Status of Reforms and Recounts in Kenya

We are now down to the last four days of debate in the Kenyan Parliament on a draft constitution.  The MPs appear fractured along the lines of competition for 2012 (party and factional splits) and on a regional/ethnic basis over issues of sub-national governance structures.  Changes to the current Committee of Experts draft require a 2/3 approval which appears to be a difficult hurdle.

If Parliament is unable to reach a broad consensus on changes, as appears likely, the referendum will go forward with the draft “as is”.  This will mean that there will be a lot of groups and interests that are not really happy with it, including some who have pledged or threatened opposition.  This will call everyone’s bluff at some level.

My guess would be that the current draft would be perceived by the voting public as enough of an improvement–and symbolically important enough in the post-2007 environment–that it will have broad support.  At the end of the day, I suspect it would be mostly people currently sitting in government in some form who would prefer the status quo.  It may well be that we will have behind the scenes efforts toward defeating the referendum from some politicians that offer a lukewarm endorsement in public.  Regardless, I suspect Kenyan voters will have a heightened resistance to being manipulated.

On other issues, Capital FM reports that a group of religious leader presented a memorandum to Kofi Annan during his present visit to Nairobi that seems to summarize well:

“We are concerned that political leaders, on whose shoulders the burden of implementing the reform agenda was placed, have shifted their focus to the 2012 general election,” the statement read.

They continued to say: “The situation is made complex by the fact that one principal is retiring while the other is firmly in the 2012 presidential race. This has made synergy remote since succession politics rather than national wellbeing is the overriding consideration in their minds.”

The leaders also told Mr Annan that very little effort had been made to address underlying issues classified as the root causes of the 2007/2008 post election violence.

They rated the government’s effort almost at zero in dealing with poverty, unemployment and regional inequalities which are some of the challenges that were identified as primary causes of the violence.

According to the leaders, the government was also not doing enough to realise land reforms despite the Cabinet passing a new land policy, “This is quite sad considering that land ownership and use was one of the causes of the post election violence.”

But they appreciated that a lot had been achieved in constitutional reforms though they expressed worries that political, ethnic and religious interests had almost overshadowed the national concerns.

They also called for consensus to ensure that the draft enjoys majority support when it will be subjected to a referendum.

On the issue of prosecutions from the post-election violence, the Justice Minister says the ICC is acting too slowly (like Kenyan courts) to approve Ocampo’s request to authorize a formal investigation. He says that a new effort to pass a “local tribunal” is first up following the consideration of the constitution. (Of course, the lack of finality/clarity about the potential for local prosecutions may be a primary issue restraining the ICC.)

Voter registration is underway. There are complaints about the slowness of issuance of national ID cards to potential new voters in some areas, but overall no surprising controversies that I am aware of yet.

Judicially supervised recounts continue in parliamentary challenges from the 2007 election. They are recounting the yellow ballots for parliamentary candidates. Hmm. Seems like it would be interesting to count the pink ballots for president, too. This is what the EU called for when the election results were disputed–but was dismissed as not possible by the US through Ambassador Ranneberger. Would have also been interesting for the Kreigler Commission to have done some sample recounts also. I’ll develop this further in subsequent posts . . . .

Visiting US Diplomat speaks on corruption, prosecution of post-election violence

The Standard covers Deputy Assistant Secretary of State Karl Wykoff:

The US continued to pile pressure on the Coalition Government for urgency in the implementation of key reforms and decisive action against corruption.
. . . .
Speaking just a day after the second anniversary of the signing of the National Accord, Mr Wyckoff said: “It is important to note that some significant progress has been made-particularly with respect to the constitutional review process and the interim electoral commission, but much more must be done to implement reforms with a much greater sense of urgency.”
. . . .
Wyckoff also reminded Kenya that suspects of post-election violence must be held accountable if Kenya is to avert future occurrence of skirmishes.

“The culture of impunity is critical…. it is critical that perpetrators of the violence be brought to justice,” said Wyckoff.

He further called on the Government to be proactive in protection of witnesses of post-election chaos.
. . . .
Wyckoff, who has been in the region for two weeks conducting extensive consultations in Nairobi and Addis Ababa, Ethiopia, on a wide range of issues, called on the coalition partners to hold a referendum that would not disintegrate the people.

“We urge the coalition leaders to work together to support a new draft constitution and to work towards the holding of a timely referendum, which will help unite the country,” he said.

Preparing for 2012–I. The Constitution and the Presidency (the first installment in an occasional series)

We approach the halfway mark in the second Kibaki administration and watch as Kenyan politicians grapple with how to position themselves most advantageously for the next election, and as Kenyan wananchi hope for any opening toward the restoration of the sense of hope and empowerment experienced in the 2002 election. Much of the focus right now is on the process by which the members of the political elite mediate among themselves what to offer to the public for vote in a referendum on a new constitution.

Obviously this is a high stakes endeavor involving a degree of risk that Kenyan politicians do not normally indulge–which is why Kenyans continue to have a constitution that no one admits to liking and everyone promises to change when they are running for office. The first Kibaki administration lost its moment of public goodwill over the failure to accept reforms limiting presidential power. This created an opening for a new opposition center of gravity with the “Orange Democratic Movement” and ended the opportunity for Kibaki to win a majority in seeking re-election in 2007. With the old constitution, however, Kibaki did not need a majority to keep power.

To my way of thinking, it may be a distraction to focus too much right now on most of the intricate issues of law presented in the Committee of Experts draft constitution, in that the reality is that Kenya is simply not at a point where the law as written is such an important determinate of the rules of everyday life either for citizens or leaders. To me, the big picture issues of how Kenya will be governed in the future, if a new constitution is approved, are (1) how the president is chosen and (2) devolution versus centralization.

Presidential Elections to Date and the Current Pursuit of 2012

The political class seems to have abandoned the idea of having a Prime Minister which has been seen as a central point of contention in the past. To me this reflects the final denouement of the notion of the second Kibaki administration as being a “coalition government” involving “power sharing” between a Kibaki-led PNU establishment and an Odinga-led opposition.

In a nutshell, Kibaki in seeking a second term lost around 20-points off his 2002 majority, but the ECK which he appointed declared him to have won a plurality and to have met the thresholds of 25% in each of five provinces. Almost all outside observers have concluded that the election was stolen and surveys indicated that 75% of Kenyans believed so as well. Kibaki won a majority in the 2002 campaign and lost it in his performance in office, but retained power.

Since Moi conceded to allow formal “multi-partyism” in the wake of the end of the Cold War Kenya has had four elections. In three, an incumbent president sought re-election, failed to get a majority of the vote, but was declared the winner with a plurality, followed by significant violence. This was the pattern of 1992, 1997 and 2007. In 2002 there was no incumbent due to a constitutional reform imposing a two-term limit–a “macro level” legal reform that was ultimately respected. In this unique situation, the two leading candidates to succeed the president were both key members of the elite political establishment, and simultaneously key members of the Kikuyu tribal and business elite. Under the circumstances, the obvious landslide winner was the candidate positioned as “the opposition” while also being, in fact, part of the core elite.

How much alike were the candidates in 2002? Let’s look at some reportage from today’s Sunday Nation:

Mr Kibaki’s apparent endorsement of Mr Kenyatta’s manoeuvres in PNU is hardly surprising.

Mr Kenyatta and Mr Kibaki share long-standing family ties. It is said that it was Mr Kibaki who suggested to Kenya’s first president, Jomo Kenyatta, that he should name his son Uhuru (freedom) to mark the attainment of independence in 1963.

The two families, whose private residences are barely 500 metres apart in the upmarket Muthaiga residential area in Nairobi, also share deep political connections.

George Muhoho, an uncle of the younger Kenyatta, was one of the founders of President Kibaki’s Democratic Party of Kenya.

While Mr Kenyatta has unquestionably taken up the role of the main man within PNU . . .

While 2002 might have seemed at first to be a breakthrough election representing a fundamental step up to a higher level of democratic development–rather than something of a bait-and-switch–by 2007 we were back to a situation where an incumbent who could not command a majority was seeking re-election.

Given the History, Why Not Create a Strong Prime Minister?

I think it would make sense for Kenyans to chose a presidential rather than parliamentary system, because a parliamentary system is based on functioning political parties. Having a “prime minister” without a party or parties in government and a party or parties in opposition in the parliament doesn’t make sense to me. Kibaki effectively gutted the nascent existing political parties as president by being elected to parliament and as president as the leader of the Democratic Party, but not using DP as a tool of governance nor leaving it, and disdaining to chose or form another party to run for re-election. Ultimately “PNU” was slapped together a the last minute, neither quite a party, nor quite a coalition–and was little more or less than the Kibaki re-election apparatus at the time.

Because Kibaki did not lead an organized party, after the election the claims on his loyalty were personal and tribal–he was not going to negotiate anything to do with the presidency–that was off the table–but spoils could be shared as he deemed necessary. Thus ultimately, he was able to cut a deal with Odinga without having to answer to a party. The settlement was against the wishes of many of his key partisans, including at least some of the PNU-side negotiators in the Kofi Annan-led talks which had in fact collapsed before the last-minute deal between “the principals”. After all, he was giving away jobs and titles that his second tier supporters wanted, rather than what he needed for himself.

ODM is likewise unlikely to survive the run-up to the next election. ODM had a certain level of potential as a party. It was strengthened as a party, I would argue, when Kibaki’s claim on Uhuru led Uhuru to pull KANU out of the opposition coalition. Uhuru couldn’t buck Kibaki and keep his seat in parliament and being leader of KANU was not enough for him without the seat. The clarity of the formal split with KANU left ODM in a position to develop as a party rather than a coalition. It survived the disruption of Kalonzo’s departure. It had a national leader in Odinga who even in the questionable ECK results won the vote in the entirety of the country other than Central Province by 1.5 million votes. Post-election however, its leader Odinga has no real power as Prime Minister to impose party discipline and Kenneth Marende whom ODM elected as Speaker its in greatest feat as a party holds an office that is treated in the strange current system as nonpartisan.

The Remaining Reform is the Requirement that the President Obtain a National Majority

Given the impracticality of expecting more from parliament or a prime minister without a level of development of political parties that simply has not transpired in these initial years of Kenya’s political opening, the reform that matters in my opinion, is to require that a presidential candidate obtain a national absolute majority. This would be a real change in and of itself, and could be one of those fundamental basics like the two-term limit that are actually honored and matter over time.

Morning Update–Constitutional Review

The 30 day period for public comment on the proposed new constitution has now run.  Here are some quotes from yesterday’s editorial in Nairobi’s Business Daily Africa entitled “Save the Review”:

“When the Constitution writing project began in the early 1990s the majority of Kenyans were agreed that power needed to be dispersed and checked by the various arms of government.

But going by the polarisation that has emerged as the deadline for submission by the public of views on the draft closed on Wednesday, this point appears to be escaping the memory of many.

Once again, the process appears to be headed for a stalemate thanks to the short-term interests of the main actors on the political arena.

Yet the jostling for power aside, it must be said that the constitution making project has merely become captive to a lack of leadership.”

It’s pretty basic that the constitutional process has to be about the country not the current crop of individual politicians, but it doesn’t seem there is not much of a source of strong leadership from outside politics and no willingness to lead on this basis from among the politicians.  It would seem that a lot of the burden will rest on civil society if the process is going to lead to a significantly improved new constitution soon.

Kenyan Constitutional Reform and Michel Martin interview with Johnnie Carson

NPR’s Michel Martin interviewed Obama’s Asst. Secretary of State for Africa last week on “Tell Me More”–transcript is up on NPR.org.

Interesting that Martin starts with Kenya and the second anniversary of the election violence.  Carson is very specific that Kenya needs a new constitution and that it needs to include “a sharing of power” between “the” president and “the” prime minister, devolution of power to the provinces, and “a land reform bill”.  This raises the question of what the US role might be in moving the constitutional negotiation in that direction–and why.

Also significant is that Carson specifies the new constitution in the context of increased “goodwill and cooperation” among the current Kenyan political players.  Nothing said about impunity, the ICC, justice, corruption, et al.

Personally, I am more interested in “power sharing” between branches of government than in having a shared executive role, which in my view doesn’t do much for accountability.  I’m old enough to remember (from junior high school days) the brief flirtation with the idea of a Ford and Reagan “co-presidency” at the Republican Party convention.  Seems like everyone ended up agreeing it just wasn’t workable here.  It’s hard to make this succeed as a compromise deal negotiated between two individuals; not sure it isn’t harder to come up with a way to structure it systemically as a permanent choice in the constitution.

Land reform is crucial, of course, and the problem gets worse and worse as the population grows at a 2.7% clip–but the present Kenyan instutitions and the present crop of political leaders are, to my way of thinking, “no how, no way” ready, willing or able to tackle this until other reforms are effectuated.  Start by admitting that the problems are, in fact, unfixable and have no good solutions.  There is a price to be paid for all those years of corruption, venality and tribalism.  I wonder what the United States and other Western countries were doing about this back when the Kenyan population was 20 million instead of 40 million and the options were better? 

Regardless of any of the policy preferences of any of us in the US, however, I do completely agree that Kenyans need the opportunity to have the constitutional reform process move forward at pace, and go to vote in a referendum on the final product.  It seems to me that Kenyans are pretty well aware at this point that, in general, the political leadership does not have their best interests all that much in mind–giving the public the opportunity to have a direct say, for the first time since December 27, 2007 is crucial to restoring functional democracy.