13 March 2018

Kenya: After Kenya's Leaders Reconcile, a Tough Path Ahead

analysis

The meeting between President Uhuru Kenyatta and opposition leader Raila Odinga was an important step toward ending the protracted crisis over last year's disputed election. To build on the progress, consensus is required on concrete steps that can help safeguard against future polarisation and violence.

I. Overview

The meeting on 9 March 2018 between Kenya's President Uhuru Kenyatta and opposition leader Raila Odinga was as unanticipated as it is significant. In their joint statement issued after the talks, they promised to address the "deterioration of relationships between communities" and "aggressive antagonism and competition" that has blighted repeated electoral cycles in Kenya. This pledge is welcome: the warm words between the two men should help end the protracted crisis provoked by last year's disputed presidential election, while raising prospects for some form of national dialogue and reforms to avert a repeat. But now comes the hard part.

The two leaders, together with other politicians, business leaders, clerics and diplomats, must now ensure the next phase is a consensual, inclusive process yielding meaningful change. Priorities include an investigation into police killings and police reform; a reopening to civil society and the media; and political reforms that aim to reverse Kenya's winner-takes-all politics, perhaps including provisions that widen representation in the executive. While changes to rules are important, in themselves they will not temper the country's zero-sum ethnic politics without a broader shift in the behaviour of Kenyan leaders.

A. Historical Feud, Contested Polls

The presidential election, held on 8 August 2017, pitted the incumbent Kenyatta against veteran opposition leader Odinga. Both are scions of prominent political families - Kenyatta senior was the first president and the elder Odinga was vice president at independence. The pair fell out in the 1960s and the two families have dominated political competition for decades.

Ahead of the 2017 election, the younger Kenyatta and Odinga headed the tickets of alliances cobbled together largely along ethnic lines. The election commission pronounced Kenyatta the victor, but Odinga rejected the results. The Supreme Court annulled the vote on 1 September, finding widespread irregularities and illegalities in the tallying, tabulation and transmission of results, and ordered a fresh election. Odinga boycotted these polls, which were held on 26 October, citing insufficient reform of the electoral authorities. Kenyatta won with 98 per cent of the vote (although turnout in opposition areas was extremely low) and was declared president.

After that second election, Kenyatta and Odinga both took escalatory steps that deepened social divisions and triggered violence, leaving dozens dead, mainly at the hands of security forces. Odinga defied pressure from allies and foreign diplomats, and staged a mock inauguration on 30 January at which he was declared “people’s president”. This show not only compounded the political crisis but also sowed discord within Odinga’s own National Super Alliance. Kenyatta initially drew praise for pulling the security forces away from the venue of the Odinga ceremony to avoid a confrontation with opposition supporters. But he subsequently ordered several private TV stations off the air for days (and ignored a court order declaring this action illegal). He has led a crackdown on civil society and dismissed calls from the opposition, religious leaders and diplomats for a national dialogue.

Last week's talks between the two leaders were thus an important turnaround in a situation that appeared headed toward prolonged stalemate. It seems that back-channel contacts between aides culminated in the surprise one-on-one meeting in Nairobi.

The two leaders would both benefit from reconciliation. Kenyatta's second-term agenda - focused on growing the economy - would be imperilled if a significant proportion of the electorate continued to question his legitimacy. Reaching out to Odinga, who enjoys particularly strong support in western Kenya and along the coast, is one way to overcome those challenges.

Odinga, too, has much to gain. In recent weeks, key opposition allies seemed to be abandoning him, as they positioned themselves for the 2022 election. The latest move puts Odinga back at the centre of Kenyan politics. Aides say the veteran opposition leader, who has long championed reform and was a supporter of Kenya's progressive 2010 constitution, seeks to claim a place in history by pushing further change to the winner-takes-all political system.

B. Three Critical Steps

Kenyatta and Odinga have formed a committee of close aides to spearhead the campaign for national unity and propose possible constitutional amendments. To succeed, they need to ensure that any reforms are adopted only through an inclusive dialogue that consults as wide a cross section of the population as feasible. Important allies of both leaders appear to have been excluded from the talks and could seek to undermine reform efforts. Both Kenyatta and Odinga need to rally militant supporters behind the rapprochement to achieve wider buy-in for any prospective deal.

Moreover, a settlement negotiated exclusively by politicians would clearly contravene Article 118 of the Constitution (which demands public consultation before major decisions are made). The committee devising the reforms should host meetings with grassroots and other civil society organisations, as well as clerics and business leaders, to discuss any proposed changes.

Three areas will be vital in shaping reform if Kenya is to avoid further cycles of polarising and destabilising elections:

1. Lowering the stakes. In their joint statement, Kenyatta and Odinga conceded that polarisation and all-or-nothing contests for power have turned elections into "a threat to lives, our economy and our standing as a nation". Many politicians believe that the narrow structure of the executive, in particular, with only the posts of president and deputy president up for grabs, leaves little room for accommodation of a wider cross section of elites.

Some politicians suggest amending the constitution in favour of a Tanzania-style system to include a prime minister and possibly a deputy prime minister nominated by the parties that won the most parliamentary seats. Pursuant to this structure, both would govern under the supervision of a directly elected president. Such a move, proponents argue, would have several positive implications: broadening the executive, checking presidential power and, crucially, beginning to address the question of "exclusion and, ultimately, animosity" that Kenyatta and Odinga raised in their statement.

Finding ways to spread power around different positions and institutions, and to widen representation in the executive, could lower the high stakes of elections. But such an overhaul, particularly after the exhaustive constitutional reform undertaken less than a decade ago, should not be entered into lightly. It would require a process as consultative and inclusive as that which preceded the adoption of the 2010 constitution. Alternatively, a proposal from the leadership of Kenyatta's Jubilee Party, which commands a majority in parliament, to create a formal role for the leading opposition figure in presidential elections - with a special budget and specific mandate - might be less controversial and achieved through legislative rather than constitutional change.

Kenya's political elite and civil society ought to be cautious in assuming that rule changes alone will transform the culture of winner-takes-all ethnic politics and fierce electoral competition. The 2010 constitution in principle strengthened checks and balances and independent institutions, and thus should have achieved those objectives. That these reforms failed to avert last year's crisis is a testament to the manner in which Kenyan politicians contest power. Political culture - the behaviour of Kenyan leaders, particularly the distribution of resources along ethnic lines - needs to change as much as formal rules of the game.

2. Probe rights violations. Human rights groups found that the police were responsible for by far the largest number of deaths, including of several infants, during protests over the electoral crisis. A judicial commission of inquiry should investigate these killings. It should go beyond identifying culprits - who should face prosecution - and issue binding recommendations, potentially including retraining officers and a review of police codes.

The government also should reinvigorate efforts to reform the police and strengthen civilian oversight, including by empowering the Independent Policing Oversight Authority. Wider police reform, including through implementation of existing constitutional provisions that protect the security forces' leadership from interference by the executive, remains key to addressing Kenya's poor human rights record.

3. Civil liberties and media freedom. Kenya has a deserved reputation as one of the continent's more open societies. Its free-wheeling private media and debate of public issues on social media as well as its robust civil society help promote transparency and accountability. Those freedoms are in danger, both from an intensified government campaign against civil society and from government pressure on private media firms, including threats to selectively withdraw government advertising, a crucial source of revenue. Odinga should use his place at the table to persuade Kenyatta that the country would gain more by maintaining its culture of openness.

C. Conclusion

Kenyatta and Odinga deserve praise for their recent show of statesmanship in agreeing to hold talks to try and end the crisis and help unite the country. Together with civil society, religious groups, business leaders and the diplomatic community, they should now turn to the hard work of ensuring this chance for meaningful change is not wasted.

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