Now that it is clear that Kenyatta and Odinga will be leading Jubilee and ODM to sponsor constitutional referendum ahead of #Kenya2022 what can be done to triage the outstanding problems w/ Election Commission as seen 2007-17?
[Revised June 26]: Here is an outline of my thinking on a potential Raila Odinga run for President of Kenya as the choice of what is still the informal coalition amongst ODM, Jubilee and most of the larger established “third parties” in 2022:
1) Two years in we still do not know the actual “deal” reflected in the 2018 Kenyatta-Odinga “handshake”. What we do know is that it was concluded very discretely between the two men and their closest personal associates to the exclusion of their “running mates”, parties and coalition partners.
2) The extraordinary discretion has remained intact to the point that as the informal 2022 campaign has proceeded and heated up, public speculation died off and attention shifted to the intermediate issues such of coalition formation, Uhuru’s consolidation of control of Parliament, the upcoming referendum (presumably to set up the execution of the handshake deal).
3) My personal opinion has been over the years that it was a big mistake that the position of Prime Minister “went away” in the “back room” at Lake Naivasha when the Kibaki/PNU and Odinga/ODM leaders set the final terms of the new Constitution to go to referendum in 2010. That was a key fault of the “Wako Draft” that was the raison d’etre for the Orange Democratic Movement from the 2005 referendum in the first place. If the position had not “gone away” Raila could have served his second term as Prime Minister in 2013-17 and the whole UhuRuto anti-ICC “coalition of the killing” scenario could been avoided (which perhaps explains why Kibaki would never let it happen). Hypothetically, if Kenyatta in early 2018 wanted to keep a hand in government and reduce risks to his interests after his term would end in 2022, it would seem relatively straightforward for Odinga to agree to cooperate in fixing that omission in the Constitution in return for support to finally get his turn in State House (even with more circumscribed power).
4) We have had two years to see that the Uhuru-Raila “friendship” is substantive and involves some real level of commitment between the two men. Both have shown uncharacteristic discipline and forbearance toward each other. Perhaps they have some knowledge in common that the rest of us are not directly in on?
5) Raila has been on his best statesman-like behavior, speaking to regional, continental and international issues and avoiding being embarrassed by old friends, like Tanzania’s Magufuli, who have fallen afoul of international opinion, even to the point of public criticism of Tanzania’s COVID response.
6) The main risk to the Kenyatta family “legacy”, the growing business empire, would be a single party strong president at odds with the Kenyattas. Whether or not there was actual intention back in 2012 to follow through on supporting Ruto in 2022-32 (which would only be known by the tightest insiders, the sort of who know the details of the superseding “handshake”) it is now abundantly clear that Ruto has been non-compliant in subordinating himself and would pose unacceptable risk.
7) None of the other candidates of national stature and recognition aside from Raila seem to compare favorably to Ruto as a popular campaigner. Most reached identifiable peaks some years ago and do not have clear command even of their own regions, especially in a devolved system where there are many more centres of patronage and exposure than in years past.
8) While Raila can be characterized as a “perennial candidate” he is widely understood as having actually won in 2007 (see my “War for History” page). He can point to his role as Prime Minister under Kibaki as an example of working in compromise with the dominant Kikuyu elite to secure some benefits for his own opposition constituents and as leading the most significant post-1964 reform effort in passing the 2010 New Constitution as an element of the “peace deal” and “National Accord” arising from his 2007 campaign (and bucking Kibaki to lead defeat of the 2005 “Wako Draft”). His other key “deliverable” was forcing “consultation” by Kibaki in 2011 after the President announced unilateral appointments for Attorney General and Chief Justice of the Supreme Court, leading ultimately to the selection for the Court of international civil society leader and “second liberationist” Willy Mutungu through the Judicial Service Commission in return for Kibaki’s Attorney General choice. While I think it is clear that there should have been a runoff in 2013, Raila accepted the Supreme Court’s controversial affirmation of the 50.07% determination of the then-IEBC. In 2017, he won a reversal at the Supreme Court and stuck to his guns to boycott a referendum without his criteria for reforms and held on through extreme diplomatic pressure to his “People’s President” swearing in while negotiating toward his ultimate deal.
9) Progressives who see a “BBI Referendum” as an elite pact to water down the new constitution (see my last post about the recent writings of Yash Ghai) will face a difficult situation of realpolitik if they align with Ruto to campaign for “No” on a referendum. Ruto was the leader of the “No” campaign against the whole of the reform constitution itself in 2010, and a victory in a “No” campaign in coming months would position him as the populist “giant killer” going into 2022. Much of the 2010 constitution’s “progressivism” has laid dormant for ten years already–do they really expect a better deal from a Ruto succession? Can they realistically hope to start from scratch without an existing voter base to elect some “third force” reformist quickly after a referendum?
10) My sense is that with Uhuru’s support through a consolidated Jubilee, Raila would be generally acceptable to the major external players, the United States and China, along with the UK and France, as well as the other democratic European development donors, Japan and South Korea along with the Gulf States and others. Ruto, on the other hand, seems to be seen as just too crudely corrupt for development donors to warm up to.
11) Commentators are already raising the notion of a risk of election violence for 2022. As in 2013 especially, the idea of affirmative “peace promotion” provides a tremendous advantage for whoever starts out with the most power and disincentivizes open questions about democratic niceties like failed Results Transmission System acquisitions leaving incomplete and contradictory tallies. Ruto has had ten years as Deputy President on the strength of his understood role as the champion of his side of the fighting in the Rift Valley in 2007-08. He has a great deal more to lose now than he did then and fewer, less powerful allies it would seem. The implied threat was a lot more valuable in 2013 when it coincided with the interest of the Kenyattas, also in the dock for the 2008 retribution. The violence worked very effectively for the leaders of both sides in the wake of the stolen election in 2007, so we have to acknowledge that background, but I think the “usual suspects” will have different interests in 2022 and I do not see the implied threat generating the clout for a Ruto presidency that it generated for him as deputy.
12) Conspicuously, I have said nothing about the critical problems faced by most Kenyans today. I have not changed my mind about the performance of the current government (nor are my thoughts here new–I just see possible confirmation as events play out). I am not addressing what should be or could have been as opposed to what I see.
Democracy International (DI) organized a comprehensive international observation mission for the constitutional referendum in Egypt on January 14 and 15, 2014. Although the actual administration of the process on the referendum days appeared to allow those citizens who participated to express their will, DI concluded that the restrictive political climate in Egypt impaired the referendum process. The referendum took place against a backdrop of arrests and detention of dissenting voices. There was no real opportunity for those opposed to the government’s “roadmap” or the proposed constitution to dissent. This constrained campaign environment made a robust debate on the substance and merits of the constitution impossible.
EU Foreign Minister Catherine Ashton announced today that the EU would be observing the presidential election scheduled for May 26-27. See the Project on Middle East Democracy Egypt Daily Digest. This may make it more difficult for any decision not to mount a full American observation under USAID, but it strikes me as premature to commit to observing without seeing some progress on the types of concerns that are identified in the Democracy International report on the campaign environment back in January. The ability to “witness” on the ground and report accurately on the environment has value but in a presidential election under the circumstances there is risk of being seen as inadvertently giving legitimacy if there is not a bona fide effort by the existing authorities to allow a real competition.
Democracy International, which according to the Financial Times “fielded the most robust international monitoring operation,” expressed “serious concerns” about the political environment preceding the latest vote. “There was no real opportunity… to dissent,” said the Washington-based consultancy. “This constrained campaign environment made a robust debate on the substance and merits of the constitution impossible.”
Transparency International, which also sent observers for the referendum, condemned “repression by state authorities” prior to the vote. The government “harassed, arrested, and prosecuted peaceful critics, closing democratic space to promote views and debate before the referendum,” said the Berlin-based anti-corruption organization.
The U.S.-based Carter Center, which observed the previous constitutional vote, said it was “deeply concerned” by the “narrowed political space surrounding the upcoming referendum.” It said it would not field observers this time because “the late release of regulations for accreditation of witnesses” meant that the Center would be unable to do its job properly.
The result was “the least free and fair of the five national referendums and elections held since Egypt’s military-backed dictator Hosni Mubarak was pushed from power by mass protests in February 2011,” wrote Christian Science Monitor correspondent Dan Murphy. For all Mursi’s faults – and he had many – at least there was a vigorous campaign against his constitution, by opposition groups that were not outlawed.
. . . .
Just as Mursi’s constitution exacerbated national divisions while promising the opposite, the same is true of its replacement. It has simply entrenched the idea of three increasingly irreconcilable Egypts: that which supports Sisi and the military, that which backs Mursi and the Brotherhood, and that which opposes both.
This process will continue with the almost-certain scenario of a military figure (Sisi) as the next president, and an ever-widening clampdown on dissent. Mubarak must be getting a strong and satisfying sense of deja vu.
Crucially, there is no sign that approval of this new constitution has made, or will make, any positive difference to the country’s myriad and chronic problems. If anything, deadly violence is worsening, wholesale disenfranchisement is becoming more entrenched, human rights are being trampled on by a fully resurgent police state, and the economy remains on life support.
. . . .
In the meantime, Al Jazeera East Africa correspondent Peter Greste and his colleagues continue to languish in jail after another inconsequential appearance in court as reported by the Australian Broadcasting Corporation News:
. . . .
It was Greste’s fourth appearance in court, after more than 90 days in prison, and in an unusual move he was allowed to directly approach the judge and tell him why he should be freed.
In words translated for the judge, Greste said that he had only been in Egypt for two weeks before his arrest and he had no connection with the Muslim Brotherhood.
He also said that he had committed no crimes of violence, had no criminal record, and that he posed no threat to the people or state of Egypt.
Greste told the court his only desire was to continue the fight to clear his name.
Fellow defendant Mohamed Fahmy pointed out that Greste is a Christian, making any alleged support for the Muslim Brotherhood unusual.
Fahmy also argued that because he himself drinks alcohol, he would not be a member of the Brotherhood.
Three so-called technical experts who presented to the court were supposed to look at Greste’s stories and rule on whether they were biased towards the Muslim Brotherhood and whether they were seeking to tarnish Egypt’s reputation.
However, that did not happen because there were no facilities for it in the court.
. . . .
In the environment of the repression by the interim government and the military itself, the Egyptian judiciary’s performance in handing down a perfunctory mass death sentence last week and otherwise failing to offer a pretense of due process to other detainees like the Al Jazeera journalists makes it hard to have confidence in their independence in overseeing a May 25-26 presidential election in which Sisi has now announced his candidacy.
Let me recommend a good earlier piece by Tarek Radwan and Lara Talverdian of the Atlantic Council on the council’s Egypt Source blog, “Reflections on a Referendum.” I enjoyed getting acquainted with them in observing the referendum and they did a good job here of capturing the atmosphere at the January vote.
The great puzzle for those of us who have worked on “democracy promotion” or “democracy support” in Kenya has been whether there is something that can be done to assist Kenyans in building meaningful, coherent political parties that are more than amorphous vehicles for individual ambitions and a “tribal” spoils system. The record in this regard has been discouraging. When I was with IRI in 2007-08, one of my European counterparts of long experience explained that his organization had concluded that the effort was simply not fruitful and resources were better spent in other areas.
At this point I am afraid that we see some history repeating itself. TNA is having difficulties with the inattention of its titular leader, President Kenyatta. It is not hard to see TNA now as simply a vessel for Uhuru’s campaign, a means that he created to line up his core Kikuyu support when, supposedly, there was significant sentiment among the elites to find alternatives due to the difficulties of the ICC charges, and even the notion that it might be safer to chose Mudavadi or someone else who was an amenable insider but a member of another tribe. Certainly Uhuru’s record as a party builder is not encouraging. After being tapped as KANU leader by Moi in 2002 and losing to Kibaki he kept leadership of the party (with Ruto as a Secretary General) and was one of the leading figures in the formation of the Orange Democratic Movement as leader of the Official Opposition in Parliament, campaigning against the “Wako Draft” constitution in Central Province during the November 2005 referendum.
Nonetheless, as things were shaking out to nominate a presidential candidate for the ODM side in the second half of 2007, Uhuru made the unprecedented move as leader of the parliamentary opposition to cross over to support Kibaki’s re-election. Moi also announced his support for Kibaki in this time frame. Uhuru kept formal control of KANU but the party was gutted as most of the potential KANU voters in the Rift Valley went with Raila, along with Ruto who formally joined ODM, contested for the nomination there and served as a key figure in the “Pentagon”. Then Uhuru himself struck out to form TNA for the 2012-13 race.
I hope everyone has had a good Christmas. I am grateful for a comfortable time with family, while saddened by news that a friend in Kenya lost a family member to a shooting by the Police. All of us interested in East Africa are watching South Sudan with great concern.
On Kenya, beyond the steady heartache of one more in the steady stream of police killings, as another year ends, I am struck by one point of clear change from my initial arrival in Nairobi in 2007 to now. The passage of the draconian 2013 Media Bill was a major setback for democracy. The bill seemed clearly unconstitutional when it originally passed parliament. After both Kenyatta and Ruto assured that they would respect the Constitution and the spirit of a free press, Kenyatta sent the bill back with proposed changes making it on balance worse, after which it was passed and signed into law.
Back in 2007 a far less noxious media regulation bill passed parliament just after I moved to Nairobi in June. U.S. Ambassador Ranneberger along with most of the rest of the diplomatic community representing leading democracies spoke out strongly against the threatened intrusion on press freedom. Kibaki declined to sign the bill and it was much watered down. While there was a certain amount of self-censorship the press remained relatively vibrant during the 2007 election campaign. Now that a more troubling law has actually been enacted the diplomatic community including the United States has been largely silent. While there have been protests by journalists and civil society, the Government has predictably brushed these aside, but has not faced open diplomatic pressure from donors.
For some years after the 2007 election debacle the United States was consistently promoting what we called “the reform agenda”. While all the parameters of “reform” were not specified, I think it is fair to say that at its core it was about the continued shifting of power away from a traditionally dictatorial presidency to develop democratic institutions. The original post-Cold War reforms were Moi’s acceptance of changing the law to allow non-KANU parties and the imposition of term limits which led to Kibaki facing Uhuru instead of Moi in 2002. The NARC coalition from that 2002 election finally came completely apart over the executive power issue in the 2005 constitutional referendum on the “Wako Draft” in which the “no” campaign gave rise to the Orange Democratic Movement. “The next big thing” was another effort at constitutional change to disburse and devolve power after the 2007 fiasco at the ECK, where the tallies were changed to keep power with the incumbent president and the country erupted in what seemed to many to be a potential civil war before a deal supposed to deliver a “sharing” of executive power. After a reform constitution was finally passed in the 2010 referendum, the “reform agenda” emphasis has been, in theory, on “implementation”.
The new Media Bill not only repudiates basic constitutionally enshrined values of a free press, but the changes from first passage to final enactment shift power from Parliament to State House. This is only one of the most conspicuous of many areas where the Jubilee Government is moving to re-centralize power with the Executive. May the “Reform Agenda” rest in peace.
In the meantime, the latest Ipsos Synovate poll released this week finds absolute majorities of Kenyans nationwide and in each “province” but Central concluding that the country is moving “in the wrong direction” with a higher percentage of Kenyans trusting the media than any other institution.
“Indictee for President!” Michella Wrong writes in the New York Times Latitude blog on how “being prosecuted by the ICC helped Uhuru Kenyatta’s chances in the Kenyan election.” I would go a little further back and identify the ICC indictment as the impetus for Uhuru’s launching of his TNA party and his run for President in the first place, through his emergence as the dominant Kikuyu candidate. In other words, absent the ICC factor, I doubt Kenyatta would have run, or at least run seriously, and if he had, I doubt he would have gotten very far early on.
GWEN IFILL: After all the violence in 2007 and 2008 after the last presidential election, we were all bracing to see if the same thing would happen this time. And so far it has not. Why do you think that is?
JENDAYI FRAZER: Right.
Well, I think the Kenyans learned lessons from 2007. And the civil society very much was guarding their country and guarding against future violence.
They also had this election under entirely new institutions. There’s a brand-new constitution. There’s a de-evolution of power from the center, from the presidency, to governors of 47 counties. There’s county assemblies. And so I think the diffusion of power, the expectations about their new institutions and the lessons learned from 2007 account for the lack of violence this time.
Frazer is right in identifying why the situation in 2013 was different and “the same thing” that happened in 2007-08 was not going to happen this year. There is an irony, however, for her to invoke the work of Kenyan civil society, and the reforms of the new Constitution, in the context of her advocacy now in regard to this election when William Ruto was the leader of the “reds” who campaigned against the Constitution and Uhuru Kenyatta was seen as a “watermelon”, nominally “green” or pro-Constitution on the surface, but “red” in substance. The “Uhuruto” Jubillee Coalition took the position pre-election that it wished to restrict civil society if it took power.
Otherwise, there is much that is very telling in this solo interview about how the American media covers politics in the “developing world” and Africa in particular, and much that is telling about America’s official and unofficial interaction with foreign politicians and leaders.
It should be noted that for someone that served only a short time in the State Department, Frazier has positioned herself as a dominant figure in the Washington media in commenting on this election. A plausible reason for this relates to the fact that she has deeper roots in the Kenyan scene than her service as Ambassador to South Africa and then Assistant Secretary of State for African Affairs in the Bush Administration. These roots, however, are not discussed publicly in the context of her commentary on this Kenyan election. By reputation in Kenya, Frazer is identified widely but privately as a close family friend of the Kenyattas, Read the following exchange in this context:
GWEN IFILL: Uhuru Kenyatta, you have met him. You know something of him. What do we know about him, other than he’s the son of a very famous leader of the country, a very wealthy man and now is under this cloud?
JENDAYI FRAZER: Well, he’s also very much a person who respects the West. He was educated in the United States. He’s been pro-Western in his outlook.
He’s been the minister of finance before and the deputy prime minister. He’s always had strong relations with the United States. Now, the case against him is problematic. And as it was stated, it’s falling apart. The co-conspirators have all — that were charged with him are charged with attending a particular meeting at statehouse and in that meeting planning reprisals against the violence that was being meted out against the Kikuyus.
But the key eyewitness has now said that he lied and he’s been changing his testimony and has — and even said that he’s taken bribes. And so the case is falling apart.
There is much that is unsaid that may be of vital import. One question is simply whether Dr. Frazer, especially as a private citizen engaging with this is in a position to be objective about Kenyatta personally beyond describing the basic relationship to the U.S. Second, and relatedly, there is much more involved here than just the actual status of ICC prosecution’s case: there is also the bigger moral question of whether or not Kenyatta, and his running mate Ruto, are in fact innocent of being directly involved in deliberate killing of innocent Kenyans on the basis of their ethnicity for instrumental political reasons.
From a standpoint of pragmatic realpolitik, as well as for Western private and business interests, it might be convenient now for the ICC cases, especially the case against Kenyatta, to “go away” to protect the ability to do “business as usual”. Frazer is right that Kenyatta has had ties in the U.S.–he would have been a favorite of some others in the U.S. but for the post-election violence in 2008. But I do not believe that there are very many Kenyans at all–whether Kenyatta voters or not–who do believe that both Kenyatta and Ruto did not in fact do in essence, if not in exact detail that can be proven in court now, what they are accused of doing in terms of engaging in leadership of “militia” killings. Kenyatta’s appeal in fact relates to the notion that the use of the Mungiki to kill in the eastern Rift Valley was in some notion “defensive” of Kikuyu killed by members of other tribes in other places further west in the Rift Valley (what Ruto is accused of being involved in).
Part of what is happening here is that by attacking the shortcomings of the ICC and the Western media among others, some are seeking to relieve themselves of some of the moral tension associated with the haunting question of whether “peace” is being bought by the (possible) election of “killers”.
Aside from the fact that most Americans simply are generally unaware of the whole topic, more specifically I think we have a problem from being in a real degree of denial about the extent to which both Kenyatta and Moi were tribalist and corrupt, and advanced the systems of tribalism and corruption, while we supported them for other reasons. Certainly a big part of my education from living and working in Kenya was the opportunity to have private conversations with Kenyans who would tell me about how bad things had been under Moi. Especially noteworthy were these conversations with citizens from the Kalenjin groupings in the Rift Valley.
Before going to Kenya I got too much information of tertiary importance about the history of political parties without the driving background of tribalism and torture and aggregate economic statistics without the same background. Nor was I well informed about the determinative modes of operation of Kenyatta, Moi and then Kibaki as leaders.
It seems to me that you have to understand and account for these things to understand the relative importance of a new constitution to the Kenyan people, as well as to understand something meaningful about the 2007 presidential election and the misconduct of Kenyan authorities, and the multiple different types of violence in different places in the wake of the stolen election. Then you can read the Waki Commission report on the post-election violence and make sense of the ethnic “body count” and the fact that slightly more of those killed who were identified by ethnicity were Luo than any other “tribe”, followed closely by Kikuyu.
The new constitution has given a sense of empowerment and opportunity in Kenya–but we have seen the chimera of reform before after the 2002 election. The United States and others have given themselves a lot of credit for the February 28, 2008 post-election settlement, but the agreements reached have seen a mixed record of performance so far. While the Waki Commission did a great service, no Kenyan tribunals have been created to prosecute cases from post-election violence. The Kreigler Commission abdicated the duty to assess the presidential election, while finding that the overall system and the parliamentary results were deeply flawed. The Truth, Justice and Reconciliation Commission has been aborted–trying again will require a significant new effort and extended time, while the next election looms.
So yes, this is exactly the right time to fully examine our role in the referendum campaign leading to the new constitution and our role in the 2007 election leading to violence followed by a settlement that has led to that referendum and to some other reforms, while others remain in limbo. With a better understanding of these last two elections we can make honest and informed decisions in a democratic manner about what our role should be now and in 2012.
And by the way, I understand that you still can’t buy “It’s Our Turn to Eat” in a Kenyan bookstore.
The Obama administration has repeatedly come under fire from pro-life Rep. Chris Smith, a New Jersey Republican who leads the Congressional Pro-Life Caucus.
Smith has been concerned about a USAID report indicating the Obama administration spent $61.2 million related to the vote on the August vote on the new Kenya constitution. The report shows 12.6 million going to efforts to directly promote the pro-abortion constitution.
The constitution Kenyans adopted contained a clause making it so abortions would be legalized in any case in which medical professionals say it is somehow necessary for women.
As a result, the funding of groups promoting it appears to violate the Siljander Amendment — a federal law Congress approved decades ago that prevents the federal government from spending taxpayer funds promoting abortions in other nations.
Before the mid-term elections, Congressman Smith told LifeNews.com one of the consequences of Republicans taking over the House is the ability of pro-life advocates leading committees and subcommittees to the their powers to hold the Obama administration accountable on subject like this. He said the “investigatory and subpoena powers” the committees have would be useful in following up on the question of whether the Obama administration broke the law in funding the pro-constitution and pro-abortion groups.
Last week, he said the elections resulted in the victory of many new pro-life lawmakers who can support a potential investigation.
I have written previously that it is hard for me to see illegal lobbying for abortion in supporting the Kenyan constitution, but I have also noted that the Inspector General’s report indicates non-neutral spending to advocate for a “Yes” vote on the referendum. Aside from the disputed abortion language, this means that we did arguably interfere in the campaign and that we were, at best, less than straightforward about it. Congress should exercise its oversight authority to make sure that the American people do know what our government did in both the referendum campaign and in the 2007 presidential campaign.
Transparency is much needed in Kenya, and we need to teach by example rather than contradicting ourselves through our own practices.
Wednesday, the inspector general said the funds were channelled through USaid to eight organisations either based in Washington, Rome or Nairobi which in turn contracted 86 local groups involved in the ‘Yes’ campaign led by President Kibaki and Prime Minister Raila Odinga.
Responding to questions sent by the Nation, the USaid inspector general said: “We did find evidence that USaid specifically spent taxpayer funds to encourage a ‘Yes’ vote.”
The inspector general said Sh1.1 billion ($12.6 million) of the total amount was used to finance activities directly related to the referendum.
“USaid found no evidence that any of this money was spent specifically to lobby for or against abortion,” an agency official said in response to a list of questions.
The USaid’s review did not take a position on whether that law was violated. “We consider this to be an unresolved legal issue this office lacks the authority to decide,” it said.
Mr Smith dismissed the findings and said he has asked the Governmental Accountability Office, a watchdog agency, to investigate afresh.