Kenya’s political crisis could come to a head on Tuesday 30 January 2018. Opposition leader Raila Odinga is expected to stage a swearing-in ceremony as the “people’s president” after two contentious elections in 2017. President Uhuru Kenyatta – who was declared victor of those elections – is reportedly readying a tough response, including the arrest of opposition leaders. This could provoke protests, further police crackdowns and much avoidable destruction and bloodshed, while deepening already dangerous levels of polarisation. Time is running short, but both sides should urgently show restraint: Odinga should call off the ceremony; President Kenyatta should agree to an audit of Kenya’s electoral authorities. Kenyan leaders also should consider some form of national convention to discuss reforms to lower the stakes of political competition.
Last year’s presidential election, held on 8 August, pitted incumbent President Kenyatta against veteran opposition leader Odinga. The electoral commission announced a Kenyatta win, with 54.27 per cent of the vote. Odinga challenged the validity of the vote at the Supreme Court. In a historic decision, the judges annulled the election. Their ruling did not show evidence of mass fraud or question the outcome of the election, but found widespread irregularities and illegalities in the tallying, tabulation and transmission of results. The court ordered a new vote “in strict conformity with the constitution and applicable election laws”. This decision was welcomed by many as a healthy – and, in Africa, unprecedented – sign of judicial independence.
In its aftermath, however, both Kenyatta and Odinga responded with measures that deepened the crisis and widened societal division. Kenyatta, who would have gained from supporting a rerun that could have given him a clearer mandate, instead lashed out at the judges. His allies in parliament passed legislation curtailing the role of courts in future elections, while state security forces killed dozens of protesting opposition supporters. In turn, Odinga insisted, without offering compelling evidence, that he had won the 8 August election. He issued a raft of conditions – most of which were reasonable but many unrealistic in the period before the repeat ballot – for his participation. Some two weeks before the repeat election, he withdrew, citing inadequate electoral reform. Without the main opposition leader, the 26 October vote became in effect a one-man show: Kenyatta garnered 98 per cent of the vote, but with a turnout of only 39 per cent, down from 77 per cent in the first round.
Since then, the standoff has only worsened. Kenyatta has rejected all efforts by religious leaders, civil society, the business community and diplomats to persuade him to engage his rival. Odinga continues to demand fresh elections and, given Kenyatta’s rejection of talks, repeatedly threatened to organise his own swearing-in ceremony and declare himself the “people’s president”. Having postponed several such ceremonies over past months, he has now set the date for 30 January. Kenyatta’s naming, on 26 January, of his full cabinet – appointing only ruling party supporters, in essence closing the door to any form of power-sharing – has foreclosed one option for defusing tensions. This has arguably further spurred the opposition to proceed with the 30 January ceremony, which it plans to hold in Uhuru Park in downtown Nairobi. Authorities say that venue is off limits, setting the stage for possible clashes between security forces and Odinga supporters arriving in the capital from opposition strongholds or informal settlements around the capital.
Pulling back from the brink
Odinga and Kenyatta are playing a high-stakes game of brinkmanship. Given deep social polarisation and a history of violent clashes between protesters and police, the two leaders’ actions could result in significant bloodshed. They need to pull back. Donors, civil society and business leaders should press both sides to accept some form of compromise to avert a dangerous escalation on 30 January. Western diplomats in particular, who continue to enjoy access to and influence with both men, should redouble efforts to broker a last-minute deal.
Such a deal would involve, first, Odinga calling off tomorrow’s ceremony. The oath-taking might in principle satisfy core supporters but in practice would achieve little in terms of advancing their interests. In return, Kenyatta should initiate talks with the opposition and accept an audit of the electoral system. Thus far, the ruling party portrays such an audit as unwarranted and Odinga’s demand for reform as a sign he cannot accept defeat. But a credible voting system is critical for Kenya’s democracy. While election officials operated in a tough environment, under relentless attack from politicians, the fact is that they failed to gain the trust of much of the electorate, which viewed them as both ineffective and partisan. An independent, time-bound audit would study the electoral commission’s work and develop recommendations for improving future elections.
If efforts to strike such a deal are unsuccessful, and the parallel oath-taking goes ahead, President Kenyatta should order the police to exercise restraint and avoid lethal force against protesters. He should also refrain from a crackdown on the opposition, which would only stir protests and further damage an economy struggling to recover from the crisis around last year’s elections. Kenya is routinely named as one of Africa’ most attractive destinations for foreign investment. But repeated clashes on the streets, particularly if they risk further instability, will do little to attract such investment and the badly needed jobs it creates. Politicians from all sides should refrain from inciting violence.
Lowering the political temperature
While the current crisis was triggered by the disputed 8 August vote, its roots run deeper. Since independence, successive Kenyan leaders have entrenched a system of ethnic divide-and-rule, inherited from British colonial administrators, and used an all-powerful and largely unaccountable presidency to reward ethnic allies. Notwithstanding reforms prompted by the violent crisis after the 2007 election, which resulted in a new constitution in 2010 that devolved power, established new checks on executive authority and entrenched judicial independence, Kenyan presidential elections remain winner-takes-all battles for power and control over state largesse. They involve fraught struggles between ethnic coalitions rather than contests over competing policy agendas or political visions for the country.
Ideally, a last-minute deal along the lines described above could create space for further steps to cool the political temperature and seek ways to improve the nature of political competition in future elections. Parliament, in which Kenyatta’s ruling party and its allies holds a plurality of seats with 193 out of 349 seats, should consider the creation of a position of official opposition leader, with a budget and perks. This would offer an olive branch to Odinga, reflect the support he commands (according to the electoral commission’s results he won some 45 per cent of votes in August) and help dial down tensions. It also would be a step toward greater inclusivity. Indeed, such a measure should be considered even if Odinga’s ceremony goes ahead.
Kenya’s leaders should also consider some form of national convention to review ways to reverse the zero-sum nature of elections. Power-sharing, which was used to resolvethe 2007 crisis, appears no longer to be an option, since Kenyatta has named his cabinet. Both camps, however, might be open to talks on reform that could help end the cycle of election-driven political crises. These could consider farther-reaching reforms than those in the 2010 constitution, perhaps even examining the presidential system itself to widen representation in the executive. Such reform would likely be unpalatable so soon after a presidential election, but might be considered ahead of the next vote, scheduled in 2022. Moderates like respected former chief justice Willy Mutunga have called for such a convention to discuss fundamental structural reforms that might avert similar crises in future.
Kenya is one of Africa’s better established democracies and the economic and transport hub of East Africa. But its image and position are tarnished by repeated election crises. The 2010 constitution goes a long way toward improving Kenya’s political system and is justifiably a source of pride for the country. But last year’s protracted election crisis suggests further reforms are necessary. The country’s leaders – and Kenyatta and Odinga in particular – should move away from their confrontational positions and instead seek a path toward greater stability and prosperity.
(c) 2018 International Crisis Group