A very short political history of Kenya: HAPPY JAMUHURI DAY!!!

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Financial Times reporting on the creation of the Kenya Colony

Kenya is 50 today. Or 93 if you take the Order in Council of July 1920 creating the Kenya Colony to be the founding instance of the geographical entity that became Kenya (well, most of its land anyway. The coastal strip was then still a property of the Sultan of Zanzibar). I would actually suggest a different date, 1907, to be the instance when the Kenyan state opened shop. This is when the first rudimentary legislature was established (in Nairobi) within the East African Protectorate, thereby enabling settlers, and by extension indigenous Kenyans, a little more say on government policy. Yes, you are very right in thinking that this view has nothing to do with the fact that I am writing my dissertation on African legislatures.

Direct representation came in 1944 with Eliud Mathu, but settler demands brought to the fore issues of the welfare of indigenous Kenyans as well. It was unlike the IBEAC days when the locals had almost no say at all. Speaking of the IBEAC, you could make the argument that Kenya is actually 118 – going by the date, 1895, when IBEAC officially handed over the managed of British East Africa to the Foreign Office.

Anyway, since much of the period between 1895 and 1963 was marked by the exclusion of the vast majority of indigenous Kenyans form the political process let’s take 1963 as the starting point. However, the significance of the other dates shouldn’t be lost on us. Kenyan history did not begin in 1895 or at midnight on December 12th 1963. This account will be brief. Feel free to add to it in the comments section.

Independence in 1963 came on the heels of a brief period of partial self-government. Official history taught in schools puts President Jomo Kenyatta as the first indigenous leader of government. Most Kenyans don’t know that Ronald Ngala was official leader of government business in the LEGCO and even became Chief Minister. At the time Kenyatta was in prison, KANU had just won elections but refused to form a government until Kenyatta was released from prison. Back in 1958 Jaramogi Oginga Odinga had adamantly insisted in the LEGCO that “Kenyatta Tosha” [my own rendition] and that a precondition for independence and self government was the release of Kenyatta from prison.

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Kenyatta with Odinga and Mboya

When Kenyatta was released from prison he found two dominant parties, KADU and KANU. Both tried to persuade him to be their chairman since it was clear that whoever had Kenyatta on their side would win the independence elections (Daniel arap Moi, a KADU man, had even visited Kenyatta in Kapenguria). Because of interests (especially around land; KADU was then perceived as a tool of the settler community) and historical reasons (James Gichuru, a KAU man, was a founder member of KANU) Kenyatta chose KANU over KADU. At independence he inherited a state that was dominated by the Civil Service and Provincial Administration. Kenyatta kept this intact. Sons of collaborators who hunted down the Mau Mau inherited the colonial state. Unlike in many African countries where independence brought about a steep discontinuity – think about Guinea, for instance – in Kenya there was a good amount of continuity.

It was almost as if the Ashanti aristocracy and colonial era collaborators had inherited the reigns of power in the Gold Coast in 1957 and not the outsider mass mobilizer, Kwame Nkrumah; Or the Kabaka, instead of Obote, had inherited power in Uganda in 1962.

The nature of colonial transition explains Kenya’s political stability and reasonable economic success since independence (at least compared to its African peers). It is Sub-Saharan Africa’s biggest non-mineral economy and has never experienced a successful military coup (though attempts were made in 1971 and 1982).

Kenya is a lesson on the difference state capacity can make. Any attempts at separatist armed struggle – from the Shifta War, to the Sabaot Land Defense Force, to the Mombasa Republican Council – have been crushed (sometimes with foreign help). Civilian insecurity is a serious problem that is getting worse. But the state is not one that can be toppled by bands of armed men on technicals (see here (pdf) for reasons as to why).

The country got a stable start (and many may argue normatively unjust system) because the indigenous upper class inherited the economy and a strong and moderately developed state (largely because of the need to defeat the Mau Mau insurgency) almost intact. Individuals close to Kenyatta took over settler farms almost intact. The last British Officer in the Kenyan military left in the 1970s. The social foundation of the state ensured continuity (redistribution of land to the masses was a non-starter) and the inherited strong bureaucratic-state had the capacity to suppress any form of dissent (of course starting with ex-Mau Mau freedom fighters who demanded for a greater degree of land redistribution). It also helped that Kenyatta and his close associates were from Central Kenya, the economic heart of the country.

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Snapshot of the triumph of conservatism: Kenya’s Four Presidents, Kenyatta I, Kenyatta II, Kibaki and Moi

The confluence of economic and political power (in Kenyatta and his close co-ethnics) made redistributive policies unworkable. As Bates has ably argued, this explains the great investments that the Kenyan state made in agriculture. This also explains why Kenya never flirted with socialism, unlike nearly all of its African (Ghana again being a good example) peers. Leftist elements within KANU lost out in 1966.

Even among the Kenyan public, the idea of individual ownership of property – and especially land – had become accepted as sacrosanct. Many had come to a pragmatic acceptance of inequality as a feature of life. It was OK for the big men to appropriate thousands of acres of land as long as ordinary families got a few acres for their own use. Right from the beginning, prevailing socio-economic conditions and the attitudes of politically relevant groups made it easy for the conservative ruling class to pursue right of center economic policies. There was no land revolution in the 1960s.

When Kenyatta died in 1978 a lot of things had gone wrong. Many freedom fighters had been neglected by the very people who collaborated with the colonial administration and who now had control over the state. Negative ethnicity had irredeemably corrupted the state and made Kenyatta’s co-ethnic unwilling to share state power or wealth with non co-ethnics. Pio Gama Pinto, an active backbencher in Parliament was assassinated in 1965. Tom Mboya, a charismatic likely successor to Kenyatta was assassinated in 1969. Josiah Mwangi Kariuki, a populist co-ethnic of the president who advocated for more redistributive policies, was also assassinated in 1975. The main opposition party had been banned in 1969. A raft of constitutional amendments had destroyed the regionalist structure of the Kenyan government and centralized power in the hands of the president.

But even at the most trying of times, twice in 1969 (the assassination of Mboya, the riots in Kisumu during a Kenyatta visit and the subsequent banning of the main opposition party KPU) and again in 1975 (following the murder of J. M. Kariuki), the Kenyan state held strong. Order was restored. For better or worse conservatism triumphed over populism and radicalism.

Moi’s succession brought new hope; like all good future dictators he started off by releasing political prisoners of his predecessor. But his security of tenure was never a given. He barely survived attempts to exclude him from succeeding the president as required by law. My own reading of the situation is that a key factor in the lawful succession in August 1978 was Charles Njonjo, the unashamedly Anglophile son of a colonial era chief from Kabete (some call him Sir Charles, others the Duke of Kabeteshire). As the Attorney General Njonjo probably eyed the presidency. Yet he wanted to get there lawfully. Moi was his way of outfoxing the Mungai-Koinange. Njonjo, like all good Kenyans, had internalized whatAtieno-Odhiambo calls the country’s pervasive “ideology of order.” Moi probably knew this. And the fact that there was an intra-Kikuyu split along the flow of River Chania. The Kenyatta presidency was a mostly Kiambu affair. Nyeri Kikuyu (who bore the brunt of the Mau Mau insurgency and counterinsurgency were largely excluded). Moi appointed a Nyeri man, Mwai Kibaki as Vice President. For good measure, he kept Njonjo – well until he got rid of him in 1985.

Daniel Toroitich arap Moi, a man that many in Kenyatta’s inner circle had viewed as a passing cloud, then went on to rule Kenya for 24 years. As an outsider his rule was marked by redistribution (as in the District Focus for Rural Development, gated); an attempt at greater control of the political sphere (he turned Kenya into a party-state); and poor economic performance (Kenya’s dominant economic group was excluded from political power). The coup attempt in 1982 was a reaction to Moi’s controlling tendencies. Earlier in the year he had engineered a change in the constitution to make Kenya a one party state. By 1990 a combination of economic collapse and increasing popular resentment made political liberalization inevitable (it also helped that democracy promotion by Western governments became sexy).

The most high profile political assassination during Moi’s rule was that of Robert Ouko in February 1990. Initially the government tried to suggest that the Foreign Minister committed suicide by shooting himself in the head, breaking his legs, and setting himself on fire. He then somehow found himself atop Got Alila where his remains were recovered by a herds-boy. Like all the high profile  political assassinations before it, it is not clear whether this was a result of intra-palace rivalry or whether it was conducted on the orders of the Big Man.

Despite his many faults, Moi maintained the hold of the center. He saved the elite around Kenyatta from self-destructing by refusing to share power and wealth. More crucially, under Moi order continued to be a key pursuit of the state. In other words Kenya did not fall apart under the pressure of demands for political reform like most of its African peers did.

Multipartyism was reintroduced and elections held in 1992. Moi survived with 36% of the vote. The opposition was divided. Their only victory was getting Moi to concede to term limits. Worst case scenario the man would only be in power until 2002.

ImageMoi retired after the 2002 election. In that year Mwai Kibaki won in a landslide, defeating current President Uhuru Kenyatta. The Kibaki presidency brought success and decline in equal measure. The economic consequences of the Kibaki presidency were largely positive. Kenyans acquired greater freedoms. It became OK to hurl abuses at the head of state without risking torture. The 2010 Constitution was enacted under Kibaki. But it is also under Kibaki that the country almost descended into civil war in 2007-08 following the rigged 2007 elections. Corruption and the ethnicization of state administration continued unabated. The euphoria and hope for genuine reform that marked the 2002 transition varnished. Earlier this year Kibaki retired to be succeeded by Uhuru Kenyatta, effectively bringing to power a significant portion of the group that lost the 2002 presidential election.

Moi was Kenyatta’s vice president, Kibaki was Moi’s vice president. President Uhuru Kenyatta is the son Kenya’s founding father.

As is implied by this account, the political history of Kenya has tended to revolve around key personalities, and the presidency. One defining characteristic of the Kenyan saga is the invariable triumph of conservatism over radicalism and progressivism. Great progressives from Pinto to Oginga Odinga, to Bildad Kaggia to J. M. Kariuki to Raila Odinga have fought hard and long to improve the lives of ordinary Kenyans. But the empire always strikes back. And wins. The Kenyan story is one of the triumph of conservatism over progressivism.

Moving forward, it will be interesting to see how the new institutions created by the 2010 Constitution evolve. The Kenyan legislature is strong and continues to evolve (be sure to read my dissertation and book on this); the system of county governments will definitely chip away at the hitherto cohesive bureaucratic-administrative state; and the desire for rapid development and the management of economic equality will raise new problems of the conservative core of the Kenyan state. Will the centre continue to hold? Will Kenya continue to be economically center-right despite freer elections?

Kenyatta and Odinga argue in public

This is an audio clip of Jomo and Oginga at a public function. President Kenyatta launches into former Vice President Odinga and his party, the Kenya People’s Union (KPU), accusing them of being useless rubble rousers that are unconcerned with development (especially in Luo Nyanza). Odinga answers back, telling Kenyatta that he is the one with the authority to develop Luo-Nyanza and other marginalized parts of the country. 

As someone who grew up in the Moi and Kibaki eras, it is unimaginable that anyone would speak back to the president, at a public function no less. The clip serves to show the special relationship that existed between Kenyatta and Odinga, even after they fell out politically. Odinga was the most vocal campaigner for Kenyatta’s release before independence, with the slogan “Kenyatta na Uhuru.” 

Which way forward for Kenya’s Civil Society?

It is no secret that the candidature of Raila Odinga had the backing of the largely progressive Civil Society Organizations (CSOs) in Kenya. Odinga’s loss to Uhuru Kenyatta, someone they considered an unelectable ICC suspect, was their loss too. In addition, both during the campaigns and after the election, CSOs in the country found themselves on the defensive against charges of being stooges of Western donors and institutions (including the ICC) out to subvert Kenyas sovereignty. An ill-advised move by Western embassies to show their hand in the contest backfired spectacularly and provided more ammo for the anti-CSO brigade. An even bigger problem for Kenyan CSOs was that at some point in the election cycle they lost the support of a sizable chunk of the middle class. The feeling of betrayal was hard to miss. The very people they had fought for had rejected their cause.

Kenya’s upwardly mobile middle class was desperate to get past the election, peacefully. Many took to heart the Peace Brigade’s PSAs that blanketed the airwaves in the run-up to and after the election. This lay the groundwork for everyone to “accept [the results] and move on,” no uncomfortable questions asked. The media too played ball, glossing over even the most glaring of irregularities in the IEBC’s tallying process. Indeed up to date none of the major media houses has seriously reported on the delayed release of constituency-level vote tallies for the National Assembly races. Reports in a section of the print press suggest the IEBC is “reconciling the presidential results and those of other positions. Over a million votes must be reconciled with others….” The silence from the major media houses on this issue is all part of accepting the official outcome of the election and moving on.

Recent discussions on the opinion pages here suggest that the chasm between the middle class and CSOs might be widening. Kenyan CSOs have been tagged as gratuitous rubble rousers intent on scaring away investors. Mention of their Western “puppet masters” has now become a must in the media when covering CSO activities. Even the recent protest against demands by Kenyan parliamentarians to increase their pay has not escaped the question of whether it is yet another plot by neocolonial schemers. The attacks have now extended to the social sphere as well. Exploiting Kenyas social conservatism, some have accused progressive CSOs of colluding with foreigners to destroy the country’s moral fabric with liberal and anti-African, atheist values. In their minds Civil Society has become “Evil Society.”

The resulting situation raises important questions regarding the future of CSOs in Kenya. Can they remain relevant without the support of the middle class? What tactics must they adopt to survive in the current political landscape? When did the rain start beating Kenyan CSOs and how can they regain the allegiance of a wide section of the middle class?

The Civil Society movement in Kenya was born out of the clamor for political space and greater civil rights during the height of Moi’s single party rule. As such, most Kenyan CSOs have always had an anti-government streak, with an inherent predisposition “to speak truth to power.” This was a strategy that worked well in fighting a widely unpopular government. And then Kenya changed. The Kibaki administration robbed Civil Society of quite a few luminaries that earned their badges of honor in the fight for the Second Liberation. Once in power these individuals faced different incentives. Many felt that it had now become their turn to eat.

The 2007-08 post-election violence weakened CSOs further by bringing to the fore ethnic divisions that existed among them. Come 2012-13 the ethnic chasm became even wider. And the ranks of CSOs thinned even more. The middle class also got alienated by a movement that seemed (fairly or not) more concerned about the past and intangible rights at time when the Kibaki boom years had given the middle class a glimpse of new economic possibilities. The mood had changed. Some suggested that Kenya had “too much democracy” that would stand in the way of development.

In a twist of irony Kenyan CSOs and the political left are a victim of their own success. Much of the Kenyan middle class, for better or worse, have since become convinced that the fight for political rights and space had been won. After all Kenya now has a new constitution; the devolved system of government is being implemented; and we no longer have an imperial presidency. For many middle class Kenyans, it is now time to focus on winning the economic fight and achieving the Kenyan dream. Many Kenyans are persuaded to believe that their own economic success is hinged on general investor confidence, and that the country needs to project an image of peace and stability.

Throughout the election cycle, no one wanted to let the ghosts of 2007 forestall Kenya’s quest to regain its place as the oasis of peace and stability in the region. The allure of 10% annual growth rates and the promise of Vision 2030 have proven very hard to resist. Many cling to the hope that mega infrastructure projects – including LAPSSET, the Thika Super Highway, and new cities and gated communities –  are about to catapult Kenya into middle-income status. Under these conditions, the ideology of peace, stability and public order was an easy sell.

In light of these developments, in order for progressive CSOs to remain relevant to the middle class they must adopt tactics that are in line with middle class aspirations. The confrontational tactics that were successful in the past will probably no longer work. I have no doubt that the government will opportunistically continue to react to public demonstrations in a manner to provoke riots that will then be labeled as anarchic and a threat to public order. Shop owners, small business operators and much of the middle class, all averse to public disorder, will no doubt nod in agreement. Despite the challenges, it should not be lost on those involved that in order to guarantee their continued survival and ability to check the government Kenyan CSOs must reengage their middle class allies. The moderating effect of the middle class will also serve to make CSOs more attractive to the wider public. As a first step CSOs must formulate a strategy that is less confrontational and more in tune with the emergent focus on the economy.

This is not to say that public demonstrations should cease to be a tactic used by CSOs in Kenya. Far from it. Public demonstrations are the best way to get the publics attention. The recent anti-parliamentarians protest, complete with a sow and its litter, was very successful in catching public attention. But such public stunts must be backed by deliberate formal engagement with the relevant authorities. This is because for a section of the public Kenya is now supposedly a nation of laws and institutions in which public protests are not allowed. All aggrieved parties should go to court where decision-making is sanitized, with minimal risk of scaring away the all-important investors. On this score both the government, wary of the unpredictable nature of unchecked public demonstrations, and the development-hungry middle class seem to be reading from the same script.

The imperative to play within the institutional framework will necessarily require CSOs to become even more institutionalized. Many Kenyan CSOs will soon be forced to morph into full fledged professional Think Tanks that can credibly address the middle class desire for economic progress, while at the same time continuing to hold those in power politically accountable. This is a lesson that I hope CSOs got from the last election.

Their skeletal operations and poor strategic judgment – which also extended to Odinga’s party – might have cost them an election that was theirs to lose. They appeared to not have done their homework when confronted with the media savvy and incredibly moneyed Kenyatta campaign. It is now well known that Odinga did not have agents in key polling stations. When the IEBC’s tallies became suspect they did not have their own numbers to report, even as they were disputing the IEBC’s tallies. Such sloppiness betrayed both a party and its CSO allies that lacked organizational competence and took too much for granted. This has to change. In this new game only those that have institutional and organizational depth will effective compete. The era of “capacity building” seminars and workshops is gone.

In addition, those in the middle class that support the incumbent government should be persuaded to form their own CSOs. The idea of CSOs being a preserve of the progressive movement in Kenya should be a thing of the past. Vigorous debate ought to be encouraged among CSOs representing both sides of the political divide. That is the mark of a true democracy. Such an eventuality would make incumbent governments and their supporters less hostile to CSOs in general. It would also force a situation in which “incumbent” CSOs, as part of a wider community of activists, felt the need to provide well argued justifications for government action and policies.

These are interesting times in Kenyan politics. Pocketbook issues are rising faster and faster up the list of Kenyans’ concerns. For now this shift in public mood appears to have been at the expense of concern over political rights. This means that in order to remain relevant, especially in the eyes of the middle class, Kenyan CSOs must change tactics and address Kenyans’ economic needs as much as their political needs. Activism, as we know it, must be backed by more institutionalized Think Tanks that can competently play the new institutional game. There is also a need for greater democracy among CSOs by encouraging the growth organizations that support the incumbent government. This will serve to further institutionalize and professionalize both the development of public policy and the conduct of politics in Kenya. It will also guarantee much-needed cooperation between Civil Society and the middle class. Merely accepting the present estrangement and moving on is not an option.

Will Kenya’s civil society survive Kenyatta’s presidency?

This is the question – what’s civil society to do if it feels so strongly about the Kenyatta regime? There’s no doubt Mr Kenyatta and his government have the support of a lot of Kenyans. That’s unarguable. But there are many Kenyans who are apathetic.

Take it from me – apathy is strongest in civil society. It’s an “existential moment” for some of the leading lights of civil society.

They feel betrayed by a population they’ve always fought for. In fact, most of the freedoms Kenyans enjoy today were made possible by civil society, including the 2010 Constitution.

Many are questioning the ability of the human rights movement to uproot embedded tribalism and the money corruption of the wealthy.

No one knows whether civil society will survive the Kenyatta regime and, if so, in what shape. We are in uncharted territory. But I can point to some possible routes. I believe Mr Kenyatta understands that his regime suffers from a “legitimacy deficit”.

That’s because of the charges against him at The Hague and the contested nature of the election. He may try to co-opt some civil society leaders into his regime to shore up his credibility.

That is the Chair of the Kenyan Human Rights Commission, Dr. Makau Mutua writing in his Sunday Column on the challenge ahead of civil society under the Kenyatta administration. He goes on to add that:

….others may accept the outcome of the election and “move on,” as has been urged. This cohort would simply go back to the trenches and continue their fight for human rights – much in the same way they did under former President Kibaki.

….there is a group that’s likely to disengage, and “divorce” the human rights movement. This chunk may “resign” from civil society. A number may even “divorce” Kenya. Some may go for further studies, or join the private sector. This group took Mr Kenyatta’s election the hardest, and cannot reconcile itself to the choice of a supposed plurality of Kenyans.

Mr. Mutua is one of the few civil society members who have come out strongly against the election of President Kenyatta. His views represent those of a significant proportion of Kenyans who feel that much of the democratic gains of the last 20 years have been lost with the election of Kenyatta and Ruto, scions of former President Moi.

The progressive forces in Kenya are presently in a state of shock. This was their election to lose. Having managed to get a favorable constitution in 2010, many had banked their hopes in Raila Odinga to implement it. Instead, Mr. Kenyatta captured the State House and control of both houses of Parliament.

Mr. Odinga’s loss has left many disillusioned with the Kenyan political system. Once again, despite valiant attempts to even the playing field, money and entrenched interests triumphed over progressive ideals. 

Why Raila Odinga Lost

Why did Raila Odinga, the man to beat in the 2013 Kenyan presidential election, end up losing by up to 7 percentage points? Here are some quick answers:

I. Bad campaign management:

Back in 2009 James Orengo, one of Raila’s closest operatives said this about Mr. Odinga:

“Odinga has done nothing to reorganise his office to make it more effective. Odinga is a poor manager who does not follow up, and he is primarily focused on preparing for his presidential run in 2012, Orengo said. Odinga has avoided bold moves because he is hostage to his difficult political constituency”

The constituency mentioned must comprise of politicians and not the residents of Kibera because Mr. Odinga’s ODM/CORD secretariat was run by old/disconnected politicians. Yes he may have had administrators running the back office but the face of the ODM operation was one Franklin Bett, a veteran politician that elicited a lot of distrust from voters and presided over a sham of a nomination process. President Kenyatta’s Jubilee coalition was the polar opposite. Youthful Johnson Sakaja and Onyango Oloo presented a face of professionalism in the management of TNA affairs.

TNA also had a rather chaotic nomination process, but Sakaja and Oloo seemed to be in charge and gave the impression of being fair arbiters. For instance, they allowed Ferdinand Waititu, a stone thrower, to run against Evans Kidero for the governorship of Nairobi when they could have rigged in Jimnah Mbaru, a much better candidate. Over at ODM Raila Odinga’s brother and sister were fighting nasty nominations in Siaya and Kisumu respectively, which gave people the impression that the party wanted to rig in Raila’s relatives.  

Mr. Odinga’s lack of managerial abilities was also displayed in the choice of his son (Fidel) as controller of the purse for some campaign operations. An ODM operative in the Kidero campaign intimated to me that some of the money was never used and that t-shirts intended for campaigns were kept in storage in readiness for Raila’s swearing in! Mr. Odinga’s wife also ruffled a few feathers during the campaign period. The heavy visibility of his family made it much harder to avoid seeing Mr. Odinga’s campaign as a family affair. 

II. Strategic blunders: 

Raila Odinga’s campaign had several strategic blunders, going back a few years. 

  1. The Mau Forest Issue: 

    If Raila Odinga had garnered at least 20% of the vote in Kalenjin land in the Rift Valley province we may be having a different discussion today. His dismal showing in the Kalenjin heartland was partly because of his strategic myopia with regard to the eviction of squatters in the Mau forest. The cabinet, which at the time included William Ruto, Uhuru Kenyatta and Mwai Kibaki, approved the plans to preserve the Mau forest water tower by evicting those who were squatting in the protected areas. Yet, Raila Odinga managed to allow himself be left holding the political bag for the evictions (Many of those who lost land in the process were actually wealthy land owners with thousands of acres). 

    Come election time four years later, one of the issues that arose was why the poor who were evicted had not been resettled. At the time Mr. Odinga, through James Orengo, was in charge of the lands ministry. Instead of addressing the issue head on politically, the Odinga camp kept saying that treasury (run by Kenyatta then later by his allies) was witholding funds to resettle the evictees, thereby walking right into the political trap. What stopped Orengo, the lands minister, from allocating land to the evictees, thereby forcing treasury to rescind this offer or worse to evict the people from their newly allocated land? 

  2. Voter registration:

    TNA completely outmaneuvered ODM in registering voters in their strongholds. Local political analyst Mutahi Ngunyi (of the tyranny of numbers fame) was partly right when he said Kenyatta won the election on December 18, the day voter registration closed. Again here Odinga could have done better. Many youth in his strongholds did not register for lack of national identification cards. Yet Mr. Odinga controlled the ministry in charge of issuance of IDs through Otieno Kajwang’. Why didn’t Odinga mobilize his base to register?

    My theory is that his lieutenants’ incentives were misaligned with his. While Mr. Odinga needed massive grassroots mobilization, his old and disconnected close associates dreaded this. Many of them were very good at playing politics at the national stage but did very little for their constituents upcountry. Massive voter registration would have undoubtedly meant defeat for this lot (quite a few of them won nominations under dubious circumstances). Mr. Kenyatta on the other hand was less encumbered by old established politicians since he had a brand new popular party (TNA) in which everyone who wanted to be elected in central Kenya had to join.  

    The same Odinga lieutenants also appeared to be ever too eager to pursue their own interests at the expense of the former Prime Minister. Prof. Anyang’ Nyong’o threatened to fire 3,000 nurses close to the election, and called them zombies. One Jakoyo Midiwo, a vocal MP from Nyanza province and Odinga’s nephew, said that ODM had its owners and that Mr. Odinga’s brother (Oburu Odinga) was the designated nominee for governor of Siaya. He advised those who did not like this idea to look for other parties

  3. Giving up the ICC fight:

    Many analysts concluded following the election that Kenyatta and Ruto won partly because of their strategic use of the cases they face at the ICC. I hold the position that the ICC only made it more likely that Uhuru would team up with Ruto. The advantage here could have gone either way. Late last year opinion polls were still showing at least 50% of Kenyans wanting perpetrators of the 2007-08 violence to be prosecuted at the ICC. 

    Mr. Odinga could have used this to his advantage by going directly to the voters most likely to be sensitive to international trade restrictions – many of whom were in Kenyatta and Ruto’s strongholds (mostly commodity exporters) – and making the case to them that electing the duo would negatively impact their businesses. Instead he completely gave up on this and allowed Kenyatta to own the issue and set the tone on how the ICC would be talked about in the campaigns. As a result in the first debate Mr. Kenyatta masterfully neutralized the ICC cases as an issue by forcing all serious contenders on stage to denounce the trials and pledge to try the suspects of the 2007-08 violence domestically. 

III. Money:

Uhuru Kenyatta is one of the wealthiest people in Africa (probably worth hundreds of millions of dollars). He was therefore able to pour money into his campaign without reserve. Red t-shirts, caps, reflector jackets, lesos, etc were everywhere. ODM on the other hand had the reputation of being stingy throughout the campaign. They had less money to work with and even then managed to mismanage the little they had. Mr. Odinga’s dependence on wealthy party financiers may have also hampered his independence leading to the many strategic blunders he made throughout the campaign. 

IV. Demographics: 

In the final analysis democratic elections are about numbers. And sometimes a candidate just doesn’t have the numbers. Kenyans vote along ethnic lines. And on this score Mr. Kenyatta had a head start. The two core communities of the Jubilee Alliance (Kikuyu and Kalenjin) make up 36.5% of Kenyans. The two core communities in the CORD Alliance (Luo and Kamba) are only 21.1%. Add this to the fact that Mr. Kenyatta completely out-registered Mr. Odinga and also had a better turnout on voting day (I hinted at this here before the election) and it becomes clear why Mr. Kenyatta’s margin of victory was so big.  

Mr. Odinga’s party needs to do a lot of soul searching and be honest in its assessment of the conduct of the last election. They were caught flatfooted, playing the politics of yesteryears – mass rallies and whipping up emotions – instead of meticulously planning and targeting voters for registration, turnout, and with specific messages. Mr. Kenyatta, perhaps because he had a lot more to lose if he lost, or because he had a newer party with immense resources, or both, was able to do these things very well. 

Elections in Kenya will forever be different. And a lot more expensive. 

 

Supreme Court Judgment on the Presidential Election Petition 2013

The Kenyan Supreme Court released the full judgment (PDF) following the justices’ unanimous dismissal of Raila Odinga’s petition challenging the election of President Uhuru Kenyatta.

Below are some sections of the ruling.

This Judgment, therefore, may be viewed as a baseline for the Supreme Court’s perception of matters political, as these interplay with the progressive terms of the new Constitution. It is clear that this Judgment, just as it is important to all Kenyans in political terms, is no less important to the Court itself, in terms of the evolution of jurisprudence in the domain of public affairs. It is particularly so, in the light of Section 3(c) of the Supreme Court Act, which vests in this Court the obligation to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”

…the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt…

…the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process – squabbles which occasioned the failure to assess the integrity of the technologies in good time. It is, indeed, likely that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.

In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such.

As I have said before on this blog, the justices had to make both legal and political considerations with regard to this case. I am not a lawyer and cannot comment on the legal aspects of the case/ruling. With regard to the political considerations, I think the court showed its conservative hand – opting for a strategy of letting Kenya’s new institutions grow on their own without strict supervision from the courts; notice the many references to public opinion and perception in the ruling. That is how the court interprets its mandate to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth,” I think.

The Economic Consequences of the Kibaki Presidency

Emilio Mwai Kibaki steps down as president next Tuesday a satisfied man.

His legacy as the man who rejuvenated the Kenyan economy after decades of malaise under President Daniel Arap Moi is secure. His signature achievements were investments in infrastructure and the freeing up of political space.

As president he was the Delegator in Chief.

His biggest failure was the disastrous 2007 general election. Many believe he unfairly robbed outgoing Prime Minister Raila Odinga of victory. Following the election violence erupted in the country in which 1300 people died and 300,000 were displaced from their homes. Many of the displaced are yet to return to their land and homes 5 years later.

When all is said and done Mr. Kibaki’s record on the economic front stands out. The question of how equitable the growth was under his watch is up for debate – many think it wasn’t. What is unassailable is just the sheer amount of wealth that was created during his 10 years in State House.

Hongera Mzee. Ji-enjoy in retirement (although I think your retirement package is totally ludicrous).

Image1963-1978: Jomo Kenyatta

1978-2002: Daniel Toroitich Arap Moi

2003-2013: Emilio Mwai Kibaki

2013-       : Uhuru Muigai Kenyatta

Supreme Court confirms election of Uhuru Kenyatta

Uhuru Muigai Kenyatta has just been confirmed validly elected as president by the Supreme Court.

Earlier this month runner-up Raila Odinga had filed a petition challenging the declaration of Mr. Kenyatta as winner of the presidential election.

image

Mr. Kenyatta will be sworn in on April 9th.

The unanimous court decision was delivered in under twelve minutes shortly after 5 PM. The Chief Justice promised a detailed ruling within two weeks.

Following the court decision Mr. Odinga held a press conference and accepted the ruling, after which he wished Mr. Kenyatta well.

Most Kenyans breathed a sigh of relief after the orderly conclusion of this year’s presidential election contest.

A post mortem of the election and why exactly Odinga lost coming soon….

Kenya awaits Supreme Court verdict

Kenya’s prime minister Raila Odinga last Saturday filed a petition challenging the declaration of Uhuru Kenyatta as president-elect (with 50.07% to 43.28%) after the presidential elections earlier this month.

In the petition Mr. Odinga cites a host of factors that, in his view, significantly compromised the integrity of the election – including an unstable voter register; inconsistencies and errors in final vote counts; and failures in the electronic tallying system.

In a rally in Mombasa this week Odinga claimed to have won the election with 5.7m votes to Kenyatta’s 4.5m.

With the filing of the petition, the country’s attention has shifted to the Supreme Court. The court is constitutionally mandated to issue its ruling within a fortnight from last Saturday (latest March 30).

Should the court find in favor of Odinga’s petition Kenyans will have a re-run election in late May, with a possible runoff a month after that. The law says that in case of irregularities the court has to nullify the entire (presidential) election. It is unclear if the judges can rule on limiting the re-run to a runoff between Kenyatta and Odinga. If the judges dismiss the case Kenyatta will be sworn in on April 9th.

It is obvious that the ruling will be as political as it will be legal. Six judges (see here) will hear the case as the nominated deputy Chief Justice is yet to be confirmed by the National Assembly. Under normal circumstances five judges would have heard the case to avoid a tie but since the selection of the five would have tilted the case one way or the other all six will be present.

Should there be a tie the status quo will hold and Kenyatta will be sworn in early next month.

So how might the judges vote?

Based on my conversations with people in the know, it appears that the swing justices will be Chief Justice Mutunga and Justice Mohamed Ibrahim. The two are largely expexted to adhere the most to the legal merits and implications of the petition. The eventual ruling will therefore partly depend on the ability of the two to persuade their colleagues. As President of the court, CJ Mutunga will be under pressure to be on the winning side of the ruling.

A tie would be the worst of possible outcomes as it would suggest that the court, by far the most trusted Kenyan institution, is just as divided as the rest of the country.

The court’s only other ruling before this was on affirmative action to increase the proportion of women in the Kenyan parliament to a third. They voted against (arguing for a gradualist achievement of the same), with CJ Mutunga being the sole dissenter.

On the left-right spectrum CJ Mutunga is the most progressive member of the court (and the highest rated public official, despite Kenya’s socially conservative bend). Justices Wanjala, Ibrahim and Ndungu are centrists, while Ojwang and Tunoi are conservative.

Kenyan pollster Ipsos explains why they missed the mark

Today Ipsos Synovate provided their own internal analysis (see here, pdf) of the election results vis-a-vis their poll numbers right before the March 4th election.

According to the final IEBC tally (Which Mr. Odinga is challenging in court) all the eight candidates except Mr. Kenyatta performed within the margin of error of Ipsos’ last poll before the election.

Mr. Kenyatta outperformed the last poll by 5.25%, well outside the margin of error.

How did Ipsos miss this?

Their answer on page 23 basically agrees with my observation that differential turnout, especially in the candidates’ respective strongholds, made the difference.

According to the final IEBC numbers, Mr. Kenyatta’s 20 biggest vote-basket counties averaged a turnout rate of 88%, compared to Mr. Odinga’s 84%.

In related news, tomorrow Mr. Odinga will officially file the petition that seeks to nullify Mr. Kenyatta’s election as president.

CORD may seek the nullification of the whole election or narrow their challenge to just whether Mr. Kenyatta actually crossed the 50% threshold.

Crucial figures to think about as we await to see the content of the petition tomorrow are (1) 10.6m votes were cast in the 47 governor races compared to 12.3m in the presidential race, a difference of 1.7m votes; and (2) Mr. Kenyatta crossed the 50% threshold by less than 10,000 votes.

More on this next week.