a constitutional lawyer.
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