20 February 2008: A Silver Lining in Post-Election Kenya

Following the violence that erupted in Kenya after the announcement on December 30th of the incumbent, President Mwai Kibaki, as the winner of the Presidential Election it has become clear to all that a political and constitutional solution is the surest way out of the current political standoff. Kenyans, and indeed the international community, are waiting with bated breath for Kofi Annan’s announcement of the agreed political solution to the post election standoff. Now is the time to comb through Kenya’s past, examine the present, and focus on the future while taking a critical look at national values, the constitution, and distribution of resources as some of the causes which have taken Kenya to its lowest ebb.

The run-up to the 2007 general election was momentous as the campaigns focused on the radical restructuring and transformation of the country’s political, economic and social structures. The electorate turned up in record large numbers in a demonstration of both the level of Kenyans’ civil literacy and their belief that the citizens wield the sword of change.

Finally, the long awaited Election Day, the 27th of December 2007, passed well with no ugly incidences. The two days that followed were marked by anxiety, confusion and silence from the Electoral Commission of Kenya (ECK). On 30th December, the announcement by the ECK that President Mwai Kibaki had won the presidential election painfully revealed the previously overlooked but fundamental legal, economic and social weaknesses inherent in the country’s governance structures.

Kenya has enjoyed a relatively long period of peace and stability in the midst of sub- regional political turbulence. However, the long period of peace within the country appears to have been a façade. Over 1,000 Kenyans were brutally killed in the skirmishes that ensued during the three weeks after the announcement of the election result, and over 250,000 more were displaced. In the aftermath a fundamental question has lingered on in the nation’s mind - ‘what is the best solution to this political stalemate?’ In attempting to find answers to that question, the following issues must be brought to the fore:

First, the current Constitution of Kenya is largely a Lancaster House-negotiated document which has effectively governed the country, but with silent colonial undercurrents. For instance, the presidential system of government appears unpopular with regard to principles of decentralization and citizenry empowerment. These two components are regarded as key levers for effective governance and faster development. Hence, properly addressing the political standoff in Kenya requires a fundamental review and rewriting of the constitution in order to mainstream checks and balances guaranteeing accountability, efficiency, justice, equity, participation, cohesion and sustainable peace. Cries for short term peace without constitutional drivers will not be sustainable, and neither will power sharing without fundamental constitutional changes be effective in the long term.

Secondly, the Laws governing the operations of the electoral commission of Kenya are largely controlled by the Executive, in total disregard of the multiparty context that Kenya has been since 1992. The president unilaterally appoints the Commissioners and the Chairperson of ECK, yet he is a player in the electoral process. In this respect, the Commissioners do not appear to operate independently.

Furthermore, the ECK lacks the legal and operational capacity to make binding and critical decisions. Therefore, fundamental restructuring of the ECK Act within a multiparty context will strengthen the electoral process and legitimize electoral results, which are currently interpreted by analysts across the political divide as the cause of the political standoff in the country.

Thirdly, the Kenyan judicial system is a relic of the British legal system, replicated during colonial period. In this system judges are appointed by the president. Principle and critical officers like the Chief Justice, the Attorney General and the Commissioner of Police are all presidential appointees. These offices play a key role in the management of the country’s judicial system. However, their allegiance is to the president. It is no wonder, therefore, that the Orange Democratic Movement (ODM) rejected the courts as a legal arbitrator in the current crisis. As if to confirm the ODM fears, some of the 2002 election petitions are still unresolved. This is a clear manifestation of weaknesses inherent in the judicial system. Radical surgery on the judicial system is urgently needed in order to mainstream transparency, independence, accountability, efficiency, justice, meritocracy and motivation of civil service.

Fourthly, the separation of powers between the executive and the judiciary is a pinnacle of democracy. Under the current status quo, parliamentary authority has been eroded in the country because the Members affiliated to the Party of National Unity (PNU) are not the majority in the House. To make matters worse, under the current constitution the Parliament is dissolved only by the president and cannot set its own calendar. Therefore, instituting major reforms to entrench a parliamentary democracy as a key driver of political and economic transformation is essential to addressing the key underlying causes of current political standoff.

Kenya has until now been sitting pretty atop thinly-encrusted sinking sand. Genuine and sustainable peace, stability and development must be anchored in democratic structures, equity, respect, transparency and accountability. The painful price the country has paid for this reality to sink is invaluable. As a bleeding nation, Kenyans should not be in a hurry to reach a settlement on the electoral dispute just for the sake of it. Fundamental constitutional changes are necessary for sustainable peace. Never again should the country have a reason to hang so precariously over the precipice of political tragedy.

Philip Sabwa, Senior Training Coordinator - Mifugo Programme, ISS Nairobi