Thoughts on the Supreme Court’s Annulment of Kenyatta’s Reelection

When Raila Odinga and NASA rejected the outcome of the August 8th presidential election, they were alleging what sounded like a perfect conspiracy.

At the time, all the evidence I saw appeared to go against their claims. All the polls except one had Kenyatta in the lead; Kenyatta’s party had won handily in down ballot races, especially in crucial swing areas; and even a PVT appeared to support the IEBC’s results. Belief in these disparate data points was not necessarily a sign of naïveté, or a desire to sanitize blatant fraud.

But in NASA’s view, all this was part of a grand conspiracy. The Independent Boundaries and Election Commission (IEBC) and President Uhuru Kenyatta’s campaign had conspired to steal the election by hacking the results transmission system. In support of their claim they presented evidence of the near-consistency in the gap between Odinga and Kenyatta from the time polls closed to the time Kenyatta was announced the winner. This despite the fact that results were supposed to stream in randomly from polling stations to the national tallying centre. They alleged that Chris Msando, an IT specialist at the IEBC, was tortured and murdered ten days to the polls precisely to make this possible. They also claimed that IEBC’s results were not backed by Forms 34A, a statutory requirement under Kenya’s election laws; and that the IEBC violated the law by not following the procedures of announcing results set in law.

Kenyan election laws require presidential results to be announced at the constituency level. The IEBC is required by law to announce 290 separate results at constituency tallying centres based on Forms 34B, then tally the same to come up with the overall winner. The transmitted results in Forms 34A are supposed to match constituency results in Forms 34B. To rig the election, one has to make sure that the numbers matched on both forms — not an impossible task, but a difficult one to pull off.

Tampering with 40,000 Forms 34A and then making them match with 290 Forms 34B is not an easy task, or so one would think.

In a ruling that stunned the world, this morning the Supreme Court, in a 4-2 ruling, found enough evidence to support the claims by Raila Odinga and NASA, annulled the reelection of Uhuru Kenyatta on August 8th, and ordered a fresh presidential election within 60 days.

Two justices, Jackton Ojwang’ and Njoki Ndungu, voted against the finding. Justice Mohammed Ibrahim was unwell and missed the vote. Justices in the majority were David Maraga (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Smokin Wanjala, and Isaac Lenaola.

I am yet to see the text of the ruling, but the Court decided to focus on procedural matters and not the actual tampering with results. In the justices’ view, the IEBC failed to adhere to the Constitution and Kenya’s election laws in the conduct of the presidential election. The ruling is an affirmation of procedural conformity as the ultimate test of the credibility of presidential elections in Kenya.

But courts are not entirely apolitical. From a political perspective, it is obvious that a procedural deviation was not the only factor that compelled 4/6 justices to annul the election. On explicitly political matters, courts tend to defer to politicians in Kenya. In 2013 the Supreme Court upheld the election of Kenyatta. But this time round the justices looked into the IEBC’s backroom and did not like what they saw.

The effects of this ruling will reverberate for years to come. Here are some initial thoughts.

  1. This is a powerful political vindication of Raila Odinga: His claims of having been robbed in 2007, 2013, and 2017 had cast him as a perennial sore loser (I believe he was most certainly robbed in 2007). This ruling adds credence to his claims. After today Odinga’s legacy as the father of Kenyan democracy is secured.
  2. Kenyatta is probably still a favorite in the re-run: Odinga’s turnout issues will not simply vanish with this court ruling. Furthermore, Jubilee will most certainly use its team of elected officials to drum up support for the president. The power of incumbency will be in full force (notice that the Supreme Court found no wrongdoing on the part of Kenyatta, despite clear involvement in public officials and use of public resources in his campaign). Kenyans are about to be treated to a most grueling political fight over the next 60 days. I cannot wait for the next opinion poll.
  3. This is a big win for Kenyan institutions and political development: It is fair to say that not many people predicted this outcome. While the Supreme Court was under pressure from both NASA and Jubilee, it was also faced with the fact that its decision would have long-lasting ramifications for Kenyan jurisprudence. The fact that they were able to issue a brave ruling confirms the independence of the Kenyan judiciary and the continued institutionalization of rule of law in the Jamuhuri.
  4. It is up in the air whether Kenya will indeed have elections in 60 days: Odinga will certainly demand for changes at the IEBC before he can take part in any poll. Kenyatta will want to get this over with within the time stipulated by the constitution. Kenyatta has the institutional and constitutional upper hand — he has majorities in the National Assembly and the Senate. But Odinga has the moral upper hand. He will likely summon his supporters to the streets, if need be, to force changes at IEBC — just like he did in 2016. The current IEBC leadership has already indicated that they are not going to resign, despite the stinging indictment from the Supreme Court.
  5. I am curious to see if there will be any shifts in alliances at the elite level: On the one hand, Kenyatta is the incumbent, and has the upper hand in securing support from key elites. At the same time, however, if the outcome of the re-run is sufficiently unclear, elites may have reason to believe that Kenyatta cannot win a credible election. In this case the rational thing to do would be to bandwagon with Odinga. Odinga’s elite base outside of his core support is composed of diehards. Kenyatta’s base outside of Central Kenya is more transactional. Expect to see a lot of public elite endorsements of either Kenyatta or Odinga over the next 60 days. As Kenyans say, money will be poured.
  6. This is egg in the face of election observers: Peaceful voting and counting of votes should not be the only tests of an election’s credibility. Observers must signal their willingness to call out any and all deviations from established statutory processes. This is the only way to tie the hands of relevant political actors and to enhance the signal to noise ratio of information coming from observer reports.
  7. All Kenyans of good will and friends of Kenya should work to consolidate the gains made today: Kenyan electoral laws are pretty elaborate. If enforced, and backed by technology, they can deliver a credible poll. The goal should be to tie the hands of the IEBC to ensure that the voting, the counting, and the transmission of results stick to statutory procedures. Kenyans will respect the outcome if the process is (and appears to be) transparent.

 

 

 

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Making Sense of Competing Visions of Kenya in the Jubilee & NASA Manifestos

This is a longer version of my column in the Standard this week.

This week the leading political blocs in the upcoming General Election released their respective manifestos. Jubilee sought to convince Kenyans that it needs another term in office to finish the job it began in 2013. The National Super Alliance Coalition (NASA) presented an agenda for the full implementation of the 2010 Constitution, focusing on equity and inclusivity. Both documents present competing visions of where we are as a country, and where we ought to go.

On one hand, Jubilee which sees the country’s problems as rooted in poor infrastructure and a lousy business environment. Its vision of government intervention in the economy is thus driven by the need to facilitate private investment (mostly through crony capitalism, but also through streamlining of the regulatory environment).

jubilee

But on the other hand is NASA, whose manifesto suggests a firm belief that the ambitious 2010 constitution has yet to be fully implemented; and that the country still requires structural transformation in order to guarantee equitable sharing of national resources, social inclusivity, and equality before the law and the government.

On a spatial left-right scaling, NASA’s manifesto is decidedly to the left of Jubilee. This is reflected in both the specifics in both manifestos and the choice of words in the documents. NASA (see image below) envisions a much bigger role for the government in the effort to transform Kenyan lives than does Jubilee (see above).

Both manifestos and visions for Kenya’s future have merits and demerits. Jubilee has a case to make for working with the country we have without re-litigating the political settlement of 2010 and its (partial) implementation since 2013. Restructuring society doesnasa not always yield the desired results, and often comes with instability. Their vision of doing their best to build infrastructure and letting hardworking Kenyans do the rest makes sense if one believes that you go to battle with the army you have. Their proposed vision of Kenya is grounded in the idea that a rising tide, even if marked by high levels of inequality, lifts all boats. Simply stated, it is a vision that prizes ends rather than means.

NASA’s vision of structural transformation is also valid in its own right. It prizes means and ends. Their plan for Kenya is informed by the idea that no society can continue to cohere if a section of citizens have deep feelings of structural inequality and discrimination. That we can have all the roads, water and sanitation, and bridges we need, but still flounder if a sizable proportion of Kenyans still feel like second class citizens in their own land. They also contend that inequalities today will breed inequalities tomorrow, and that a future in which only a small segment of the nation has access to the most lucrative economic opportunities and the best government services – simply on account of the language they happen to speak – is one destined to bring conflict. In a nutshell, NASA’s is a nation and state building manifesto that promises to not only increase the number of sufurias in Kenyan kitchens, but also create a new kind of nation-state devoid of the “culture of madharau.”

A priori, it is hard to say which vision fits the country best at this point in our history. Kenyans who have seen their lives improve over the last four years will most certainly want to eschew any radical changes — this is true, despite recent worrying headline economic numbers. Those who have seen their economic situation stagnate or worsen want change now. Looking at the numbers, there is ample evidence in support of either argument.

This is why, unlike some partisan observers, I see no reason to worry that the world would end if either Jubilee or NASA wins. The truth of the matter is that life will go on as before — with messy and contested politics at every turn, and high levels of economic inequality.

It is extremely hard to change or ignore social forces.

If Jubilee wins, it will be hard to continue ignoring issues of equity in perpetuity. Eventually, even diehard Jubilee supporters will realize that the crumbs that fall off the table are a raw deal. In the same vein, a NASA win will not necessarily produce a radical transformation of the Kenyan state. Once in power, the coalition’s leadership will most certainly be disciplined by our unwieldy political economy dominated by so-called cartels and our general structural conservatism.

As a student of political development, all I can say is that either path will lead to further consolidation of our political economy — either through further entrenchment of a hierarchical order (under Jubilee); or the widening of the economic upper class (under NASA).

Below is a list of what I consider to be the highlights of both manifestos. Consistent with the claims above, the Jubilee manifesto has specifics on many of its promises, while NASA’s largely sets out frameworks within which it will seek to transform Kenyan lives and the nation-state.

Jubilee:

  1. Investments in universal secondary education and 100% transition from primary to secondary school
  2. Completion of 57 large-scale dam projects to improve water access and irrigation
  3. Setting aside 1% of R&D funds to document and disseminate lessons and best practices in policymaking from the 47 counties
  4. Increase of electricity access to up to 100% of Kenyan households (from current ~53%)
  5. Complete several ongoing and planned transport and energy infrastructure projects (six-lane highway from Nairobi to Mombasa, Isiolo-Lamu road, SGR to Malaba etc) 

NASA:

  1. An ambitious nation and state building framework to guarantee equity and inclusivity
  2. Strengthening of the devolved system of government (including in areas of education, health, and agriculture)
  3. Investments in improving agricultural productivity (including for smallholder farmers)
  4. Expansion of social protection for households with orphans and vulnerable children
  5. Implementation of regionalized (cross-country) development plans

 

Elections 2017: David Ndii makes a rather weak case for new wine in old wineskins

This is from the Daily Nation:

The idea that political alternative necessarily means different or new people is a fallacy.

One of the most bizarre moments in my political life was walking into the Serena Hotel’s ballroom for a cocktail to celebrate the formation of Narc, and scanning the room to see Kanu stalwarts George Saitoti, Joseph Kamotho and William Ntimama mingling and laughing heartily with their erstwhile mortal political enemies.

It was the strangest and most confusing feeling.

I stayed only a few minutes and went home quite depressed.

I had the privilege of working with Saitoti thereafter and I have to say he turned out to be one of the most committed and progressive ministers in the Narc government.

“If the opposition is not an alternative” had obtained in 2002, Narc could not have been an alternative to Kanu because even its presidential candidate was a long time Kanu stalwart who once compared felling Kanu with trying to cut down a mugumo tree with a razor blade.

Yet it is undeniable that Narc’s election was a watershed in our political history.

More fundamentally, the narrative glosses over the fact that we have a very clearly defined ideological cleavage in this country that goes back to the Kanu-KPU fallout shortly after independence.

Opposition in Kenya means opposing the Kanu establishment. It means standing up for political equality and social justice.

I am not convinced. For two reasons.

First, I have always found issue with depictions of Uhuru Kenyatta as a latter day Moi (or wannabe dictator). He is not. In my view Kenyatta is simply a poor administrator with a thin skin and lots of sycophantic lieutenants (not to mention a very ambitious deputy). Combine these together and you get lots of failures at different nodes of the administration; and lots and lots of stealing (the definition of a common-pool problem). Is Kenyatta himself corrupt? Perhaps. Does he have a masterplan for taking us back to the baba na mama era? I doubt it.

This doesn’t absolve Kenyatta of any of his failings highlighted by Ndii. It certainly sucks to live in a poor country on autopilot and with an “absentee-landlord” president. Rather, it’s a call for a proper diagnosis of the real causes of the failures of the Jubilee administration.

Second, the ideological commitments of members of the opposition are sketchy. When its leading lights were in government (briefly after 2003 and then after 2008) they did not behave any differently than the alleged Kanu Establishment (with the possible exception of Charity Ngilu). Just because Raila Odinga claims to be a social democrat doesn’t mean that we should believe him. His actual track record suggests that as president he would probably be somewhere between Jomo Kenyatta and Kibaki in style — able to delegate, primarily pro-business, big on elite-level ethnic regional balance, but also keen to use coercion when necessary (which is why I am always amused by Railaphobia scaremongering that depicts the man from Bondo as a rabid anti-wealth, pro-poor socialist. Look at the man’s record. He is no more pro-poor than is Kenyatta).

Musalia Mudavadi, who stands the best chance of beating Kenyatta this August atop a united opposition ticket, is essentially a scion of the Kanu Establishment.

Change for the sake of change is not always a good thing.

The case that an opposition government would be less corrupt, more competent in managing the economy, and more inclusive than Jubilee is fairly weak. After nearly fours years under the system of devolved government, the opposition’s record on actual policy performance is paper-thin. Their governance record is nothing to sing about. For instance, CORD controls the big urban counties of Nairobi, Mombasa, and Kisumu. Wouldn’t it be nice if they had something to point to as evidence of their administrative and policy competence? Where does the opposition stand on agricultural policy? Health policy (do they even know that there is an ongoing doctors’ strike)? Education policy? Housing and land policy?

Can we really say with a straight face that the leadership of opposition counties have sought to channel Oginga Odinga, Kaggia, JM, Pinto, Murumbi, or Seroney in their policies? Does the Kenyan left even exist anymore among the political class?

The Jubilee government has failed on many fronts, and ought to face a strong challenge come August. But the Kenyan public shouldn’t be expected to hand the opposition the keys to State House simply because they are in the opposition. They must first show wananchi what is in it for them. They must demonstrate that they get the issues that affect the proverbial number of sufurias in Kenyan homes.

PS: This is not some starry-eyed case for a third force. Rather it is a call for more rigorous arguments for either reelecting Jubilee or voting for the opposition from their respective intellectual backers. I am a big believer in making do with the politicians we have.

PSS: It is sad that 2017 will not be about the counties. It ought to have been about the counties. And bringing government closer to wananchi.