The 55-year Fight For Kenya

Two elections in two months has not settled Kenya’s political crisis. But the impasse is not really about who will sit in State House. It’s a deeper question: it’s about who owns Kenya – its citizens or a historically entrenched political elite.

President, Uhuru Kenyatta, won the second edition easily after his main opponent, Raila Odinga, withdrew from the race citing the inability of the Independent Electoral and Boundaries Commission to carry out a credible poll. In fact, the reason the election was being done afresh was that the Supreme Court had annulled the August 8 version, accusing the IEBC of acting as if the Elections Act and the Constitution did not exist. His refusal to participate in last Thursday’s contest has now precipitated a deep political crisis.

Some have proposed that it is nothing more than a dispute between two of Kenya’s famously gluttonous and power-hungry politicians, each accusing the other of trying to get power through fraudulent means. Others blame the ethnicization of Kenya’s politics and the deep tribal faults within Kenyan society. Still others maintain that the country’s winner-take-all political system, which does not allow those rejected by voters a cushy and safe landing. In all this, the fate of individual politicians and of the country’s constitution takes on huge importance.

And yet all these diagnoses fail to identify the central conflict that lies at the heart of and connects all these issues – and that is the struggle to bend the country’s colonial and extractive state to the whims of a new and progressive constitution.

It is a war that has been silently waged for at least 55 years. In the run up to Independence in 1963, the two main African parties, the Kenya African National Union (KANU) and the Kenya African Democratic Union (KADU) premiered the main themes and power conflicts that were to dominate Kenya’s attempts to deal with the colonial state. According to the late Prof Hastings Okoth-Ogendo, KANU, the more popular of the two, prioritized the transfer of power over reform of the state, while KADU, which had already lost an election to its rival, was more focused in the limitation of that power in the interests of ethnic minorities.

In 1962, at the second Lancaster House constitutional conference, KADU insisted on a constitution that was broadly similar to the one the country was to adopt 48 years later. It established a Bill of Rights, created regional assemblies and government in an effort to devolve power from the center. KANU, on the other hand, reluctantly acquiesced, reasoning that when the party inevitably won power through the ballot box, it would be free to change the constitution.

And that’s what indeed happened. In less than a decade after independence, the constitution would be so mangled through amendments that in 1969, it was officially recognized as a different constitution.

Writing in 1992, current Attorney General, Prof Githu Muigai, explains:

“The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimization. When the Independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded.”

In short, under KANU, the colonial state and its logic of extraction of resources from the many to enrich the few -initially British colonials, but now a similarly tiny African political elite -prevailed and undid the constitution. What followed was an “eating” binge as politicians and senior officials and their families and friends grabbed whatever they could lay their hands on.

By the late 1980s, the looting and oppression had sparked a reaction from citizen groups, media and churchmen which featured a persistent push for a new constitution, even in the face of violent government crackdowns as well as state-led attempts to co-opt and hollow out their demands. The popular agitation came to fruition in August 2010 when the current constitution was promulgated which essentially was a reset to 1962.

Yet the colonial state did not just fade away. It had to contend with this new challenge and, at least initially, the political elite was happy to pretend to play along for as long as their position at the top was not seriously challenged. The more egregious aspects of the state that the constitution now abolished, were simply renamed and allowed to hide in plain sight: the hated provincial administration rather than being abolished, simply changed titles but was retained intact; the police, though nominally declared to be operationally independent, never actually behaved like they were -they still remained “a citizen containment squad” as the Ransley report had described them.

Though cloaking itself in the cloth of the constitution, the state refused to reform. Under Uhuru Kenyatta, it retained its authoritarian character but with a fresh, likable face. But all through, its violence was never far below the surface as was witnessed in the aftermath of its bungled responses to terrorist attacks such as the on the Westgate Mall in Nairobi in September 2013, when the government scapegoated entire communities to cover up its failures. and, more recently, in the brutal crackdown on people protesting the two elections in which nearly 70 people have died.

On August 8, the elite embarked on what they assumed would be another coronation of their chosen one. Everything was in place, including 180,000 policemen to take care of troublemakers in opposition strongholds as well as a carefully constructed plot and narrative. It wasn’t the first time they were doing this. As Stanley Macharia, proprietor of the largest broadcast media network in the region, told the Kenyan Senate last year, in all five elections held since the return of multiparty competition, in only one -in 2002- had the presidency gone to the person with the most votes.

The Supreme Court annulment of the August election, therefore, came as a real shock to the elite and was the first real attempt to use the 2010 constitution to challenge the power and status of the elite as the ultimate owners of the state. The response was quick and effective: legislative changes to virtually make it impossible for the Court to nullify another election, threats to the judges, and a sham election to sanitize what the Supreme Court had impugned. Soon Uhuru Kenyatta’s supporters were extolling the benefits of a “benevolent dictator”.

It is within the context of this historically frustrated effort to bring the colonial state to heel that we must locate the current political impasse. It must not be made out to be about the Luo vs the Kikuyu (although there is an aspect of that) or Kenyatta vs Raila (although that matters too) or election winners vs election losers (a much less convincing argument).

The real question is whether the wenyenchi (the owners of the nations) will give up their control of the state to the wananchi (the people of the nation); whether they will allow the constitution to dismantle and remake the colonial state into one that works for all Kenyans.

History does not offer much encouragement. However, as the low turnout (even the highest estimates come in at under 40%) for the repeat election suggested, there is broad agreement across the country on the need for elections to adhere to constitutional standards of being free, fair, simple, verifiable, transparent and credible. One poll showed that even in Kenyatta’s heartland, more than half of the people were happy with the Supreme Court’s decision to annul the poll.

The politicians are out of touch with the people. Their brinksmanship demonstrates that they are yet to learn the lessons of the 60s and that they cannot be trusted not to repeat the same mistakes their fathers’ made.

Which leads us to the question of what should happen now. There is undoubtedly a need to resolve the immediate political crisis and generate consensus on how to address the longer term issues. Talks, as have been proposed, between Kenyatta and Odinga would be critical to this but, as noted above, cannot be left solely to them. the involvement of other sectors of society such as civil society, the media and the religious establishment both as mediators and participants in their own right would help lay a framework that is not solely dictated by the interests of the two main protagonists.

The goal should be to establish a roadmap to a resolution of the crisis including an agreed forum for a comprehensive national dialogue which would address not just the immediate manifestations of the crisis but, more importantly, deal with the unfinished business of reforming the colonial state and addressing its legacy of abuse, marginalisation and impoverishment.

Kenya faces much more than an electoral crisis. For over half a century, the contestation over who controls the state has been allowed to take precedence over the need to reform that state so it works for not just a few, but for all its citizens. That must now change.