New Hopes, Old Fears as Kenyans Head Into Another Electoral Contest

AS African leaders prepare to meet for its bi-annual summit in Addis Ababa, Kenya’s upcoming election is evoking both hope and fear. Hope that the country’s new constitution promises lasting improvements in Kenya’s body politic and fear because of the apprehension that violence similar to that which followed the 2007 elections could recur.

Published on 18 January 2012 in ISS Today

Emmanuel Kisiangani, Senior Researcher, Conflict Prevention and Risk Analysis Division, ISS Nairobi 

As African leaders prepare to meet in Addis Ababa for their bi-annual Assembly next week, the continent is looking forward to a number of important elections in 2012. Already in many countries tension is rising in the run-up to the polls.

Presidential elections in Kenya are evoking both optimism and trepidation, not only because of the events that followed the 2007 presidential elections, but more importantly because the poll will be embedded in transitional processes that will affect Kenya’s political landscape for a long time to come. Indeed, most of the key provisions of the new constitution that was promulgated in 2010 will only take effect after the next elections, and whoever wins it, therefore has a chance to establish critical precedents, norms, and institutional frameworks that would structure Kenya’s new political order and its course of democratic consolidation.

Unfortunately though, the drafters of Kenya’s new Constitution left uncertainty about when exactly the next elections would be held. While Article 101 of the new constitution provides that elections should be held on the second Tuesday of August after every five years, Section 12 of the Sixth Schedule of the same constitution gives primacy to the transitory provisions of the constitution that entrench the current coalition government. The section maintains “the National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.” A ruling last Friday by Kenya’s Constitutional Court, supported the scheduling of the election date upon the transitory constitutional provisions by stating that Kenya must go to the polls in March 2013 or alternatively December 2012, if the President and Prime Minister agree, in writing, to dissolve the Grand Coalition Government as per the National Accord that brought them to power. This ruling has, however, raised more heated sentiments that it was to pacify with Legal scholar Prof. Makau Mutua arguing that the High Court erred by not doing it work of “deciding” the exact election date, and that it ended up “speculating” and giving “scenarios” while ultimately “punting the ball back to the political class”.

Amid the swirling controversy around the election date, the political scene is pervaded with campaign fever as various politicians jostle for political space and vantage positions. The last few months have witnessed incessant creation of new alliances and rebranding of political parties in a clear sign that the political race is about to head to the home stretch. Opinion polls, a trend that came into prominence in Kenyan politics in the ran-up to the controversial 2007 elections, are back in business in all manner and shapes, predicting the changing fortunes of presidential aspirants, among other themes. With previous polls predicting that most of the current Members of Parliament will loose their seats if they decide to run again, the skepticism of Kenyans about the performance of their politicians is highlighted by one online comment which stated; “In this gang of thieves who plunder and loot our poor country dry, we now have an opinion poll showing us that one thief is slightly more popular than the other”. While the coalition government has exhibited resilience and done relatively well in implementing various reforms, including the passing of a new constitution, many Kenyans accuse the political class, particularly members of parliament, of being more concerned with the mutual interests and preserving their $10,000-a-month pay packages, much of which is tax-free, than with the plight of ordinary citizens.

Kenya’s impending election is bound to be one of the most complex ones on the continent. The electorate will be expected to vote for a president and for senators, members of parliament, governors, women’s representatives and members of county assemblies, all on the same day. The Independent Electoral and Boundaries Commission (IEBC) have suggested that it would take up to five minutes for one voter to mark and cast the ballot. Due to anticipated logistical challenges, the Kenyan government is organising a national conference on elections next month at which IEBC will conduct mock elections involving about 200 voters to try out the effectiveness of the current voting system.

With the incumbent Mwai Kibaki not eligible to contest for presidency, the forthcoming elections raise the question of political succession and the prospects of electoral violence given the experience of 2007. The next elections resemble those of 2002 where the then President Daniel arap Moi was not allowed to run for president again after holding office for two terms. There is therefore going to be a change of guard at State House after the elections. The International Criminal Court’s ruling, expected by January 23, will play a part not only in shaping Kenya’s local politics but probably also in the outcome of the next elections. With two key political players, Deputy Prime Minister Uhuru Kenyatta and former Minister William Ruto, accused (with others) of bearing the greatest responsibility for the 2007 post-election violence, a confirmation of charges against them could either jolt their presidential ambitions or, paradoxically, give them a shot in the arm. This will happen especially if they succeed to come together and campaign, as they have tried before, as victims being persecuted by the Prime Minister Raila Odinga (whom they have political difference with) in order to pave his (Odinga’s) way to State House.

Since elections by their very nature are a conflictual process, there is no doubt that the coming elections will most likely polarise the country especially if politicians turn their campaigns into emotional outbursts that distract attention from the real issues as they have always done before. It is however, debatable whether or not the political differences will again threaten the integrity of the state, as was the case in the aftermath of 2007 political violence. Critical factors that are likely to mitigate against extreme cases of electoral violence include the reform of the electoral body, the Independent Electoral and Boundaries Commission, the drastic reduction of presidential powers by the new constitution, the engendering of substantial devolution of national resources, the fact that the country’s new judiciary is gaining a semblance of legitimacy and Kenya’s experience with the International Criminal Court. While Kenya is bound to witness factional political campaigns where the political elite organize around ethnic support and patron-client politics, there seems to be an increasing inclination to accept the legitimacy of the constitution and the new institutions as evidenced in the recent determination by political parties to comply with the Political Parties Act, 2011, that among others, demands the conduct of grassroots recruitment drives, election and update of records with the Registrar of Political Parties or risk being deregistered.

As the electoral process gathers momentum in Kenya, it is worth noting that previous incidences of election violence have not solely been because of electoral systems but more a function of the complex socio-economic and political interactions. The decay in socio-economic and political order has previously meant that violence is used as a tactic in the political game and a tool for settling contests over the sharing of national resources. The prevention or reduction of election violence should, therefore, not only be about addressing the technical deficiencies of the election system, rather the need to deal with the broader governance challenges to ensure a sense of fairness and inclusiveness of the diverse groups of society.