Kenya faces historic transitional elections on the 4th March 2013. The elections will be heavily influenced by several factors; the experience and violence of the 2007 election, the implementation of the of the new constitution, the outcome of ICC cases, particularly against Uhuru Kenyatta and William Ruto, and robust engagement of the regional and international actors.
The confluence of these factors if not delicately managed could singly or collectively unsettle the on-going reform efforts in the short term, and could, in the long term, unravel the fragile peace that has returned to the country following the disputed 2007 presidential election.
2007-8 election violence- Kofi Annan Mediation
Following the 2007 presidential election and the subsequent violence, the AU under the auspices of the Panel of Eminent African Personalities appointed former UN Secretary -General Kofi Annan as the chief mediator, assisted by the former Tanzania president Benjamin Mkapa and human rights activist Graca Michel.
The two protagonists in the 2007 elections, Mwai Kibaki of the Party of National Unity (PNU), and Raila Odinga of the Orange Democratic Movement (ODM) signed a National Accord, and agreed to form a Grand Coalition Government that included members from both parties. Kibaki retained the presidency and the constitution was amended to create the position of Prime Minister for Odinga.
While the decision to form the coalition government ended the violence, the subsequent government struggled for unity which handicapped its service delivery and smooth operation. However, for a while relations between Odinga and Kibaki thawed and they seemed to be pulling in the same direction— until the ICC process started. ODM opposed deferment of the ICC cases which Kibaki’s wing of the coalition wanted, arguing Kenya was given sufficient time to establish a local tribunal to try the perpetrators of the violence and failed.
The New constitution
One of the major issues of the National Accord signed by President Kibaki, and Prime Minister Odinga in February 2008 was the promulgation of a new constitution, which passed on 27 August 2010.
Since introduction of multiparty politics, the presidency has been the be all and end all of Kenyan politics because of its imperial power. In other words, the presidency was the Holy Grail of Kenyan politics.
With this in mind, the framers of the new constitution raised the threshold required for one to become the president- candidates had to obtain over 50 per cent of total votes, and at least 25 per cent of votes in over half of the 47 counties. To meet this threshold candidates have to appeal across the ethnic divide. It was hoped that this would have a double effect of preventing the presidency from becoming a zero-sum game, and, reducing the negative ethnicity that has become the bane of Kenya’s electoral conduct.
Also, Kenya’s traditional First Past the Post (FPTP) electoral system where the winner takes it all made the presidency the ultimate prize and thus fanned incendiary ethnic election campaigns. Unfortunately, while the new electoral system has raised the threshold of attaining presidency, and also provides for a rerun, has retained the features of FPTP.
Additionally, the new constitution has created several key laws governing the elections, some have been passed, and some haven’t. Among the laws passed is the Political Parties Act 2011, which aims to engender party discipline and discourage party hopping, by making political parties more institutionalised and national in their composition and outlook. However, just like in all previous elections, ethnicity will still play a significant role.
The law on campaign financing has not been passed.
The ICC intervention
Arguably, the most significant subplot in the upcoming election is the ICC cases against the key suspects, Uhuru Kenyatta and William Ruto, who are also presidential and vice presidential candidates of the jubilee alliance. With Kibaki constitutionally barred from contesting after serving his two constitutional terms, Kenyatta is seen as the bona fide leader of the Kikuyu community, Kibaki’s ethnic group, and the largest ethnic group in Kenya.
Kenyatta and Ruto have incessantly argued the ICC is an attempt by their political opponents- locally and internationally, to deny their ascension to power. And they have in effect turned the election into a referendum on the ICC.
This has increased their incentive to not only participate in the election, but to do well in it. Theoretically, being in the government will offer them a modicum of protection which they can use, at the very minimum, to slow down and frustrate the ICC process, and in an extreme case, to push Kenya to withdraw from the Rome Statute, despite that not guaranteeing them immunity.
However, there are disputes over whether the two should be allowed to contest the election. Those arguing they should not participate in the polls invoke Chapter Six of the new constitution on Leadership and Integrity, which spells out clearly the responsibilities and conduct of state officers,. They also argue that the severity of the charges against them should bar them from contesting public office. Their supporters however argue that the suspects are innocent until proven guilty, and should therefore participate in polls.
Civil society groups filed a case at the Kenyan high court seeking the court’s interpretation on their eligibility. The case will be decided soon.
Both regional and international actors have weighed in on the possibility of electing the ICC indictees, as well as Kenya having peaceful elections. But, their statements and actions however benign have been met with swift and sometimes nationalist replies. Therefore, external actors need to be extremely circumspect lest they are seen as interfering in the internal affairs of Kenya.
The suspects and their supporters have cultivated a well-choreographed narrative that their being at the ICC is a function of collaboration between their internal political opponents and international community. Any outside effort will be placed in the same category.
Furthermore, they have drawn a similarity between their predicament and that of Kenyan independence fighters. Their analogy is that independence leaders triumphed against British colonialist; we too shall triumph against imperialists. This narrative has tremendous traction with the two ethnic communities they represent and is very powerful. Because of this, the slightest intervention, or even perceived intervention, could easily be used as a rallying call.
Part II will look at police and judicial reform