Kenya's Biggest Electoral Problem? Not Solving Electoral Problems.

Britain’s Queen Elizabeth famously declared 1992 an “annus horribilis”, one which, she said, she wouldn’t look back with undiluted pleasure. For many around the world, 2016 has similarly turned out to be a horrible year. From the deaths of several pop culture icons; to the millions forced to flee senseless killing and destruction in the middle east; to the political earthquakes that were the Brexit vote in the UK and the election of Donald Trump in the UK, 2016 has been one for the books.

For Kenyans, the year is ending largely as it begun: in uncertainty, fear and with a sense of foreboding.

We were barely through the second week of January when reports begun filtering through of an attack on Kenyan forces serving in an obscure centre somewhere in south western Somalia. El Adde would soon become one of the most familiar Somali place names in the country as the true scale of the tragedy unfolded, despite the government’s best efforts to hide it. With between 140 and 200 Kenyan soldiers slaughtered by the Al Shabaab terror group and another dozen taken prisoner, it was Kenya’s largest military defeat and made a mockery of the claim to being one of the continent’s most effective armies. Following the incompetence and malfeasance on show during the Westgate Mall attack in 2013 and in Mpeketoni and Garissa University thereafter, El Adde was the final nail in the coffin of the Kenya Defence Forces vaunted reputation.

In the final weeks of the year, the air has been thick with more fears, this time of a distinctly homegrown variety. The long-simmering dispute between ruling party politicians and their counterparts in the opposition coalition over the ground rules for next year’s general election has once again burst out into the open. The ugly scenes and reports of fisticuffs in the National Assembly that accompanied the passage of the amendments to the Elections Act as well as the opposition threat to renew their campaign of street protest have raised temperatures and the potential for politically-instigated violence across the country in 2017.

On the face of it, these two situations couldn’t be more different. However, a deeper examination reveals that they spring from the same root: namely the Kenyan penchant for ignoring and postponing problems rather than confronting and resolving them.

At least since Westgate, it had been clear that there was something seriously wrong with how the Kenya Defence Forces conducted operations. And every year since has brought more cause for concern. Yet, whether it is accusations of being engaged in the smuggling sugar into Kenya and charcoal out of Somalia or allegations of indiscriminate shelling of civilian villages both inside and outside Kenya, or of bungled responses to terror attacks, the response has been either denial or a deafening silence. There have been no attempts to hold the military top brass to account for the many failures or, at least publicly, to understand and eliminate the reasons for them. What a senior police officer told the Nation is probably true of the military: “The police service has basically learnt nothing from Westgate, Garissa, Mpeketoni and others.”

Similarly, it has been clear, since the 2013 general election, that there were many serious flaws in the country’s electoral system. From the fact that the Independent Electoral and Boundaries Commission did not know how many voters it had registered, to the preponderance of voter registers, the frozen screens at national tallying centres and the admission by one Justice that the Supreme Court might have ruled differently given more time, the signs of systemic failure were clear.

Yet for nearly three years there were no demands for a comprehensive and independent audit of the system to identify and fix the problems. Instead, as the current furore over the electoral law demonstrates, we have allowed the politicians to hijack the discourse of reform, just as they did in 1997. That, unfortunately, did not turn out well a decade later.

The amendments to the Elections Act passed earlier this year following the street demonstrations initiated by the opposition, mandated that the elections be run on an integrated electronic system, defined as "including “biometric voter registration, biometric voter identification and electronic result transmission system”, which the IEBC was meant to have put in place by December. That has not happened. And so even the current standoff over whether there should be a back up to the electronic system is somewhat moot as there is nothing to back up. 

Yet all parties keep declaring their commitment and fidelity to the electronic system. Even the Jubilee cohorts pushing for a manual back up, keep saying that it would only be needed in case the (non-existent) electronic system breaks down. The truth is, it is all theatre. It is all for show. Instead of dealing with the real issues, the furore is about obscuring them. It is about keeping us focused on the problems of our politicians, not our own.

Nine years ago, Kenya was nearly dissolved in an orgy of killing and destruction that followed a bungled election. The stage for that catastrophe was set a decade earlier when we allowed the push for comprehensive electoral reform to be hijacked by the political class under the banner of the Inter Parties Parliamentary Group. In the end, the IPPG only put a band aid on our gaping electoral wound which was callously ripped off by Mwai Kibaki when he tore up its “gentleman’s agreement” in 2007.

Not fixing our problems is what has landed us in the trouble we are currently in. And if we hope to ensure 2017 is more annus mirabilis than annus horribilis, then that is a habit we must break.

No More Partying At State House

Earlier this week, President Uhuru Kenyatta summoned the press corps to State House to relay a message to the nation. However, he was addressing Kenyans, not in his capacity as the country’s CEO, but as a leader of one of 14 political parties affiliated with the Jubilee coalition.  The big news was, of course, that the parties had agreed to merge.

The choice of State House, the seat of the Presidency, as venue for what is plainly a partisan event was alarming. The constitution describes the President as “a symbol of national unity” but Kenyatta appears to be stretching the limits of this beyond what is acceptable. Party unity, even within the governing coalition, is clearly not national unity.

On the contrary, what the event highlighted is the creeping capture of the state by the party and the blurring of the lines between the two. And this is just the latest episode. The frequent and unseemly exchanges between the opposition Coalition for Reform and Democracy on the one hand and the Presidential Strategic Communications Unit on the other are legendary. They aptly demonstrate the latter's propensity to see themselves as more than just as civil servants working within the Presidency, but also as partisan agents of the Jubilee coalition.

One could also point to the curious case of Interior Secretary, Gen (RT) Joseph Nkaissery. I8 months ago, he was an opposition MP, having been elected on an Orange Democratic Movement ticket in 2013. Yet following his appointment to the Cabinet, he has been traipsing around his former constituency, pretending to be a member of the Jubilee coalition. So far, it seems, no one has asked whether he resigned his membership of ODM. It is almost taken for granted that going into cabinet automatically translates into joining Jubilee.

But why should this be of concern? Some on social media have suggested that the raging questions over the use of state assets were little more than just a storm in a teacup, a petty fuss over the use of microphones and presidential daises.  However, such thinking is dangerously ignorant of the lessons of Kenyan history. One of the reasons why the State House event left a bad taste in the mouth is the memory of the consequences of the fusion of the party and the state during the KANU era. That merger, which begun in the 60s under Uhuru Kenyatta's father and was completed under his successor, Daniel Arap Moi, was the foundation for a half century of abuses. As loyalties within government were steered away from serving the people and towards the party and its leadership, the state itself and the goods it held in trust for the people of Kenya were transformed into the personal property of the President.

In a very real sense, the cult of personality and the concentration of power in the person of the President that was engendered by Jomo Kenyatta, Moi and to a lesser extent, Mwai Kibaki, was essentially built on this fusion of party and state. Its legacy lives in the present day, when even nominally independent officials are loathe to go against the governing party line. The clearly partisan behavior of the police is a good example.

Further, as they say, the fish rots from the head. Other public officials will take their cue from the President. During the Al Shabaab attack on Garissa University, in which 148 people were killed, the elite GSU Recce Company was delayed in Nairobi as the police plane had apparently gone to Mombasa to fetch relatives of the Airwing commandant.

Separating the President’s personal and party affairs from that of the people is therefore no fickle matter. When asked about the appropriateness of hosting partisan political functions at State House, the President’s men are wont to point at US President Barack Obama's similar use of the White House. But while true, they neglect to mention that his party actually pays the US Treasury for the privilege, just as Obama pays for the daily meals, groceries and toiletries that he and his family get and use at the White House. Further, federal law prohibits federal employees and even elected representatives, admittedly excluding the President and Vice President, from conducting partisan business such as making fundraising phone calls, inside government buildings.

The Americans are certainly clear about the privileges their potentates are entitled to and go to great lengths to ensure public resources are not expended on party business. It is time we in Kenya followed suit.

Kenya's Politics Of Crises and Forgetting

Earlier this week, on the eve of Madaraka Day, history paid Kenya another visit. Online photos of CORD principals, Raila Odinga and Moses Wetangula in a jovial meeting with President Uhuru Kenyatta and his Deputy, William Ruto, at State House, Nairobi caused a bit of a stir. But it shouldn’t have. As I explained last week, we have been here before.

Political crises have been a near-constant feature of Kenya’s post-colonial history, and especially since the agitation for electoral and constitutional reform began in the 1980s. Politicians have perfected the art of taking the country to the brink of the abyss of violence and anarchy and pulling back at the last minute.  It is a callous calculation, where violence and death are used as negotiating tools. If, as Carl von Clausewitz asserted, “war is the continuation of politics by other means” in Kenya, crises and bloodshed signal not a breakdown of the political process, but how it is inaugurated.

The script is always the same: Opposition demands talks on reform or a redress of grievance. The government refuses. Demagogues on both sides polarize public opinion, mostly along ethnic lines. With few options, the opposition appeals to the street to force the government to give in. The street demonstrations are met with police violence and after enough Kenyans have bled and died, the government gives in and agrees to talks.

This is politics reduced to a staring contest, where the goal is not to avoid crises but to ignite them. It is a politics that is managed via crisis, in which Kenyan citizens are not the end, but as the means of contestation. It is a politics obsessed with the problems and welfare of politicians, not so much those of the people who are reduced to pawns in a game of elites.

There is no true animosity between the main protagonists, despite the hateful rhetoric employed to galvanize their supporters. In the end, the politicians remain friends and business colleagues and country club mates. The politics they have created and perfected eschews permanence and commitment, whether to principles, policies, friends or enemies. The only defining characteristic is ambition.

Of necessity, in rejecting permanence, it also rejects history. Who, after all, wants to be reminded of their hypocrisies? Or that their current BFF was the declared mortal enemy of all Kenyans in the last election cycle? In kowtowing to the politicians, Kenyan media also reflects much of this aversion to history and context. Political events and crises thus seem to spring out of nowhere, without history or context, and just as quickly disappear into nothingness without actual resolution once the politicians have gotten together to rearrange their seats at the table.

This is what is happening with the current dispute over the fate of the IEBC commissioners. Despite the fiasco witnessed in the 2013 election, there has been little discussion about it in the last three years. Neither the opposition nor the government have shown much interest in addressing the failures witnessed during the election or the problems highlighted by the subsequent petitions filed against the 2013 results, especially the petitions against the Presidential poll. Now, with just over a year to the election, precipitating a crisis appears the only means our politicians can imagine to address the issue.

Historical amnesia is apparent in the way they have proposed to drive the talks forward. Apparently, a deal has been reached in which each side will nominate five people to a 10-member committee, composed solely of Parliamentarians, to conduct the talks. This would be little more than a resurrection of the 1997 Inter Parties Parliamentary Group process which, as I discussed last week, then President Daniel Arap Moi used to blunt the push for reform by excluding all other interested players, especially those from civil society.

So today, as the country breathes a sigh of relief, the politicians have put yet another one over us. Once again they have successfully gotten us to bleed over their problems and ignore our own. No wonder they seemed so giddy at their State House get-together.

Why This Is Not An IPPG Moment

Kenya today finds itself in the throes of a crisis. In the run up to next year’s scheduled general election, weekly opposition protests and the subsequent brutal crackdown, have deeply polarized the country and left at least three people dead and many others, including police officers, wounded. Though now suspended, a threat to restart the demonstrations if dialogue doesn’t happen still hangs in the air. But beyond the rhetoric, the teargas and the scenes of bloody confrontation, this is above all a crisis of memory and imagination.

We have been here before.  Almost every election in the multiparty era has been preceded by protests and demands for reform. The contestation has mainly been about two questions: the rules governing elections; and who sets and administers them. The latter question is the immediate spark for the current weekly demonstrations with demands for the reconstitution of the Independent Electoral and Boundaries Commission. However, in the background, and sadly barely mentioned, lurks the even more critical issue of wider reforms to the electoral system.

Nearly two decades ago, as the country prepared for another election, near identical scenes of protest over the composition of the then Electoral Commission of Kenya elicited a vicious response from the Nyayo government led to the deaths of 13 protesters on Saba Saba day in 1997 and the formation of the Inter Parties Parliamentary Group which negotiated a raft of reforms. These allowed the country to proceed to the polls later that year.

In our collective memory, the IPPG process was as a seminal moment during which the autocratic President Daniel Arap Moi was forced to accede to the people’s demand for change. George Kegoro, in March described it as “an elite platform that Kenyan political actors and civil society crafted in 1997 to save the country from the disaster that might have resulted from a threatened opposition boycott of the General Election of that year”. 

There are many parallels with today’s impasse including the threat by the opposition Coalition for Reforms and Democracy to boycott the 2017 elections if the IEBC is not replaced. Given that, many are citing the IPPG as a model for resolution. “It is time for another IPPG-like moment in Kenya,” as Mr Kegoro presciently wrote. The insistence by the governing Jubilee coalition and its supporters that Parliament is the appropriate forum for resolving the dispute can also be seen in this light.

However, this telling ignores a few inconvenient facts of history. The IPPG was not crafted by the opposition ad civil society to save Kenya. On the contrary, it was, as Rok Ajulu described in the New England Journal of Public Policy, “a KANU platform … designed to blunt the impact of the reform agenda of the opposition and its allies in the National Convention Executive Council [the civil society coalition that had spearheaded demands for change].” The NCEC correctly saw the IPPG as a tool “to cool the fire raised by the … the demands of the country for electoral reform, and in the process to legitimise the Moi re-election machine," and opposed it.

While the IPPG achieved some reforms, including allowing the opposition a role in appointing ECK commissioners, it was ultimately betrayed and many of the negotiated reforms were not enacted into law following the early dissolution of Parliament. Moi’s successor as President, Mwai Kibaki, would a decade later rubbish the very agreement he had had a hand in negotiating as a non-binding “gentleman’s agreement” and ignore it when appointing ECK commissioners, fatally undermining the ECK’s credibility and setting the country on the path to the 2008 post-election crisis.

Many of the arguments we hear from government types today in favour of a Parliamentary process are a rehash of Moi’s justification for using Parliament, the “legitimate representative of the people” as a means to exclude the citizenry. They highlight the question at the heart of the push for constitutional transformation which, despite the 2010 constitution, we have failed to resolve: Is reform to be a people-driven or state-driven process?

 This is evident in the continuing delegitimization of the street as a proper avenue for political participation and the idea that state institutions are the only acceptable forums for political negotiations. We see it when Boniface Mwangi’s peaceful demonstrations are violently dispersed and hear it when the government attempts to arrogate to itself the power to determine where and when protests can happen.

It is this collective failure to imagine alternative spaces where national questions can be debated and resolved by inclusive collections of wananchi, and not just by politicians or public officials, that is at the root of many of the state’s current legitimacy problems. Sadly, our political processes continue to be more concerned with solving the problems of politicians rather than those of the people.

Going forward, we must insist that any talks on fixing the electoral system not be sequestered in Parliament or participation limited to politicians. This is Kenya’s problem, not Raila Odinga’s or Uhuru Kenyatta’s. We must demand an inclusive national dialogue involving a wide array of stakeholders, including organized civil society and academics. These groups were major drivers for the 1997 “No Reforms, No Election” movement that was locked out of Moi’s IPPG talks. It is time they helped us finish what they started.

Of Police Brutality And Imperfect Victims

It was, by any measure, a vicious assault. At least 15 people were hospitalized following Monday’s attack on protestors and bystanders by police during demonstrations meant to press for the ouster of the Independent Elections and Boundaries Commission officials. The scenes beamed around the world of citizens being chased down, clobbered and left to lick their wounds in the street, were a throwback to an era many had assumed was behind us.

Public attention has focused on the particularly brutal beating meted out to Boniface Manono and the image of his crumpled form lying on its side, his body in the street, his head resting on the kerb and menaced by a police officer’s raised boot, has become iconic.

Mr Manono is far from an ideal victim. His story about how he supposedly stumbled on the protest doesn’t appear to gel with the pictures being flashed around social media. What appears to be a stone in his back pocket as he endures police kicks and clubs hints at a more complicated picture than those who would wish to paint a vista of clearly defined villains and victims might wish.

But it is precisely because he is not perfect that we need to pay attention. This is not to endorse any violent or illegal behavior on his part, but to assert a simple truth: the law protects everyone or it protects no one.

In his famous play, A man For All Seasons, Robert Bolt penned a dialogue between a dialogue between Sir Thomas More and his daughter's suitor, William Roper in which the former argues for giving the Devil the benefit of law. “What would you do? Cut a great road through the law to get after the Devil?” he asks the young Roper. “I'd cut down every law in England to do that!” comes the reply. “And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat?” counters Moore. “Yes, I'd give the Devil benefit of law, for my own safety's sake.”

It is for our own safety’s sake that it should not matter whether or not Mr Manono was an innocent bystander or a violent criminal. The idea that the actions of the policemen assaulting him would be any more acceptable if he were a thug should be an anathema to all. For if we allow the police to ignore the law, to cut it down to get after the Devil, we will one day wake up to find that they are ignoring all manner of law in places we had little imagined. After all, the laws we have put in place exist as much to protect us from criminals as from abuse by public officials and officers of the terrible power we bestow upon them.

Similarly, online contestations over whether Mr Manono is a fake stand-in for the supposedly deceased real victim of the battering miss the point, as do the official protestations that he did not die. While the fate of the victim is undoubtedly important, it has no bearing on the legality of the police action and does not render the assault any less atrocious. And the despicable politicizing of the incident threatens to introduce a new and dangerous standard for public assessment of police conduct: did the victim die?

All this distracts from the real issue we should be coming to grips with which is the failure of security sector reforms undertaken thus far to transform the National Police Service from what the 2009 Report of the National Task Force On Police Reforms, better known as the Ransley Report, described as “a punitive citizen containment squad” into a modern institution that lives up to the motto of “Utumishi Kwa Wote”.

Reforms undertaken to date have largely been cosmetic, and haven’t addressed the culture of impunity and cruelty bred by over a century of being the enforcers of a corrupt and thieving political elite. In these circumstances, providing the police with better equipment, as the government has done, just makes them more effective oppressors of the very people they are meant to serve. 

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