Tag Archives: willy mutunga

Kenyan pollster Ipsos explains why they missed the mark

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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.

The new constitution and patronage politics in Kenya

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Former president Moi infamously liked warning voters that siasa mbaya maisha mbaya (bad politics leads to a bad life). This was code for vote for the opposition and no roads, no schools and no hospitals for you.

The framers of the new Kenyan constitution must have particularly disliked the power of the presidency in doling out development money and other patronage largesse. According to the Daily Monitor (Ugandan Daily):

“From 2012, it is likely to have the most limited presidency in Africa. The president has only about 10 per cent of the budget to dole out his patronage and fund his pet projects. The bulk of the rest are fixed; both by a constitutional cap, and a negotiation process.”

It will be interesting to see how the Kenyan presidency evolves following this revolutionary clipping of its powers. Already the executive has seen its powers watered down by an increasingly powerful parliament. To reinforce this trend, the judiciary has just seen the appointment of a card carrying reformer as Chief Justice. A powerful judiciary will provide a check not only on the presidency but on the wider executive branch as well – especially the now independent and obscenely corrupt Kenyan ministries.

Credit for the relatively more limited presidency also goes to President Kibaki.

Many forget that for a long period of time Kibaki governed with Moi’s constitutional powers. It is a relief that the limited presidency will now be both de facto and de jure, especially because there are way more Mois than Kibakis vying for the presidency in 2012.

A word of caution, though. Institutions are not automatic fixes to problems of governance. They are like incomplete contracts that have to be reinforced by numerous conventions and “gentleman agreements.” The Kenyan political elite may yet find ways to circumvent the spirit of the new constitution.


Kenyan supreme court takes shape

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Judicial reform in Kenya made another big leap with the appointment of five individuals to the Supreme Court, the highest court in the land. Njoki Ndungu, Jackton Ojwang, Smokin Wanjala, Mohammed Ibrahim and Phillip Tunoi will join the Chief Justice, William Mutunga, and his assistant Nancy Baraza [Ms Baraza has since been replaced with Justice Kalpana Rawal] on the court.

Mutunga and Baraza will champion liberal views on the court – the Church and other conservative elements in Kenyan society unsuccessfully fought against their nomination to lead the Supreme Court. Messrs Tunoi and Ojuang will represent conservative views. Ndungu, Wanjala and Ibrahim are believed to be centrists.

The Supreme Court will provide the final word on constitutional matters as well as petitions involving presidential elections.

Although one can’t dismiss the possibility of political jockeying behind the scenes, the nomination of all seven justices was a coup for Kenya’s civil society. The Judicial Service Commission sought a clean break with Kenya’s muddy judicial history. None of the high-flying judges from the Moi and Kibaki eras got a nod to join the court.

Because this is Kenya, the JSC also made sure that the seven nominees reflected ethnic and regional balance. The ethnic balance in the nominations will ensure that parliament approves them.

Overall the court appears to have a progressive make up, albeit with a rightward tilt. This is good for Kenya.

In related news, the Kenyan parliament also approved the nomination of Keriako Tobiko to be the director of public prosecutions. Mr. Tobiko’s nomination was not without controversy, with civil society groups and a section of MPs accusing him of corruption and incompetence. In the end his nomination passed through.

The next big battle over judicial reforms will be over the appointment of the Attorney General.

blurring the line between church and state

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The Catholic Church has urged Parliament to interrogate the moral values and family principles of two judicial nominees before approving them.

The Church came short of rejecting the nomination of Dr Willy Mutunga and Ms Nancy Barasa for the positions of Chief Justice and Deputy Chief Justice respectively, over questions raised about their controversial moral standing.

“The excessive emphasis on academic excellence and radical reformism is not sufficient. Justice fundamentally involves moral order,” said the Church in a statement signed by all the bishops and read by Cardinal Njue.

That is Cardinal John Njue as quoted in the Kenyan daily the Standard.

As part of the implementation of the new constitution the Judicial Service Commission recently nominated Willy Mutunga, a card carrying liberal and reformer. Many in the Kenyan right, including the Church, have come out against Dr. Mutunga – some even pandering to Kenya’s overall conservatism by claiming that Dr. Mutunga might be gay (notice Njue’s comment about “moral order”). Weird stuff.

A part of me thinks that the church is being used by people who know they will lose big time if Kenya’s judiciary gets cleaned up. This talk of morality is horse manure mere hot air. Dr. Mutunga is not a threat, at all, to the country’s conservative character – wrongly conceived or not. He is, however, a nightmare from hell for those who have benefited from corruption since 1963.

The church was on the wrong side of the constitutional debate in 2010 – and lost. It appears that they have not woken up to reality yet. Kenya is changing. If it wants to remain relevant it must change, too.