Institute for Security Studies (Tshwane/Pretoria)

Kenya: The Possibility of Peaceful and Free Elections

analysis

Photo: The Star
President Mwai Kibaki shakes hands with Premier Raila Odinga as the former UN Secretary General Kofi Anan looks on, on February 29, 2008.

As Kenya's 4 March 2013 general elections approach, many within and outside the country, continue to caution against the possible recurrence of violence. The difference between carnage and peaceful and free elections will be determined by the balance between the changes and continuities that characterise the Kenya of today as opposed to that of 2007-08.

Kenya has come a long way since the post-election crisis of 2007-08 in terms of putting in place much of the institutional and policy conditions necessary for holding peaceful and free elections. Many of these changes mark a substantial departure from the past and go a long way in militating against a repeat of the level and kind of violence witnessed in 2007-08.

Within the framework of the 2008 national accord and the recommendations of the Waki and the Kriegler commissions, established to investigate the 2007-08 electoral violence, a number of structural reforms were initiated. The most significant of them was the promulgation of a new Constitution in August 2010. As the High Court of Kenya held in its most recent case, '[t]he new Constitution ... aims at nurturing democracy and laying the foundation for free and fair elections'. The Constitution provides for a bi-cameral parliament consisting of the national assembly and the senate, which are empowered to exercise their powers independently of the executive and to check it. Significantly, a truly independent judiciary is emerging. The Constitution also provides for an elaborate and enforceable Bill of Rights. In addition to these, as the High Court noted, 'New institutions were created for the management of elections and resolution of election disputes, including the Registrar of Political Parties, the Independent Electoral and Boundaries Commission, the Political Parties Disputes Tribunal and the Ethics and Anti-Corruption Commission.'

Kenya now possesses most of the institutions required for the conduct of free and fair elections, although the complexity of this election, with voting at six different levels, may put the capacity of especially the Independent Electoral and Boundaries Commission to test. Generally, these institutions are now well organised and empowered to discharge their responsibilities satisfactorily. Significantly, they enjoy more political and public confidence than was the case in 2007.

Critically, the new Constitution reconfigures the organisation of political power in Kenya, which, as pointed out in the Waki Report, contributed to the 2007-08 violence. The excessive concentration of power in the presidency is now limited both in terms of scope and through a robust system of checks and balances. Similarly, in a departure from the highly centralised and unitary past, part of the power of the national government has devolved to the 47 counties.

There is also a fairly significant change in the political context of today. In the 2007 elections, the political climate in Kenya was highly polarised between two political groupings, namely the Orange Democratic Movement and Party of National Unity. Both groupings built their campaign on the fears and grievances of their respective support bases. The environment was charged with hate speeches and violence-inciting campaigning. The elections were reduced to zero sum politics in which the victory of one was seen as a total loss for the other.

Today, unlike 2007, the elections are not a simple contest pitting two completely opposed and polarised political groupings against each other. Although dominated by two coalitions, the Jubilee Alliance and the Coalition for Reforms and Democracy (CORD), the ethnic dynamics are more fluid and diverse. In the presidential election, there are eight candidates. Apart from dividing the electorate, this also decreases the scope for vote rigging, as the higher number of parties acts as a guarantor of the conduct of the electoral process. Additionally, two of the ethnic groups that fought in 2007-08 over perceived historical land injustices in Kenya's Rift Valley are now in one alliance, Jubilee.

As part of the effort to create a conducive environment, the presidential candidates have signed a code of conduct committing themselves to using established legal recourse for any disputes relating to the 4 March elections. There has been a great deal of public mobilisation by civil society organisations, newly established institutions (such as the National Cohesion and Integration Commission and the Media Council of Kenya) and the media to create public awareness of the need for elections to be conducted peacefully and responsibly.

Clearly, these are significant changes that militate against the repeat of the level and kind of violence witnessed in 2007-08. However, this does not suggest that there is no risk of violence. Most importantly, there is significant risk of localised violence. Much of this can be attributed to the continuities of the politics of the past. Changing the political culture has proven to be much more difficult than putting in place new institutional and policy frameworks.

Politicians are neither able nor willing to adapt to the new context and largely continue to deploy the techniques of the old politics - the politics of fear. These build on and exploit the sense of insecurity among various sections of the electorate and appeal to ethnic or tribal interests and affiliations. Parts of the country that witnessed conflicts over resources and other grievances during the course of the past year, such as Tana River Delta in the Coast Province and some counties in the Eastern and North Eastern provinces, as well as Rift Valley, are particularly vulnerable to the effects of these politics.

The ongoing criminal process at the International Criminal Court (ICC) against the leaders of one of the major coalitions, the Jubilee Alliance, further reinforces the resort to the techniques of the past. For Uhuru Kenyatta and his associate William Ruto, this election is not just about protecting the interests and privileges of their constituencies. It is also about providing them a shield against the ICC processes. On the flip side, the subjection of Kenya's political heavyweights to such criminal prosecution carries an important deterrence effect.

The persistence of the old politics is made particularly dangerous by the closeness of the race for the presidency. Three opinion polls released on 18 February predicted that the presidential election would be tightly contested, with a slight lead by Raila Odinga of CORD over Kenyatta of Jubilee Alliance. In the likely possibility of a run-off election, any irregularities may lead to violence. The active acquisition of weaponry by sections of society and the presence of politically aligned militia groups further escalate the risks of such violence.

The establishment of counties as new centres of power (without the proper mechanism for effecting power-sharing in multi-ethnic and highly contested counties) has also led to contestation between rival communities at the local level. This is particularly the case in areas with a history of communal rivalry, conflicts over resources and boundary disputes. These include, among others, parts of Rift Valley Province, Garissa in North Eastern Province and Tana River in the Coast.

However, despite the fact that the balance between changes and continuities is not strong enough to avoid all risk of violence, it is safe to conclude that the changes have created stronger possibilities for holding largely peaceful and free elections.

Solomon Ayele Dersso, Senior Researcher, Conflict Prevention and Risk Analysis Division, ISS Addis Ababa

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