27 February 2018

Kenya: A Divided Kenya Should Alarm Its Friends

Photo: Capital FM
Foreign Affairs Principal Secretary, Ambassador Macharia Kamau.
guest column

Washington, DC — Kenya is sliding towards political chaos and possible inter-communal violence - or towards an authoritarian crackdown that could cripple its young democracy. The urgent need to change this frightening trajectory is palpable in Kenya.

What is happening in Kenya also matters - or should matter - to the United States and the international community. Kenya is East Africa's most dynamic economy.

A country divided

President Uhuru Kenyatta with his Jubilee party, and opposition leader Raila Odinga with his National Super Alliance (NASA), are digging in on opposite sides of a widening partisan divide.Appeals for calm and respect for the rule of law by Kenya's western friends, including the United States, have had little effect thus far.

Kenyatta and Odinga each command roughly half the Kenyan electorate. Though most analysts, comparing pre-election polls with final results, conclude that Kenyatta and his vice presidential running mate, William Ruto, probably won the August 8, 2017 election, Kenya's Supreme Court ruled that serious electoral irregularities made it impossible to determine the actual winner and ordered a new ballot - a move celebrated across much of Africa as symbolic of judicial independence.

In the run-up to the second round on October 26, 2017, the Kenyatta government and its Jubilee supporters waged an onslaught against both the courts and the Independent Elections and Boundaries Commission (IEBC). Judges were threatened, with one surviving an assassination attempt. IEBC commissioners were menaced, or offered bribes. One commissioner fled Kenya after receiving death threats.

Kenya's Supreme Court decision last August ordering a new ballot was celebrated across Africa.

The example of Chris Msando - an IEBC official abducted, tortured and strangled days before the August 8 election - was not lost on anyone overseeing the second round of voting. Msando's murder was an eerie re-enactment of the abductions and grisly killings of prosecution witnesses in the International Criminal Court cases against Kenyatta and Ruto four years before.

Kenyatta won the re-run, and the Supreme Court promptly validated the result. But voter turnout was only 38%, partly because Odinga had withdrawn from the race. Convinced Odinga had been "rigged out" of the Presidency for the third time in a decade, NASA launched a campaign of national "resistance."

Government in control as protests persist

Disputing Kenyatta's legitimacy, NASA supporters called for new elections, organized mostly peaceful (but disruptive) protests and boycotts, and flirted with the idea of a creating a parallel governing authority. A theatrical swearing-in of Odinga as the "people's President" was held January 30. Some NASA militants called for secession.

Protests are continuing. Should they turn violent, they could quickly escalate into the kind of deadly, ethnic-based mayhem that convulsed Kenya after the 2007 elections. An even greater risk, however, is that harsh Kenyan government crackdowns on what is increasingly a forlorn campaign of civil disobedience and resistance could produce precisely the same result. Detaining Odinga, for example, would ignite passions that would be hard to control.

The fury with which Kenyatta has reacted to Odinga's challenge is difficult to fathom.

The harsh reality for NASA is that it has no legal basis and few realistic options for continuing to dispute Kenyatta's legitimacy. Kenyatta's firm control of the executive, his comfortable parliamentary majorities, his command of government resources at all levels, the loyalty of the security forces, and the broad international support he enjoys mean that the standoff with Odinga is a very unequal one. Given this imbalance, the fury with which the Kenyatta government has reacted to Odinga's challenge is difficult to fathom.

NASA officials have been harassed, threatened, detained, and deported. To block live broadcasts of Odinga's "swearing in", Nairobi's three main TV stations were taken off the air, and kept off the air for days afterwards in defiance of judicial orders. More ominously, the Kenyan government, including its Inspector General of Police, is routinely refusing to comply with court orders to release detainees, desist from illegal or unconstitutional acts, answer summonses and enforce judicial decisions.

In effect, Kenyatta and Ruto are hitting back hard not just at Odinga and his supporters. They are also challenging the rule of law in ways that push executive impunity to an extreme not seen since the dark days of one-man rule by former President Daniel Arap Moi. Kenya's new constitution, which voters ratified by a large margin in a 2010 referendum, is meant as a bulwark against such excesses.

How this affects U.S. interests

For decades the United States has exercised influence there. The American embassy in Nairobi and its aid programs in Kenya are among its largest in Africa. Military-to-military links are long-established and strong.

Polls consistently show Kenyans have a favorable view of America. Over the years, U.S. investments in political reform and improved democratic governance have been welcomed by most Kenyans as a positive contribution to their country.

Kenya's current political problems could undermine the country's economy, disrupting trade and frightening away much needed new investment and the thousands of tourists who visit its beaches and game parks every year. It could also seriously impact regional economic activities.

Kenya is East Africa's most important regional transportation hub, and its road, rail and air links provide an essential trade corridor for virtually every state in the area.

As was the case during the horrendous post-election violence of 2007, Kenya today needs outside assistance to help it alter course. Such help is unlikely to materialize unless the United States uses its unique relationship with Kenya to catalyze an international response.

A key objective is to prevent a descent into ethnic violence, but that is only half the job. The larger danger to Kenya now is the threat to the rule of law posed by an increasingly imperious executive apparently determined to remove legal and constitutional restraints on its exercise of power.

Are democracy and accountability still shared U.S. and Kenya values?

Publicly shaming the Kenyatta government or threatening sanctions is not the answer. But the American government must privately make clear to President Kenyatta and Vice President Ruto that there are limits to what the can be tolerated within the boundaries of a close bilateral relationship. By continuing to amass executive power unconstitutionally and flaunt the rule of law, the Kenyatta government is fast approaching those limits.

While it may be a valuable security partner, Kenya needs the relationship more than the United States. That partnership is not a 'get out of jail free' card for the Kenyatta government. Nor is it an excuse for Washington to overlook Nairobi's refusal to respect fundamental democratic norms.

Another message must also be delivered, both publicly and privately. The U.S. government will continue, as it has for the past 30 years, to provide completely transparent support to non-partisan Kenyan groups seeking to strengthen democracy, combat corruption, hold government accountable, protect human rights, and uphold the rule of law. Not too long ago, these were shared U.S. and Kenyan values. We need to hear now from Kenyatta and Ruto whether they still are.

Mark Bellamy, former U.S. Ambassador to Kenya, is senior advisor at the Center for Strategic and International Studies and Warburg Professor of International Affairs at Simmons College.Johnnie Carson, former U.S. Ambassador to Kenya and former U.S. Assistant Secretary of State for Africa, is senior advisor at the United States Institute of Peace.

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