President Uhuru Kenyatta (centre) with his deputy William Ruto (left) and opposition leader Raila Odinga. FILE PHOTO | NMG
The Supreme Court’s decision to uphold Uhuru Kenyatta
re-election as president in the poll held on October 26 this year has
put an end to what some feared was shaping up to be an infinite regress
of election-petition-nullify-election again.
That
finality will neither calm the incendiary passions inflamed by the
August 8 election nor bring the protagonists, Uhuru Kenyatta and Raila
Odinga, any closer in what looks set to become a full-blown political
crisis.
The good news, if that, is that the end of the court drama leaves politics where it was on October 26.
The
bad news is that the Court’s even-handedness, that is, splitting the
judicial losses one apiece for Jubilee and Nasa, hardens each side’s
position and probably makes the standoff intractable, setting the stage
for an even more controversial election in 2022.
On its part, the Court has won few new friends this election season.
Critics
of its first decision – including Kenyatta and Deputy President William
Ruto – dismissed the judges as crooks and Nasa flunkies.
Those
who dislike the second one – including some NGOs – think that it
exposes the court as a cynical confederacy of elites who have now
baulked at destabilising the status quo. The more charitable, like Nasa,
say that the judges were intimidated by Jubilee to give a compliant
decision.
In truth, the political crisis in Kenya is
likely to deepen and no one, not Kenyatta or Odinga, not even the
Supreme Court, can claim victory. Here is why.
Agony and ecstasy
Though
Kenyatta seemed as ecstatic about the recent Supreme Court decision as
Odinga was about the one made on September 1, in truth both knew from
the very first that neither the standoff nor the polarised nature of
Kenya’s politics was ever not going to be settled by arguments in court.
Odinga went to court to vindicate his belief that the election was stolen, not to solve the underlying political problem.
Once
he won his victory he had to boycott the repeat election unless the
IEBC made changes that meaningfully addressed the illegalities that the
court found.
Without that, Odinga could not
participate in a repeat election and convincingly allege fraud again. By
winning the petition challenging the first election, Odinga raised the
ethical bar for the repeat election. But by raising that bar, he
undercut his own ability to participate in that election if the bar were
not cleared.
It is now Kenyatta’s turn to be
jubilant. He must know that the repeat election was deeply flawed but
the Supreme Court decision removes part, if not all, of the sting in
Odinga’s claim that the election on the 26th was a sham and
illegitimate.
It also helps him and his party to shift
discussion from that election’s political legitimacy to its legal
legitimacy. To make that narrative plausible, he must now reaffirm the
independence of the judiciary.
The Supreme Court thus
finds stranded in a bizarre no-man’s land, praised for its independence
and standing on principle for making two decisions that, in effect,
cancel each other out.
Deal-making
The
political effect is that the protagonists will remain stuck in the rut
and their mutually hostile supporters will stay angry and militant.
Odinga,
if he means to remain true to his base, has no choice but to escalate
his campaign against Kenyatta, who must, in turn, remain intransigent.
His olive branch to Nasa on inauguration day was telling: it was a
brusque, iron-fist-in-a-velvet-glove affair, more warning than
hand-of-friendship.
In truth, it is hard to see how
the two can find a meeting point. What Kenyatta could offer Odinga,
Odinga couldn’t accept without risking the wrath of his supporters. What
Odinga would want, Kenyatta could not offer without endangering the
deputy president’s prospects in 2022 and facing the hostility of his
base.
Why is this so? Any deal-making between Kenyatta and Odinga is now hostage to succession politics.
The
deal-maker in Jubilee is William Ruto, a man with a Florentine instinct
for political intrigue. Yet Ruto’s interests will inevitably be damaged
by any deal that Kenyatta makes with Odinga, especially if the deal
involves power sharing.
Do the calculations. Kenyatta
is serving his last term. Much of what he could offer Odinga would
entail positions in government, that may involve changes to the law,
including perhaps even the Constitution.
There are two
problems with that. First, Odinga has been here before, in 2008. He
wants neither the label of “career Prime Minister” nor an unrewarding
climbdown from his elevated moral claim that the August 8 election was a
fraud.
His supporters have taken a serious beating
and 62 people have died in a brutal police campaign against Nasa.
Odinga’s argument for an interim government followed by a truly honest
election looks like the minimum he can sell to his base.
Kenyatta
on the other hand cannot sell an interim government followed by a
mid-term election to his base, nor could he, even if he wanted to,
persuade Ruto, who has his eyes firmly on the presidency in 2022, to
accept a government of national unity in which positions (and any new
ones that might be negotiated with Nasa) are shared equally between
government and opposition.
A negotiated settlement
would be a three-way sharing of power, between Kenyatta, Ruto and
Odinga. Everyone gains but Ruto: Kenyatta wins the calm he needs to work
on legacy projects and Odinga worms his way back into government.
Mr
Ruto’s hand for 2022 is completely weakened especially because the only
way to create room for Odinga’s team would be to sack some of Ruto’s
allies.
Ironically, then, even though Ruto and Odinga
are instinctual politicians and inveterate deal-makers, in this crisis
that seems made to order for their talents, there are no mutual
interests.
Worst-case scenario
What then? The worst-case scenario is that the country stumbles its way to 2022 and holds yet another divisive election.
In
the meantime, the economy takes a beating as revenues shrink and debt
repayments bite. Kenyatta could limp his way to the end of term but then
he would have no legacy. He has weakened Kenya’s democracy partly on
promises of development. If the economy fails, he cannot redeem that
pledge.
The best-case scenario is that a new coalition
of leaders emerges, perhaps from among the Governors, the business
community, the clergy and civil society that refocuses debate on what
creates Kenya’s fractious elections: An ethnically divided society and
its winner-take-all presidential system.
Studies show
that in deeply divided societies, political power is a do-or-die affair:
It determines not just who is included or excluded but also who gets
pubic goods and services. Given this, ethnic groups cannot separate
electoral defeat from communal exclusion and economic loss.
In
parliamentary systems, ethnic elites form coalitions that bargain for
power and opportunities for their people, which enhances feelings of
justice and inclusion. In Kenya, exclusion is also territorial because
identity groups live in defined regions. This must be fixed if Kenya
wants to make elections less deadly.
Thus far, the
politics: What of the Supreme Court? There are those who think,
especially in civil society, that this case has irredeemably damaged the
Supreme Court.
That is a supposition grounded more in
hope than fact. In truth, the Court’s unpredictability has probably
permanently unsettled the political class. At some level, that is a good
thing. The idea that the Supreme Court is a toady of the government of
the day, as the 2013 petition led many to believe, has been proved
false.
When the court nullified the election. the
reactions on both sides were hysterical: The one of uncontrollable joy,
the other of unbridled rage. It was inevitable that if the pendulum
swung the other way, the two sides would trade positions but the
emotional intensity of their different reactions would stay the same.
An incoherent claim
The
Court was certainly right to reverse the central holding of the 2013
presidential petition and to hold that an election that has not been
held in substantial compliance with the law is no election at all and
must be nullified.
Court critics of the first decision
carped that elections are about numbers. That is an incoherent claim
even on its own terms. Even those critics know that though elections be
about numbers, only numbers that come out of a process authorised by law
count.
If not, then there is nothing to stop an
electoral body from conjuring up results out of a telephone directory or
from the headstones at the cemetery. Critics will now wait to see
whether the Court remains true to the reasons that it gave for
nullifying the election of of August 8.
Of interest to
them are the substantial irregularities that they claim that the IEBC
committed on October 26. Some of these irregularities are much the same
as those that were involved in the earlier case. But there are also new
ones.
There is IEBC’s confusing stance on the 25 or so
constituencies, mainly in Nyanza, in which no elections took place. The
Commission initially reported that it had postponed elections in these
constituencies. Later, it turned out that those elections had actually
been cancelled, two actions with vastly different legal consequences.
As
in August, there are discrepancies in the results shown in the forms
from the polling station as against the forms at the constituency level
and then again between the results in both sets of forms and those
posted on the Commission’s public portal.
Finally,
IEBC did not explain why KIEMs kits have logs for days other than
polling day, the only day on which the kits should have been active.
Those who don’t trust the results from October 26 think that these
irregularities prove systematic fraud and that the Court, by unanimously
upholding the second election, must inevitably reverse the reasoning it
gave for its September 1 decision nullifying the election of August 8.
Without
pre-empting what the Court will say in its full judgment, the critics
are missing an important point. It was always going to be much harder to
nullify a second election, this for two reasons:
One,
the Constitution is not explicit about what happens if there is a
second invalidation. Most people assume that the process is cyclical,
that is, that the Court must keep nullifying illegal elections until a
lawful election is held. But the Constitution does not say so
explicitly.
Why should the Court assume a potentially
infinite regression on a legal question this momentous? Moreover, this
time round, the Court would have had other reasons for self-doubt.
They
had been viciously attacked in the much clearer first case, what would
have happened this time? And what would they have ordered once they
nullified the second election?
Two, the critics
overlooked the fact that once the Court nullified a first election, the
threshold of illegality in that case would become the benchmark for the
future. This means that a future election was unlikely to be nullified
unless the Court believed that the illegalities had reached, even
surpassed, that benchmark.
Lawyers involved in the
second petition should have known that a second election would not be
nullified unless the illegalities and irregularities met the threshold
of the election of August 8. On the whole, the Supreme court is pretty
much where it was on the August 8: Trusted and distrusted in equal
measure.
The outlook
What
outlook, then? The overall picture is a grim one. There is no quick
resolution on the horizon. Nasa’s economic boycotts and the sporadic
protests are likely to continue. Even if unsuccessful, these will become
a headache and the effects on the economy will be significant.
The
economic boycotts, for instance, are already hurting, even though they
are haphazard. In the medium term, boycotts will spawn uncertainty in
boardrooms and force directors in target companies to play politics by
managing perceptions on both sides.
The protests will
get worse if the economy underperforms, which now seems inevitable. At
that point, it won’t matter who organises the protests, Nasa or labour
unions.
Kenya, in short, is in a deep crisis; defined
by Antonio Gramsci, the Italian Marxist, as a situation in which the old
order has died but the new one is yet to be born.
Wachira Maina is a constitutional lawyer based in Nairobi.
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