I just returned from a few days at the annual conference of the African Studies Association, held in Washington this year.  This gave me the chance to hear presentations by and informally rub elbows with some of the most knowledgeable experts on Kenya and African democracy and governance from a variety of places and institutions around the world.  The summary overview is that as we approach four years from the last election, there is so much that is still “up in the air” about the next one that it is impossible to know much about how it will play out.

Here is my view of where things are:

1.  The election date remains in active dispute.  Much Kenyan opinion holds that the new Constitution mandates an election in August of 2012 which is fast approaching.  The members of the brand new electoral commission have said in the recent past that they cannot be ready by then.  The Cabinet has just withdrawn a bill in Parliament to amend the Constitution to move the date [update: the Speaker has ruled that the bill may be re-filed tomorrow and be heard] and the Supreme Court has ruled that the matter must come up through normal channels through the High Court rather than be determined by an advisory opinion.

2.  While it is positive that the new Independent Electoral and Boundary Commission has been formed in a process widely seen as appropriate, the time involved means that we do not yet even know the constituencies and boundaries for the new elections; further this new Commission is untested.

3.  The issue of implementing the gender balance in Parliament under the new Constitution remains unsettled.  A lot of seats and salaries are at stake on this issue.

4.  Candidates, parties and coalitions remain very much unsettled and can be expected to remain so.   There has been very little obvious progress in actually enforcing the laws governing political parties and elected officials in relation to parties.  The relationship between “parties” and “coalitions” remains elusive.

5.  Politics in Kenya certainly seems more openly ethnic now than at a similar time in the 2007 election cycle.  One could perhaps make the argument that it is better to have it more “on the table” rather than “under the table”, but I do not necessarily buy that.  Regardless, there is this time no basis for outsiders to underestimate it.  How this will play out in the campaigns is unknown.

6.  Like in 2007, we have high inflation rates for staples such that the wananchi are being squeezed on the basic cost of living–while the GDP growth rate in the region and in Kenya is much less robust than in 2006-07–all aside from the drought and food crisis in many regions.  Whether this will get better or worse as the election approaches is unknown.

7.  Corruption remains a huge issue.  Overall there may have been some small progress at the margins, but in reality the accumulation of exposed cases of major graft in which no one major has been prosecuted just continues to grow.  The corruption in the 2007 election specifically was swept under the rug.  No one has been held accountable and the facts have remained concealed enough that any politician or spokesman can say whatever they want about what happened last time.  It seems to me hard to argue that there is much deterrent in place to attempts to corrupt the 2012 elections.

8.  The threat from terrorism seems to be greater and this time Kenya itself rather than Ethiopia is at war in Somalia.

No one that I heard or talked to seemed to feel that we knew much more about how the next Kenyan election might play out now than we did when I attended the same conference in New Orleans in 2009.

And yet, I picked up on what I see as disturbing reports of a repetition of the complacency that we got burned by in 2007.  At the risk of sounding “preachy” I want to argue passionately that this is a mistake.

Okay, Kenya had a peaceful and well accepted referendum in 2010 when there were worries about violence.  Let me explain why I don’t think at means so much in regard to 2012.

First, the referendum was not a close election–just as the 2002 NARC election was not a close election.  The question in the referendum was how big the margin would be, not whether it would pass.  Since the outcome of the referendum was not in play it would not have been impacted by violence or protests one way or the other.  In 2007 the outcome was in play and disputed and violence served the interests of both sides to a point.

If there had been no protests regarding the election Odinga would never have become Prime Minister–and the incumbent government was clearly committed to not allowing protests, and clearly prioritized keeping power over security for the public.  At the same time, if there had not been a murderous mobilization of Kalenjin militias against Kikuyu in the Rift Valley to the point of what Assistant Secretary of State Jendayi Frazer controversially labeled “ethnic cleansing” there might have been some remedial action about the subversion of the election count itself.   This was the approach initially advocated by the EU and other Western countries.  I would like to think that if this militia violence in the Rift Valley had been less egregious that perhaps the higher levels of the U.S. government might have come around to some form of election remediation in spite of the U.S. Ambassador’s approach.  Obviously I have no way to know–but the point remains, I think, that even the violence against Kikuyu in the Rift Valley in a way indirectly helped keep for Kibaki the new five year term that the ECK awarded him.

The bottom line is that violence ended up “working” in a sense for certain political interests in 2007-08–and the price was paid only by the wananchi so far–whereas there was no political utility for such violence in 2010.

Further, the referendum was a national vote and the outcome at individual polling centres and in localities and regions did not directly matter–very unlike the simultaneous election of the President and MPs and local officials in Kenyan General Elections.

On balance, the 2010 Referendum seems to me to provide less reasonable assurance about a clean and safe General Election in 2012 than the2002 General Election and the 2005 Referendum would have provided in 2007.

There are Kenyans whose opinions I respect who think that the era of election violence is over in Kenya because of the actions of the ICC to date.  Perhaps.  I hope they are right, but I do not see that it makes sense to bet anyone’s life on it. Which presidential contender today is showing up in the polls as less popular because he was charged by the ICC prosecutor and named in various investigative reports about the post election violence?  Who knows what will happen with the ICC process or what impact it will ultimately have?

The key for Western donors is to be prepared for contingencies rather than guessing and gambling about what might or might not happen.  To have the political will to “call out” the electoral commission before the election if it abandons the practices and tools that are clearly necessary to have a transparent and reliable election.  To reserve judgment on the process until it is concluded.  To speak out, at least, if Kenya’s paramilitary  security forces are diverted for political purposes such as sealing off Kibera and defending Uhuru Park to keep it free of protestors.  To commit to transparency to assure trust.  And to decide now how to respond to violence if things go wrong later.

To close this, I am going to fulfill a personal request from someone from the West who was importantly involved in trying to help the process last time by linking to an account of a Kenyan investigative journalist to the Kriegler Commission about what was happening in Kibera in the last election.  I have to do this with a READER DISCRETION ADVISED WARNING–this is not “family-friendly” reading.  I have no personal knowledge of any of the specifics but this does come with the personal recommendation of someone very credible who knows the source well.  We all know that Kenyan politics can be murderous and there is no reason to be complacent.