Executive summary and recommendations of a report by the ICG:
Kenya's elections this year should turn the page on the bloodshed of five years ago, but the risk of political violence is still unacceptably high.
A new constitution, fresh election commission and reformed judiciary should help. But the vote, now set for 4 March 2013, will still be a high-stakes competition for power, both nationally and in 47 new counties. Forthcoming trials before the International Criminal Court (ICC) of four Kenyans for their alleged role in the 2007-2008 post-election violence look set to shape the campaign.
The potential for local violence is especially high. Politicians must stop ignoring rules, exploiting grievances and stoking divisions through ethnic campaigning. The country's institutions face fierce pressure but must take bold action to curb them. Business and religious leaders and civil society should demand a free and fair vote. So too should regional and wider international partners, who must also make clear that those who jeopardise the stability of the country and region by using or inciting violence will be held to account.
Many reforms were initiated to address the flawed 2007 polls and subsequent violence. A new constitution, passed in a peaceful referendum in August 2010, aims to fortify democracy and temper zero-sum competition for the presidency by checking executive power. New voting rules require the president to win more than half the votes and enjoy wider geographic support. Power is being devolved to 47 counties, each of which will elect a governor, senator and local assembly. Despite recent mishaps, the new Independent Electoral and Boundaries Commission (IEBC) still enjoys public trust. Judicial reform, including the appointment of a respected new chief justice, also augurs well for a more robust response to electoral fraud and disputes.
The new institutions, however, have their work cut out. The ICC proceedings are influencing political alliances and the campaign. The four individuals facing trial deny the charges and maintain their innocence. While the cases aim to erode impunity long enjoyed by political elites and may deter bloodshed, they raise the stakes enormously. The two most powerful of the accused, Uhuru Kenyatta and William Ruto, look set to contest the elections on a single ticket (Kenyatta for president, Ruto for deputy president). Both have politicised the ICC cases, deepening ethnic polarisation, and have accused Prime Minister Raila Odinga, their strongest opponent, of conspiring with foreigners against them.
The Kenyatta-Ruto alliance would be a strong ticket. Aware that Kenyans want an end to impunity, both have pledged to comply with the ICC, even if they win. Yet, regardless of the outcome of their cases, a president facing lengthy trial before the ICC could potentially have extremely damaging implications for reform and foreign relations, which Kenyatta's backers should ponder carefully. For the moment, their eligibility to run for office remains in doubt; a case challenging their compliance with new constitutional requirements for public officials' integrity is with a high court and may find its way by appeal to the Supreme Court. Were the courts to find Kenyatta and Ruto ineligible after the closing date for submitting nomination papers on 30 January, their supporters would be unable to choose alternative candidates, which might lead to strong protests and even spark conflict. Dealing as it does with a highly charged political issue, whichever way it goes, the final decision is likely to be contentious. If possible, the date of any decision should be announced in advance so the security agencies and others can prepare accordingly.
Other signs are also troubling. Political parties and politicians flaunt new rules unchecked. The IEBC's bungled procurement of voter registration kits reduced the confidence it previously enjoyed and suggests it may struggle to resist enormous pressure as the vote approaches. The late start to registration has cut all fat from the electoral timeline, and any flaws will heighten tension. The IEBC must work transparently with parties and other stakeholders to clarify and regularly review the timeline, so as to avoid any further - and highly-charged - delays.
Voter education will be crucial. It is the first general election under the 2010 constitution, with new rules that are considerably more complex than previous polls (each voter will cast six ballots). Limiting confusion and misunderstandings could help reduce disputes and election-related conflict. It is also vital that the IEBC provide sufficient access and information to citizen observers and other civil society groups. They must be able to plan their deployment properly and enjoy full access to every part of the election process, especially the tallying of results. Such groups can also be useful allies in bolstering commissioners' ability to resist political interference.
Insecurity too poses a huge challenge. Despite the reforms, many structural conflict drivers - continuing reliance on ethnicity, competition for land and resources, resettlement of internally displaced people (IDPs), and poverty and youth unemployment - underlying the 2007-2008 violence remain unresolved and may be cynically used by politicians to whip up support. Many of those who fled the turmoil remain displaced. Land disputes feed local tension. Youth unemployment is still very high and, together with poverty and inequality, means a steady flow of recruits for criminal groups and militias that can be mobilised to intimidate opponents and their supporters or protest results, as they have in the past. Attacks blamed on the extremist Al-Shabaab movement and clashes over land can cloak political violence. Meanwhile, police reform has lagged and the security forces look ill-prepared to secure the polls. An experienced inspector general of police, David Kimaiyo, has been appointed, but the delay in his selection means little time remains for significant security reform. Multi-agency security planning, which has also lagged, must be completed and implemented.
Ethnic campaigning and horse-trading as alliances formed - by Kenyatta and Ruto but also other leading politicians - have deepened divides. How the supporters of either of the two main tickets, those of Deputy Prime Minister Kenyatta and former cabinet minister Ruto running and of Prime Minister Odinga and Vice President Kalonzo Musyoka respectively, would respond to losing a close vote it perceives as flawed, or even to early signs it is falling behind, is unclear. International partners, including regional neighbours whose economies rely on a peaceful transition, should monitor any signs of interference or violence and weigh in quickly to deter it. Devolution, for all its benefits, introduces new conflict dynamics, as competition between groups for power and resources controlled at county level becomes fiercer.
All these challenges are surmountable, especially given the remarkable determination of most to avoid a repeat of 2007-2008. But they require concerted action by Kenya's institutions and their allies, and - most important - clear signals to leaders who are seen to be prioritising the pursuit of power. The people deserve better. To put the horror of five years ago behind them, they deserve the chance to vote without fear and elect leaders committed to reform and ready to serve society as a whole rather than the narrow interests of its elites.
To President Kibaki and the government of Kenya:
1. Press all candidates to commit publicly to respect election rules, campaign peacefully and contest the results through legal, non-violent means.
2. Continue to urge the national and all provincial security committees to complete security planning, identify vulnerable counties and deploy accordingly.
3. Support the IEBC proposed Joint Risk Assessment and Response Centre for sharing information and coordinating operations among national and local security organisations and committees, as well as civil society groups.
To Kenya's political parties and coalitions:
4. Commit publicly, and together, to respect rules, campaign peacefully, avoid hate speech and divisive mobilisation and pursue any petitions or other election grievances only through legal channels.
5. Recruit party agents early and work with international partners to ensure they understand their role and follow the rules in the polling centres.
To Uhuru Kenyatta and William Ruto:
6. Provide the public with a clear, detailed account of how you would propose to govern while also conducting your defences before the ICC, taking into account the time required and the demands of appearing in person in court on a different continent.
To the Independent Electoral and Boundaries Commission (IEBC) and acting registrar of political parties:
7. Improve outreach and communication with stakeholders, including political parties, candidates, the media and, in particular, civil society, with which a strong alliance is especially important to resist political pressure; and provide citizen observer groups the information they need in a timely manner.
8. Press for all candidates at national and county level and political parties to adhere stringently to the Code of Conduct enacted as part of the 2011 Elections Act.
9. Keep tight focus on operational planning, especially on vote counting and tallying of results, including for the likely presidential run-off; and make results for both rounds publicly available and disaggregated by polling stream to allow for their verification by citizen observers and party agents.
10. Take action, in coordination with the National Cohesion and Integration Commission, against political parties and candidates that violate rules, campaign divisively or use hate speech.
To Kenya's business and religious leaders and other influential citizens, including the media:
11. Denounce publicly hate speech and ethnic chauvinism and use actively their resources for civic and voter education.
12. Consider carefully the implications for Kenya of a president facing trial before the ICC.
To Kenyan civil society groups:
13. Form ad hoc umbrella committees to capitalise on each organisation's expertise and avoid duplication, in order to find a collective voice and increase their influence; continue preparations to monitor the campaign and vote, use parallel vote tabulation responsibly and work with and support the IEBC if it is performing well.
To regional leaders, especially the governments of the East African Community:
14. Send unambiguous public and private messages against political interference with the elections and especially against the use of or incitement to violence.
15. Support the efforts of the joint East African Community election observation team, as well as of other observation missions.
To Kenya's other regional and wider international partners, especially the African Union, U.S., European Union and its member states, UN and International Financial Institutions:
16. Send unambiguous public and private messages that politicians must not meddle with the IEBC or the judiciary and that political violence will be sanctioned, including, if appropriate, by adopting travel bans or asset freezes.
17. Ensure all regional and wider international observation missions deploy early, to as many counties as possible, and cooperate to align their statements and avoid duplication.
Nairobi/Brussels, 17 January 2013