Kenya’s Next Test: Democracy, Elections and the Rule of Law

Published on 17th October 2017

When I last spoke at Chatham House in July last year (2016), I expressed pride that from the pessimism of the past when Africa was seen simply as a basket case ruined by conceited and ruthless dictators, the Continent had become a puzzling case of rapid economic growth in the midst of promising political changes. But I also warned that this “new dawn” may easily be jeopardized by the reluctance to embrace far-reaching democratization at the political level and progressive reforms at the economic level. I stated that both far reaching democratization and progressive economic reforms require committed political leaders with long term visions that were typical of Africa’s founding fathers.

I indicated that despite years of progress, democracy is in jeopardy in Africa largely because many pro-democracy activists are no longer sure they have the support of the West. Many are not clear if it is still the policy of the West to stand only with regimes that promote open, free and fair elections, transparency in management of public affairs, good governance and human rights.

Further, I expressed the fear that we are entering an era of anything goes with regard to democratization with the West being seen to be turning its back on democracy by cutting funding, endorsing regimes with dubious records and abandoning democracy activists and civil society all in the name of stability, war on terror and business.

I am honoured to continue this conversation against the backdrop of an annulled Presidential election in Kenya and the Opposition withdrawal from the new elections scheduled for October 26. The electoral crisis in Kenya has been dragging on for months now. It has caused serious economic dislocation and financial suffering. And with each passing day, it is also deepening divisions, polarization and radicalization across the country. At the moment, there is particularly intense interest in why I decided to withdraw from the upcoming 26th October election, which I am not certain will be held. In fact, it should not be held.

Our courageous Supreme Court annulled the August election because the Electoral Commission had “failed, neglected or refused” to conduct it according to the law and it was riven with too many “irregularities and illegalities.” No doubt, worried that the next election might be conducted equally corruptly, the Court took the remarkable step of explicitly stating in its judgment that it would not hesitate to annul the next election as well if it was not conducted under the laws and safeguards of the Constitution.

But the Electoral Commission has not focused on the essential reforms to the electoral processes; instead focusing on inconsequential measures, contending that there was insufficient time to do anything significant. The new election, therefore, is going to be as corruptly conducted as the one last month and its outcome would in no way represent the will of the people.

We must ask: Is an election held to fulfill some legal requirement, regardless of whether it will be demonstrably free and fair? Elections lie at the heart of democracy. There is no greater symbol, nor more potent expression, of a people’s will and determination to decide the kind of country they want and to choose leaders who are committed to taking them there. But now, after three rigged elections in a row, it is not elections, but democracy itself that is gravely threatened, along with the rule of law that protects it.

We in NASA have insisted that the fresh election be held to the standard ordered by the Supreme Court, that is, in strict conformity with the Constitution and written law. We have provided a checklist of what we deem to be the “irreducible minimum” changes required to ensure compliance.

The validity of the checklist of the requirements for free and fair elections proposed by NASA has not been disputed by anyone, not by the IEBC, not by Jubilee or other actors and observers. The EU Observer Mission has made recommendations in conformity with our ‘irreducible minimum.” Jubilee and the other proponents of an election without reforms are saying “any election will do. But we in NASA are calling for a credible election.

In a constitutional democracy, we should not be debating about a free and fair election, or compliance with court orders, or accountability for breach of public trust. Instead the IEBC has stonewalled meaningful deliberations on the necessary reforms to ensure that the elections of 26th October are free and fair.

We therefore came to the conclusion that there is no intention on the part of the IEBC to undertake any changes to ensure that the “illegalities and irregularities” do not happen again. All indications are that the election scheduled for 26 October will be worse than the previous one.

My participation in it, therefore, would only legitimize a corrupt exercise. It would also implicitly signal something much more ominous: my acceptance of the current drive by the Jubilee Government to dismantle fundamental democratic rights that Kenyans have struggled and sacrificed for over decades.

It is vital for Kenya’s friends and economic partners to realize that the crisis in Kenya is not only about who was or will be the next lawfully elected President of our great nation. The real crisis is that those in power have abundantly shown — before, during and after this utterly failed election — their determination to hold on to power by any and all means.

For example, the effort to subvert the election went beyond rigging to include the torture and murder a week before the election of Chris Msando, the Electoral Commission Chief of Technology responsible for the security and integrity of the entire voting system. Because of his renowned integrity, he had received many death threats and had sought police protection in vain, the Electoral Commission’s chairman announced after his death, adding that he was tortured in order to obtain the passwords that protected the tallying and transmission system.

After the August election, and even before the new one, they are moving to dismantle the entire edifice of the rule of law enshrined in Kenya’s Constitution to consolidate their long-term power. For example, after the Supreme Court annulled the election, President Kenyatta, having first said he accepted the decision, quickly changed tack and threatened to “fix” the Chief Justice and Associates. He accused them of having carried out a “coup” against him, and ridiculed them by asking how only four people could overturn the votes of the eight million people he claims voted for him.

The ruling Jubilee Party has subsequently passed new legislation that will gut many current electoral safeguards and also severely limit the powers of the Supreme Court to annul an election outcome. It will also diminish the authority the Chairman of the Electoral Commission currently has, by making it possible for any member of the Commission to announce the result of a Presidential election. President Kenyatta is expected to sign that legislation into law any moment now.

These laws are being changed in the middle of an election cycle! It is like changing the rules of a soccer match at halftime in order to help the home team win!

Despite great international interest in the current situation, not many are aware that the crisis in Kenya goes much deeper and unless addressed will soon shred our society’s security and stability and potentially exposing us to the spectre of the terror always lurking around the corner.

Kenya needs its international partners, who have been stalwart friends in the past, to support Kenyans in this struggle to protect and defend its democratic institutions and processes. Our partners enjoy enormous respect for the role they played in helping us overcome the decades-long yoke of one party rule in the 1990s. And in 2007, after the rigged election led to the worst violence independent Kenya had ever seen, it was our partners, in a robust and unprecedently speedy intervention who pulled us back from the brink. Such was the interest in preserving Kenyan peace that highest-level international leaders traveled to Kenya in search of a durable solution.

They included the great Kenya friend and then British Cabinet Minister Lord Mark Malloch Brown. Then US Secretary of State Condoleezza Rice also travelled to Nairobi to push for needed compromises. That historic intervention, spearheaded by the former United Nations Secretary General Kofi Annan, did not merely address the 2007 electoral crisis, but the deep-rooted causes of the violence that successive governments refused to address. It was that well thought-through and caring approach that led to the consolidation of the rights in a new Constitution that engendered a period of vibrant civil society engagement and enhanced national harmony.

Like then, we cannot tackle the current challenge alone. I am aware that the new world that we now live in is less compassionate than what prevailed just a decade ago. But at the same time, there are hugely pragmatic reasons to help preserve the democracy that has given Kenya the stability to become the linchpin for peace and prosperity in our vast and strategic region.

By  Rt. Hon Raila Odinga, EGH,

Coalition Leader, NASA; Party Leader, ODM; Prime Minister of the Republic of Kenya (2008-13)

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