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LEARNING FROM THE PAST: How to shore up the legitimacy of the 2017 Election

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Learning from the past
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Elections are supposed to flip power relations. During an electoral process, a country’s political elites remember their fundamental jobs and are – more than ever – the servants of the people. While campaigns are ongoing, the elites need voters’ support, their attention…and most importantly, their votes. During this time, it is voters who can sit back and evaluate their leaders, deciding whether or not their actions are deserving of another term in office. Over the years and around the world, however, this power structure has often been reversed. In the quest to win and/or retain power, political elites have managed to shape the electoral process to their advantage, creating loopholes and amending laws that dilute public power.

PUBLIC CONFIDENCE IN THE KENYAN ELECTORAL PROCESS

Kenya is no exception to this rule, and voters have taken note. Over the past fifteen years, the Kenyan public’s confidence in elections has dropped precipitously. In fact, between 2005 and 2015, the proportion of Kenyans who strongly agreed that elections were the best way to choose leaders decreased by more than ten percentage points. Unsurprisingly, faith in the credibility of elections has also suffered. In fact, there has never been a time over the last three election cycles (including the current one) when a majority of Kenyans has felt that the last election was completely free and fair.

With the next general election in Kenya scheduled to take place in less than three months, it is critical to think about how to urgently address this marked dearth in voter confidence. An important first step is the assessment of potential vulnerabilities. Reflection about what went wrong last time and what is at risk of going wrong again is useful, not only for policymakers but also for voters, who can and should take time to critically assess whether or not their electoral processes prioritize their roles and voices.

There are, of course, many issues to consider. These include poorly enforced electoral laws, delayed timelines, the lack of intra-party democracy, incidents of pre-election violence, and shrinking space for vigorous public debate on the most contentious and timely election-related issues. At this stage in the electoral cycle, however, it is most urgent to focus attention on the factors that most significantly impacted the credibility of the last election and which continue to haunt this election cycle. Together, unresolved questions regarding leadership and integrity, the Independent Electoral and Boundaries Commission (IEBC), voter registration and the process of counting and tallying threaten the credibility of the upcoming elections.

LEADERSHIP AND INTEGRITY

To begin, the 2013 election was the first to take place under the guiding principles of the country’s new, internationally lauded constitution, itself the result of a decades-long struggle. The constitution included many new provisions that would have a bearing on elections, but one of the most fundamental, overarching issues concerned the qualifications for and conduct expected of state officers. Indeed, Chapter Six of the constitution, devoted to leadership and integrity, is groundbreaking in the context of Kenyan political history, confronting, as it does, some of the most longstanding and deeply embedded obstacles to good governance.

Over the past fifteen years, the Kenyan public’s confidence in elections has dropped precipitously. In fact, between 2005 and 2015, the proportion of Kenyans who strongly agreed that elections were the best way to choose leaders decreased by more than ten percentage points.

Chapter Six fundamentally shifted the relationship between state officers and the people, requiring the former to selflessly serve the latter. Despite the dramatic weakness of the Leadership and Integrity Act that was passed to operationalize Chapter Six provisions, the lead-up to election day in 2013 did include bold efforts to test the letter and spirit of the law. The most notable of these was a lawsuit filed by the International Center for Policy and Conflict and five others, which asked a deeply controversial question: were Uhuru Kenyatta and William Ruto in violation of Chapter Six standards, and therefore ineligible to run for office, based on the International Criminal Court’s indictments against them for their alleged commission of crimes against humanity in the aftermath of the 2007 election?

The High Court’s judgment was disappointing, leaving the public doubting that state institutions were in fact committed to the standards of the constitution. Although the Court claimed that it lacked jurisdiction on matters related to the presidential election, its judgment did define the standard of integrity required by a person seeking public office. According to the Court, such an office-seeker should be beyond reproach and should not have unresolved questions about his/her character and commitment to the national values in the constitution. On the other hand, however, it also ruled that there is a distinction between appointive and elective positions. For the latter, the Court was of the opinion that it is up to the voters to decide who to choose, based on candidates’ “honesty, rectitude, uprightness and scrupulousness.” After the judgment was handed down, a lawyer for the petitioners remarked, “Today marks the official death of one of the chapters in the constitution. That is Chapter Six.”

Uhuru and Ruto were thus free to run for office, and Kenyans were told that questions about their character related to the indictments against them were “a personal issue.”

More importantly, since the substantive issues of the case were never appealed to the Supreme Court, Kenyans were left with an electoral context that was marked by the severe limitations of the candidate pool. After all, the Court had not considered that by attempting to leave it up to voters to decide how strictly candidates should be judged with regard to factors of integrity, it could well be that voters ended up with little substantive choice. With no enforcement of Chapter Six provisions for elective office-seekers, voters could well be faced with a slate of candidates, all of whose characters were tainted by integrity-related problems. The ruling also made it clear that there was little political will to apply the leadership and integrity laws across the board, thus cementing the status quo of elite impunity.

Unsurprisingly, unresolved leadership and integrity issues continue to plague this electoral cycle. In 2016, PricewaterhouseCoopers conducted a survey on the prevalence of economic crimes in the world and found that Kenya topped the list of 78 countries in the study. A shocking one percent of the country’s national budget had been properly accounted for in the previous year. Theft and misappropriation was the most common type of crime. As of 2016, there were 17 MPs who had been charged in court for committing serious criminal offenses, including fraud, forgery, hate speech, rape, corruption and incitement to violence. At least 90 others were under suspicion for graft.

The public has noticed. When asked how much they trusted the ruling party, the opposition and MPs, Kenyans reported significantly low levels of confidence. 

Table 1: Trust in Parliament, the Ruling Party and Opposition Parties

Not at All Just a Little Somewhat A Lot Don’t Know
Parliament 14.7% 28.5% 36.4% 17.1% 3.2%
Ruling Party 16.3% 21.0% 31.1% 29.9% 1.6%
Opposition 21.8% 28.7% 31.1% 15.2% 3.1%

Source: Afrobarometer R6 2014/2015

 

Such findings are telling, and they are especially relevant in the context of upcoming elections. Given the lack of political will to seriously implement and enforce constitutional standards of integrity, the public has little reason to put its trust in the state, or in the electoral process. Without proper enforcement of Chapter Six provisions, voters’ choices are always restricted. Over time, such an environment can lead to increasingly low levels of public confidence. In the long run, this endangers democratic resilience.

In an attempt to address the gaps in Chapter Six enforcement, the IEBC recently convened what is known as the Chapter Six Working Group on Election Preparedness. The group, which includes several state institutions, plans to vet parties’ lists of nominated candidates to ensure that they adhere to the Attorney General’s recently published guidelines. It is unclear, however, what authority this group has to carry out its stated purpose, especially given that the Court’s ruling in the case against Uhuru and Ruto made it clear that the presumption of innocence holds until cases are concluded.

THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION

Closely linked to public confidence in elected leaders is trust in the body charged with administering elections, the Independent Electoral and Boundaries Commission (IEBC). In fact, one study found that public confidence in a country’s electoral management body (EMB) is tied to public faith in the credibility of the election. Specifically, in a paper on Nigerian elections, Nicholas Kerr found,

The strongest correlate of citizen’s perceptions of election quality is the performance of [Nigeria’s Independent National Electoral Commission (INEC)]…when citizens are highly satisfied with the performance of INEC, they are thirty-eight percent more likely to consider the 2007 elections free and fair… But even more importantly, it highlights that ordinary Nigerians associate their evaluations of EMB performance more with their assessments of election quality, despite how strong their partisan attachments may be.

In Kenya, public confidence in the IEBC has fluctuated dramatically over the last five years. At the end of 2012, surveys showed that 70 percent of Kenyans had faith that the IEBC was carrying out its work impartially and 72 percent believed in the Commission’s independence. One month before election day in 2013, 91 percent of respondents said that they had faith in the IEBC’s competence to manage the election and 89 percent believed in the Commission’s impartiality. 91 percent of respondents also said they believed the IEBC was independent enough to conduct the election in a free and fair manner.

These pre-2013 election levels of confidence were a high point for the Commission, which suffered from plummeting levels of public faith after the 2013 election. The drop in confidence was due to a combination of factors, the most notable of which included procurement delays and irregularities in the lead-up to election day, problems with technology during voter registration and on election day, the failure of the electronic results verification system and the subsequent delay in announcing the result. The Supreme Court case challenging the integrity of the entire process, filed by the Africa Centre for Open Governance (AfriCOG) and the Kenyan Asian Forum, also publicly highlighted the multiple technical and administrative problems throughout the process. Indeed, post-election polls revealed a precipitous drop in public confidence in the Commission. In the immediate aftermath of the election, 44 percent of Kenyans reported that they were confident in the IEBC. In Nyanza, only 8 percent of respondents felt this way. By 2015, the figures had not changed dramatically, with 43 percent of Kenyans reporting confidence in the IEBC. Among opposition supporters, 71 percent reported that they did not have confidence in the Commission.

After the judgment was handed down, a lawyer for the petitioners remarked, “Today marks the official death of one of the chapters in the constitution. That is Chapter Six.”

The IEBC has experienced significant changes since the 2013 election. Senior members of the Commission were implicated in a corruption scandal, and a series of opposition protests against the IEBC eventually resulted in the dismissal of all the commissioners. New commissioners assumed office in late December 2016.

The changes seem to have made some difference. A recent poll shows that 72 percent of respondents feel that the IEBC is prepared to conduct a free and fair election. On the other hand, Kenyans are also extremely cautious in their outlooks. In fact, in four of Kenya’s former provinces, more than 20 percent of the population is not sure that the Commission will be able to administer a credible election.

While the high level of public confidence is encouraging, the new IEBC stands at an important crossroads. In order to maintain public faith, the Commission will have to work to show Kenyans that it is serious about avoiding the mistakes that marred the last process and that it is willing to fight to maintain its independence. The signs so far are mixed. The Commission’s decision to cancel the tender process for election technology and engage in a direct award of the contract to the same firm that was partially responsible for the previous set of botched technology raises questions about how well the IEBC has learned from past mistakes. This is compounded by a more recent announcement that the IEBC may proceed with a direct award to a ballot-printing firm. Moreover, recent analysis of the last mass voter registration exercise has revealed serious administrative and technical irregularities. On the other hand, the Commission’s stated commitment to enforcing gender parity in party lists and to enforcing leadership and integrity standards in the vetting of candidates is admirable.

The IEBC is making certain attempts to keep the public updated. It does hold press conferences, and it regularly updates its website with relevant press releases. This information is useful, but the Commission must go further with regard to transparency if it wishes to maintain public confidence. There are several outstanding questions at this stage of the electoral process, the most urgent of which are related to procurement, voter registration, the ongoing audit of the voters’ register, the use of technology, and counting of results. If the IEBC begins to address some of these concerns, it could go a long way in preserving public faith, especially as it is likely that problems will continue to arise as election day gets closer. No election is perfect, but the IEBC’s honest evaluations of its strengths and weaknesses related to current concerns are critical.

VOTER REGISTRATION

In 2013, much of the public’s dissatisfaction with the IEBC was rooted in problems with the voters’ register. The register was shrouded in a certain amount of mystery, with the total number of registered voters in Kenya shifting throughout the electoral cycle. The first sign of the problems to come appeared in February 2013, when it became clear that the final, gazetted register differed significantly from the provisional register released in December 2012. Overall, the register had grown by 12,500 voters.

Without proper enforcement of Chapter Six provisions, voters’ choices are always restricted. Over time, such an environment can lead to increasingly low levels of public confidence. In the long run, this endangers democratic resilience.

While a decrease in the number of registered voters was expected (because the verification and cleaning process would expunge dead voters, multiple registrations, etc), it was unclear how the register grew in size between December 2012 and February 2013. Moreover, there were significant regional changes in the numbers between December and February. These are detailed in the table below.

Table 2: Internal Changes to the Register of Voters

Region Changes between December 2012 and February 2013
Coast +901
Nyanza -15,026
Central +1,848
Rift Valley +67,000
North Eastern +6,604
Western +2,938
Eastern +4,222
Nairobi -50,102

Source: AfriCOG/KPTJ. 2013. “Voter Registration for the 2013 General Elections in Kenya.”

 

These changes became more worrying when the IEBC could not commit to one total number of registered voters. In fact, there were at least six different totals announced during various parts of the electoral cycle.

Table 3: Shifting Totals of Registered Voters in Kenya

Provisional Register (December 2012) 14,340,036
Principle Register (February 2013) 14,352,545
Special Register (March 2, 2013) 36,236
Election Results Total (March 9, 2013) 14,352,533
Green Book Total 14,388,793
Post-Election Register (July 2013) 14,388,781

Source: AfriCOG/KPTJ. 2013. “Voter Registration for the 2013 General Elections in Kenya.”

 

This shifting total, in addition to the IEBC’s assertion that what was known as the “green book” (A green book is an unregulated, manually-recorded list of registered voters. It had been severely criticized by experts.) was being used for purposes of registration, severely compromised public confidence in the integrity of the register. Indeed, the lack of a single, verifiable register breeds suspicion about political influence at worst and basic incompetence of the electoral management body at best.

Doubts around the register have not faded. In fact, the IEBC’s two mass voter registration exercises in the current cycle were rife with problems. These included widespread problems obtaining IDs, problems with dysfunctional and nonfunctional biometric voter registration (BVR) kits, unexplained use of the green book, disorganized registration centres and poorly trained IEBC staff, registration bribery, coercive registration practices and massive amounts of transfers. At the end of these processes, the IEBC announced that the total number of registered voters had grown to 19,749,310, representing a 37 percent increase since 2013.

In the immediate aftermath of the election, 44 percent of Kenyans reported that they were confident in the IEBC. In Nyanza, only 8 percent of respondents felt this way. By 2015, the figures had not changed dramatically, with 43 percent of Kenyans reporting confidence in the IEBC. Among opposition supporters, 71 percent reported that they did not have confidence in the Commission.

The elections law also allows the IEBC to engage a professional firm to conduct an audit of the voters’ register. The stated purposes of such an audit are to verify the accuracy of the register, recommend mechanisms to enhance its accuracy and to update it. While an audit may go a long way in promoting public confidence in the register, the process has thus far been controversial. In addition to allegations that there were irregularities related to the decision to hire KPMG, there is mistrust because of the firm’s lack of expertise in conducting such audits. Indeed, KPMG’s proposed methodology does not reflect internationally accepted best practice for the audits of voters’ registers, and there has thus far been a lack of transparency with regard to KPMG’s progress and therefore its eventual findings.

In addition to these technical problems with registration, the legitimacy of the entire process was cast in doubt when it emerged that the IEBC had cancelled a public tender process for the acquisition of an integrated elections management system in order to give a direct award to a company known as Morpho, the same company that provided the problematic BVR kits in 2013.

The doubts that have arisen as a result of the above issues have been compounded by the IEBC’s refusal to make the register publicly accessible. In fact, the IEBC did not even provide the updated register to political parties during their primaries. The lack of the register made it impossible for parties to confirm that voters were in fact registered, and this contributed to the chaos that characterized the primary processes. The IEBC has also refused to give the data to civil society on the grounds that it cannot release it until after the audit is complete. Without access to the pre- and post-audit data, however, it is impossible for the public to conduct its own analyses and understand the changes.

A related issue is that of the integrated election management system (IEMS) itself. According to the IEBC, the system is meant to be wholly integrated, such that voter registration, voter identification and results transmission are linked. Since the IEMS technology did not arrive until well after the conclusion of registration, however, it is unclear how all the components will be linked, if at all.

ELECTION DAY, COUNTING AND TALLYING

Confidence is also, of course, based on the credibility of results announcements. In 2013, the IEBC used an electronic results transmission system, which was designed to allow polling station officers to transmit results to regional tallying centres and to IEBC headquarters in Nairobi via a secure, digital connection. This system was meant to protect the credibility of the count and prevent the kind of manipulation that had been seen in past elections, which often occurred during the time when tally sheets were being physically transported from polling stations around the country to Nairobi. Unfortunately, however, the system was a spectacular failure. Midway through the counting process, Kenyans watched the stream of live results freeze on television screens. Journalists based at the Bomas of Kenya, which was the national elections centre, referred to it as the Bomas screen saver.

When the electronic system failed, the IEBC again relied on the paper forms, which had to be ferried from all over the country to Nairobi. As expected, the paper forms were highly problematic. Issues with the polling station-level tallying forms (Forms 34) included:

  1. Many Form 34s showed that there were more votes cast than registered voters. In Turbo constituency, Polling Station 69, Stream 2, there were 784 votes cast but only 755 registered voters. In Polling Station 71, Stream 2, there were 741 votes cast but only 716 registered voters. In Kacheliba, Polling Station 112, there were 215 votes cast but only 214 registered voters.
  2. In some Form 34s, only some presidential candidates were listed. For example, in Baringo South, Polling Station 91, Stream 1, it was only the names of Uhuru Kenyatta, Raila Odinga and Paul Muite that appeared. Some candidates were also missing from Form 34 in Baringo South, Polling Station 68, Stream 1.
  3. Many of the figures on the form did not add up. For instance, one of the most glaring discrepancies occurred in Kacheliba constituency, Polling Station 102. Here, the votes cast are recorded as 0, while there are 170 rejected votes and 170 valid votes. In Baringo South, Polling Station 117, Stream 1, there were 133 valid votes and 0 rejected votes, which should total 133 votes cast. The figure for votes cast, however, was 134. In Cherangany, Polling Station 2, Stream 5, the number of valid votes is 332 and the number of rejected votes is 4, which adds up to 336 total votes cast. The number of votes cast, however, was 340. In Turkana North, Polling Station 12, the number of votes cast (340) did not equal the number of valid votes (340) plus the number of rejected votes (5).
  4. There were several instances of changes having been made to various figures on the form, with no authorizing signature next to the change. Such alterations affected individual candidates’ results, the total number of votes cast, the number of rejected votes, the number of valid votes and the number of registered voters. This change had the potential to affect other numbers on the form. For instance, a change to the number of rejected votes would necessarily change the number of total votes cast.
  5. In some forms, there was no figure indicating the number of registered voters. There was no official Form 34 for Polling Station 19 in Turkana Central. Instead, the results were reported on an ordinary piece of paper, which did not include the number of registered voters.
  6. Many Form 34s were missing. There was no Form 34 for Polling Station 84 or for Polling Station 99 in Turkana North. Polling Station 99 did not appear on the list of polling stations published on the IEBC website on February 24, 2013, but it did appear in the paper gazette. Forms 34 for Polling Stations 92 and 113 in Turkana Central were missing.
  7. Some forms did not include results for certain candidates. In Turkana Central, Polling Station 55, there were no results listed for Muite and Kenneth. In Turkana Central, Polling Station 65, there were no results listed for Kiyiapi, Karua, Dida, Muite and Mudavadi.
  8. There were non-identical duplicates of certain forms. In Turkana Central, Polling Station 89, there are 4 nearly identical copies of Form 34. It is unclear whether the numbers on these forms were counted multiple times. In Kacheliba, Polling Station 2, there were two forms with different entries. There were also multiple copies of perfectly identical forms, and it was unclear whether or not these figures were counted more than once.
  9. There were many forms in which it was extremely difficult to determine the exact value of the written figure, either because of the handwriting or because the original figure had been written over with another number. There were an overwhelming number of such cases, and the choice of which number to report was subjective.

The most worrying issues called the very accuracy of the count into question.

The failure of the electronic system was not a complete surprise. In the month before the 2013 election, tests of the electronic systems revealed significant problems. In fact, Sarah Elderkin detailed how a test of the system “had gone horribly wrong.” After one hour, only one of five mock polling stations could successfully transmit results. In this election cycle, the IEBC again plans to use an electronic system. The IEMS, mentioned above, includes results transmission. It is unclear, however, if and when the IEBC will publicly test the kits and publicly explain its plans for the kits’ dysfunction or failure. In fact, one of the most pressing unanswered questions in this cycle is related to proposed back up systems. New amendments to the electoral law allow for the use of complementary registration, identification and results transmission mechanisms, to be used in the event that the technology fails. To date, however, the election regulations only provide vague provisions about using the printed out register for voter identification in cases where voters cannot be found in the biometric list. The regulations do not clarify what, if any, complementary systems will be used in case the electronic results transmission system fails.

The lack of a clear definition of these complementary mechanisms is highly problematic, especially given Kenya’s political history and context. During mass voter registration, the IEBC used the green book in conjunction with the BVR kits. Does this mean that the green book was the complementary mechanism with regard to voter registration? Will the green book be used in addition to the printed out register to identify voters on election day?

Midway through the counting process, Kenyans watched the stream of live results freeze on television screens. Journalists based at the Bomas of Kenya, which was the national elections centre, referred to it as the Bomas screen saver.

There is one significant difference with regard to the law in the current election cycle. The High Court recently ruled that constituency level results for all elections are final and can only be appealed through a court process. The decision nullified Section 83(4) of the General Elections Regulations, which empowers the IEBC to “confirm” results before announcing them as final. The IEBC filed an appeal to the decision, with IEBC Chair Wafula Chebukati stating that constituency level officers could “make mistakes.” The IEBC’s decision to appeal has sparked some controversy, with the opposition threatening that there will be no election if the IEBC does not abandon its appeal and alleging that it means the Commission wants the power to unfairly change results. Civil society has also expressed its reservations about the appeal, suggesting that it erodes public confidence in the IEBC’s commitment to upholding the law.

Given the extreme controversy and suspicion surrounding the announcement of results in 2013 and in other past elections, the IEBC should acknowledge that there is significant public concern around the potential use of manual systems. To promote public faith, the IEBC should explain its rationale regarding the appeal. If constituency level results are erroneous, as Chebukati fears, a court process to address such problems would allow the public to see and understand the issues at hand. It would promote transparency. Surely, this option is better than a closed process in which the IEBC changes constituency results at the national tallying centre.

As it currently stands, it is unclear whether the IEBC and other stakeholders have learned from past elections. If public confidence is a priority, these stakeholders must immediately respond – at minimum – to the above public concerns in an honest and open way, remembering that it is voters who hold the power at this stage of the game, and it is voters who will ultimately decide the credibility of the election. The legitimacy of the upcoming election now hangs in the balance, but there is still time to save it…if only we are willing to learn from the past.

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Seema Shah is an elections expert with experience in North America, Asia and Africa. She holds a doctorate in Political Science, and her research focuses on electoral politics, with an emphasis on electoral integrity and electoral violence.

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Kenya’s Supreme Court: Old Wine in New Bottles?

In this second part of a three-part series, we examine the intrigues within the Judiciary that led to David Maraga becoming Chief Justice and its subsequent effects to the Judiciary and the Nation.

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Kenya’s Supreme Court: Old Wine in New Bottles?
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As the six Supreme Court judges were adjudicating Kenya’s first presidential election petition in March 2013, Justice Kalpana Hasmukhrai Rawal was waiting for a new president to take office and the newly elected National Assembly to convene so that her nomination as Deputy Chief Justice could move forward. The Judicial Service Commission (JSC) had settled on her appointment after interviewing a shortlist of applicants in February 2013. The Judges and Magistrates Vetting Board had earlier found her to be suitable to continue serving as a Court of Appeal judge. Justice Rawal eventually joined the Supreme Court on 3 June 2013.

Two years later, Justice Rawal became the second Deputy Chief Justice (after Nancy Baraza, who resigned after she was heavily criticised for abusing her authority by threatening a security guard after the guard demanded to search her at a mall) to be embroiled in controversy. In 2015, Rawal challenged a notice that she retire at the age of 70. Around the same time, the then Chief Justice, Dr Willy Mutunga, would announce that he wanted to retire early so that the next Chief Justice would be appointed well ahead of the next election.

In May 2014, Justice Philip Kiptoo Tunoi and High Court judge David Onyancha challenged the JSC’s decision to retire them at the age of 70. They argued that they were entitled to serve until they reached the age of 74 because they had been first appointed judges as under the old constitution.

What seemed like a simple question about the retirement age of judges led to an unprecedented breakdown in the collegiate working atmosphere among the Supreme Court judges that had been maintained during the proceedings of the presidential election petition. During the two years it took the judiciary to address the question of whether judges should retire at 70, as decreed by the new constitution, or at 74, as was the case under the old constitution, three Supreme Court judges openly challenged the authority of the JSC in handling the age issue. When the matter reached the Supreme Court, the intrigues that emerged brought the country’s highest court to its lowest point in its short history.

In May 2014, Justice Philip Kiptoo Tunoi and High Court judge David Onyancha challenged the JSC’s decision to retire them at the age of 70. They argued that they were entitled to serve until they reached the age of 74 because they had been first appointed as judges under the old constitution. Justice Onyancha suddenly abandoned his cause and resigned quietly.

Justice Rawal filed a similar petition in September 2015 when the JSC issued her a notice of retirement. The following month, Dr Mutunga announced that he would retire before reaching the age of 70.

A letter sent to the JSC by Justices Jackton Boma Ojwang, Mohamed Khadar Ibrahim and Njoki Ndung’u on 24 September 2015 threatened a solidarity strike by the three if the commission continued to insist that judges retire at 70. The letter triggered a petition by the chief executive officer of the Law Society of Kenya (LSK), Mr Apollo Mboya, seeking the removal of the three judges from office for insubordination. A JSC committee investigated the allegations against the three judges and elected to reprimand them – but Justice Ndung’u contested the decision in court where it is pending determination.

On 11 December 2015, the High Court unanimously decided that Justices Rawal and Tunoi should retire at 70 – a judgment affirmed by a seven-judge bench of the Court of Appeal on 28 May 2016.

On the same day, Justice Rawal sent an application to the Supreme Court seeking suspension of the decision. She also asked the court to set a date for hearing her appeal. Justice Ndung’u, sitting alone, received the application and granted her requests. She set the hearing date for 24 June 2016, eight days after Dr Mutunga’s planned retirement as Chief Justice.

Dr Mutunga, who was meant to be abroad but had not travelled due to illness, called the file and brought the hearing date set by Justice Ndung’u forward since she had certified the matter as urgent.

On 14 June 2016, three judges recused themselves from hearing the appeal to avoid perceptions of bias. Dr Mutunga and Dr Smokin Wanjala said they did so because they were members of the JSC when the commission determined the retirement age for judges was 70. Justice Ibrahim apologised for his conduct in threatening a strike earlier and voted with the two. Prof Ojwang and Justice Ndung’u took the opposite view, arguing in their dissenting opinions that the different positions the judges had taken on the matter did not mean they would be biased when hearing the appeals. In the event, the Court of Appeal’s judgment on the matter became the final decision on the issue of the retirement age. Rawal and Tunoi retired. Dr Mutunga, too, retired as Chief Justice two days later, thus opening up three vacancies in the top court, but the rift in the Supreme Court would persist until the 2017 presidential election petition.

A last-ditch effort was proposed to save the two judges. It entailed waiting until Dr Mutunga had left office to have President Uhuru Kenyatta name Justice Ojwang as Chief Justice in an acting capacity, according to Platform publisher Gitobu Imanyara. With Justice Ojwang at the helm of the Supreme Court, albeit temporarily, it was expected that Justices Rawal and Tunoi would apply for a review of the recusal decision. A full bench was subsequently expected to hear the case, reverse the Court of Appeal judgment, and allow judges appointed before the adoption of the new constitution to serve until the age of 74.

Competing interests had already begun to play out in the race to replace the Chief Justice and the departing Supreme Court justices. The departures would significantly change the composition of the court, and with it, its posture and prudence.

It was Kenyatta (reportedly fearing the embarrassment of having another of his decisions struck down by the court) who declined to go along with the plan to appoint an acting Chief Justice. When the matter formally came up at the JSC, introduced by acting chair Prof Margaret Kobia, there was uproar. It is against this background that the JSC began its search for a new Chief Justice and two Supreme Court judges.

Competing interests had already begun to play out in the race to replace the Chief Justice and the departing Supreme Court justices. The departures would significantly change the composition of the court, and with it, its posture and prudence. It was no longer in doubt that the pitched battles around the departure of the two judges had demolished any pretence at collegiality in the Supreme Court, with judges openly differing with each other.

A safe choice

David Maraga would emerge as the dark horse in the Chief Justice’s succession race ahead of law professor Makau Mutua and Supreme Court judge Smokin Wanjala. With a combined 13 years as High Court and Court of Appeal judge, Maraga’s public posture was that of a deeply religious and conscientious man – an elder of the Seventh Day Adventists Church who would not work on the Sabbath before sunset. During his vetting as a previously serving judge, he offered to swear on the Bible that he had never taken a bribe.  He also famously said during his interview that he would never work on the Sabbath even if an election petition were in progress.

Justice Maraga had served as an inaugural member of the Judicial Working Committee on Elections Preparations (JWCEP) before taking over as chairman. He is regarded as one of the foremost authorities on electoral law, not just because he has written on the subject, but more so because his decisions have never been overturned on appeal. He beat a field of nine finalists to be nominated Chief Justice as a compromise between institutional insiders who wanted stability and the executive, which wanted a pliable person.

In contrast to his predecessor, Justice Maraga appeared to be a safe choice for the establishment. He was as a conservative, unlike Dr Mutunga. He had not been involved in politics and was a judicial insider. The new Chief Justice would also have the 2013 precedent of the Supreme Court to rely on. So safe was he considered to be that Uhuru Kenyatta, while giving a campaign stump speech, deigned to mention Justice Maraga’s appointment as one of the political favours extended to the Kisii community, drawing the Chief Justice’s rebuke.

Just like Dr Mutunga before him, Justice Maraga had no hand in selecting the six judges he was going to lead as President of the Supreme Court. Three were already in place (appointed in 2011) therefore outranking him in experience in the court, and the two new ones were appointed at the same time as he was.

The filing of the August 2017 petition guaranteed Justice Maraga the one case he was certain would be his legacy as a jurist. Regardless of how he was going to rule, the opportunity and chance to do it was a moment that conferred great personal prestige.

60 Days of Independence: Kenya’s Judiciary Through Three Presidential Election Petitions

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Chosen as Deputy Chief Justice was Philomena Mbete Mwilu. She had 32 years of experience in law, serving as a member of the Electricity Regulatory Board and the Energy Tribunal before her appointment as a judge of the High Court and the Court of Appeal. She had also spent considerable time as a legal officer at Jubilee Insurance Company.

Justice Mwilu was notably one of the three High Court judges who had declined to declare the composition of the 2011 Supreme Court unconstitutional for not meeting the requirement that no one gender should constitute more than one-third of any electoral or appointive body.

The third was the slightly graying Isaac Lenaola, whose solid 13 years experience in the High Court, and as Deputy President of the East African Court of Justice enabled him to leapfrog his seniors in the Court of Appeal to the apex court as its youngest member. At the High Court, the judge had distinguished himself as a hardworking head of the Constitutional and Human Rights Division, renowned for its landmark decisions.

Lenaola had also served on the 28-member Constitution of Kenya Review Commission, which collected public views and produced a draft in September 2002, which formed the basis for the new constitution adopted in August 2010. He had been instrumental in negotiating the adoption of vetting of judges and magistrates as a lustration measure to usher in the new constitutional changes in 2010, and had served as the High Court’s first representative to the JSC until 2014. Before joining the bench, he had worked in civil society promoting minority rights.

Conservatives back in the saddle

While Kenyatta’s team was working to change the court’s composition, his rival, Raila Odinga, had forced a negotiation of the electoral law in Parliament. Through legislation and subsequent litigation, the landscape in which elections would be held was significantly altered. The Independent Electoral and Boundaries Commission (IEBC) was disbanded and reconstituted and the electoral law was amended and set out in greater detail. Litigation also settled questions around the audit of the voters’ roll, the printing and procurement of election materials, and the transmission of results.

A case filed by human rights advocate Maina Kiai produced decisions at the High Court and the Court of Appeal that made the polling station central in determining election results. Lawyer Ahmednasir Abdullahi, who would later sign up as one of Kenyatta’s advocates during the hearing of the 2017 petitions, remarked that election-related litigation had been conducted on “an industrial scale”. He had boisterously defended the chairman of the IEBC during the 2013 petition, when he pejoratively referred to the Supreme Court as a young court that was “still crawling”.

“It is good, especially for a young court – which is crawling – it is good for it to show judicial restraint. You will find opportunities later in life where you can express yourself more,” he said, to the roar of laughter in the courtroom.

Ahmednasir’s words carried great weight at the time, considering that he was not only a senior counsel and former chairman of the Law Society of Kenya, but he had also been chairman of the Kenya Anti-Corruption Authority (the precursor to the Ethics and Anti-Corruption Commission) and had played a starring role in forcing a Court of Appeal judge to resign over corruption allegations by providing closed-circuit television evidence of the judge receiving a bribe in a city hotel parking lot. His anti-corruption credentials saw the LSK elect him as their representative to the new JSC that would interview and nominate judges in 2011, including the Chief Justice and the Deputy Chief Justice. His abrasive questioning of applicants won him admirers and foes in equal measure, but it also implanted in the public psyche the possibility that he had an unhealthy stranglehold on the inaugural Supreme Court.

However, the spell he had over the judges during the 2013 election petitions was definitely broken in 2017. Although he had lost the election to continue representing the LSK on the JSC, he was still treated with great deference. When he rose to speak as Kenyatta’s lawyer in the August 2017 petition, his full crop of hair was greying in the middle, and he did not seem to have the same leeway he had enjoyed four years earlier.

After the 2013 Supreme Court disappointment, three-time presidential contender Odinga had publicly declared in the run-up to the 2017 election that he would not petition the courts if his fourth run did not succeed.

Justice Maraga found a Supreme Court that did not wig and only robed in green gowns. However, as the seven justices made their appearance in August 2017 in red robes, white bibs and wigs, it was clear that the conservatives were back in the saddle.

When, however, the opposition decided to head to court after Uhuru Kenyatta was declared winner of the presidential election, it found a prepared bench. On Saturday, 26 August, when the sun had gone down and the Sabbath observed by Seventh Day Adventists had formally ended, the court convened its pre-trial conference to accommodate the Chief Justice’s religious practice.

Justice Maraga found a Supreme Court that did not wig and only robed in green gowns. However, as the seven justices made their appearance in August 2017 in red robes, white bibs and wigs, it was clear that the conservatives were back in the saddle. Where Justice Mutunga – the cool earing-wearing CJ – presided over the court with an iPad and enjoyed meeting young people, his successor was reticent and retiring. Maraga was an old school judge who placed great premium on rules and traditions. Or was he?

Greater vigilance

The Supreme Court had to decide the petition before the expiry of the constitutionally prescribed 14-day deadline, which fell on another Sabbath – the following Saturday. Before the hearing began, the Supreme Court gave the petitioners access to the IEBC servers to verify the results transmitted from the polling stations to the national tallying centre. It also granted the application for a court-supervised scrutiny of the forms used to collate the presidential votes.

The petitioners assembled a veritable team of veteran lawyers, among them Senators James Orengo, Okong’o Omogeni, former Attorney General Amos Wako, Member of Parliament Otiende Amollo, law professors Mutakha Kangu and Ben Sihanya, veteran litigator Pheroze Nowrojee and 28 others.

In 2013, the court had been totally unprepared for the management of electoral disputes, which undermined its ability to interrogate the IEBC’s ICT and voter register failures. Its naivety also exposed it to deception by its own administrative staff.

Kenyatta’s team was led by Fred Ngatia, Ahmednasir Abdullahi, and PLO Lumumba. The IEBC relied on senior counsel Paul Muite, Lucy Kambuni, Paul Nyamodi and Tom Macharia. A good number of the judges – Justices Ojwang, Wanjala, Ibrahim and Ndung’u – had done their pupilage at Waruhiu, Muite and Company Advocates, Paul Muite’s firm.

Just as had been the case during the 2013 petition, the proceedings were broadcast on live television.

Meanwhile, the Judiciary Working Committee on Election Preparations had become a permanent fixture and in 2015 had been renamed the Judiciary Committee on Elections (JCE) and a chief executive had been appointed for it along with research staff. Its mandate was to build on the experience judges had gained in arbitrating the electoral disputes of 2013 and preparing the institution for the next election. The framework for handling electoral disputes was now in place.

In 2013, the court had been totally unprepared for the management of electoral disputes, which undermined its ability to interrogate the IEBC’s ICT and voter register failures. Its naivety also exposed it to deception by its own administrative staff. Perhaps it was the new Chief Justice’s four years at the helm of the JCE that encouraged him towards greater vigilance. The court had even organised a retreat in Mombasa to undergo training in the ICT systems used by the IEBC to enable it to make better decisions.

Additionally, although Odinga was not optimistic about a favourable court decision, his legal team was much better prepared in 2017 than it had been in 2013. He had approached the court, offering it an opportunity to “redeem itself” from its 2013 decision, but was also ready to delegitimise it. Unlike in 2013, his lawyers were conscientious, diligent and fully involved in the scrutiny and document review. The IEBC, on the other hand, was cavalier and would prove to have been poorly prepared compared to the case in 2013.

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After the Vote: What to Watch and Hope for in Buhari’s Second Term

Buhari has an opportunity in his next four years to lead the country as a nationalist, as the leader of a Nigeria for all Nigerians. Such national appeal is necessary in order to assuage credible fears about the marginalisation of any region or any ethnic, religious or linguistic group; if he fails to allay these fears, the fault lines of identity will only deepen.

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After the Vote: What to Watch and Hope for in Buhari’s Second Term
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On May 29, 76-year-old Muhammadu Buhari will be inaugurated for a second, four-year term as president of Nigeria.  Despite a modest first-term record, economic stagnation and ongoing insecurity throughout wide swathes of the country, and continuing uncertainty over his health, Buhari defeated his principal rival Atiku Abubaker of the People’s Democratic Party (PDP) and a field of 71 others to win a substantial 55.6 per cent of the vote, a margin of nearly 4 million votes over Abubaker.  Although Buhari’s victory is being disputed in court by Abubaker and others, it seems unlikely that any irregularities will be deemed severe enough for the judiciary to overturn the outcome of the vote.

Buhari’s health notwithstanding – the president just returned from a ‘private visit’ to the United Kingdom, where he previously received lengthy medical treatment in 2017 – some commentators argued before the February vote that the president’s re-election was in doubt.  Many thought the election would be more competitive than it turned out to be.  The low participation of Nigerians – particularly in the southern states – argues otherwise.  Although Nigeria’s voter rolls hit a record 84 million registrants (albeit more than 11 million voter cards went uncollected), at least by the measure of voter participation, Nigeria can no longer claim to be Africa’s largest democracy.

Buhari, a retired general and former military head of state in the 1980s, was an immensely popular figure, with the credibility to confront the country’s security challenges, notably the Boko Haram insurgency that had by then proliferated throughout northern Nigeria. Jonathan’s defeat, in part, was a result of his perceived failure to marshal the security agencies to effectively respond to this threat.

Nigeria’s Independent National Electoral Commission (INEC) has yet to publish the number of votes cast in the gubernatorial and state legislative elections, but turnout for these polls may well have been lower than for the presidential elections. Though Ethiopia, with around 100 million people, is still dwarfed by Nigeria’s population, and some Ethiopian vote counts might have been artificially inflated by the regime of the day, leaving lingering questions about irregularities in those polls, the point of comparison remains: Nigeria’s vote demonstrated widespread political apathy in the continent’s most populous country. While there was much relief that the elections passed without significant outbreaks of violence, twenty years after the restoration of multiparty democracy, it seems that Nigerians have contracted a democratic malaise.

Why is this? What challenges lie ahead in Buhari’s second term? And what can be done?

A frustrating first term

Buhari came to power at a moment of optimism in Nigeria. In 2015, defeated incumbent Goodluck Jonathan handed over power without conditions, despite some in his camp urging him not to concede. A smooth transition was far from inevitable. Sixteen years of PDP rule had been broken by a new opposition alliance, the All Progressives Congress (APC), which promised to sweep corruption out of Nigeria, and bring real change to the country.

Buhari, a retired general and former military head of state in the 1980s, was an immensely popular figure, with the credibility to confront the country’s security challenges, notably the Boko Haram insurgency that had by then proliferated throughout northern Nigeria. Jonathan’s defeat, in part, was a result of his perceived failure to marshal the security agencies to effectively respond to this threat. Buhari offered a mantra of change anchored on the philosophy of security.

However, the Buhari government, while upbeat about its ability to improve the security environment, underestimated the reality of the security challenges, and concentrated on tactics, rather than strategy. Recent years have seen a series of poorly executed attempts to close the barn door after the proverbial horse – or perhaps, to be more transportationally accurate, the pilfered Land Cruiser of the militant – has long since bolted. Ultimately, Boko Haram might now be degraded, but it is certainly not eradicated. And even as government forces achieved some successes, military losses were heavy, and army morale was always in doubt.

Even though Boko Haram has receded in its lethality, other security problems have mounted over Buhari’s term in office, notably the so-called farmer versus pastoralist conflicts, which occur throughout the northern and middle belt states of Nigeria. While these clashes are largely described in similar terms – as a reckoning between two fundamentally different forms of primary economic production – there are, in reality, different modalities of conflict within the rubric, which, when conflated, are oversimplified. Some disputes are genuinely environmentally-motivated, as pastoralists and farmers effectively compete for the same scarce resources. Some are motivated by retribution for past inter-communal wrongs, real or perceived.

But many others are not “clashes” as this word might first connote: there is rarely a battle between two well-defined armed forces. Instead, organised militarised groups have acted to displace others from their lands, who are usually unarmed. Perceptions abound that this is either politically orchestrated and/or politically instrumentalised, although evidence is hard to come by.

Irrespective of their motivations, some argue that such violence has continued because of ineffective responses by the state and a reluctance to deal with their root causes. Overall, Buhari’s administration is widely felt to have lost the ability to contain, mitigate, or prevent such violence. Coupled with organised banditry, a rapid rise in the sophistication of kidnapping gangs (who, despite the headlines, more frequently target Nigerians than foreigners for ransom) and continued insecurity in the oil-producing areas of the Niger Delta, insecurity for many Nigerian citizens is a daily, and sadly-accepted, fact of life.

In some respects, expectations of Buhari’s assumption of power were little different from those that have characterised each of Nigeria’s political transitions since the return of democratic rule in 1999. A repeated promise to review the nature of the country’s federalism – which in such a vast and varied country raises implications far beyond the brand of constitutionalism of the state – returns to questions about what the state is for, and the distribution, and redistribution, of economic resources and political power.

To be fair to Buhari, many of the challenges Nigeria faces are not new, nor of his making. In less than five years, Nigeria’s currency has devalued from about 200 naira to the U.S. dollar to 360, with the predictable inflationary effect, even as the personal economy of many Nigerians stagnated. In addition, Nigeria is still overly reliant on earnings from petroleum, despite the vast majority of the labour force not being employed by the oil sector.

After Buhari’s first term, the situation remains much the same: the central determinants of the nature and character of governance and inter-group relations are still unchanged, with those for whom the federation does not work – and the millions of Nigerians for whom the state does next to nothing – still waiting for more. Beyond the comical scandals and the embarrassments that have so far characterised Buhari’s time in office, these more profound frustrations and limitations remain.

Beyond personalities: Structural economic challenges

To be fair to Buhari, many of the challenges Nigeria faces are not new, nor of his making. In less than five years, Nigeria’s currency has devalued from about 200 naira to the U.S. dollar to 360, with the predictable inflationary effect, even as the personal economy of many Nigerians stagnated. In addition, Nigeria is still overly reliant on earnings from petroleum, despite the vast majority of the labour force not being employed by the oil sector. For those at the bottom of the income pyramid, the opportunity of social mobility is all too distant. While technically Nigeria exited economic recession in 2017, even as the International Monetary Fund (IMF) observed that it was “the recent rise in oil prices [that] is supporting the recovery.” Regardless of the IMF’s prognostication, or the recent reassurances of the Central Bank in response to the prediction of some at the Nigeria Governors’ Forum that another recession was looming, popular sentiment remains pessimistic.

Can Nigeria provide economic opportunity for its people beyond the sticky black gold? A surging population both demands and requires that attention. While insecurity – whether caused by Boko Haram, inter-communal conflicts, banditry, farmer-pastoralist conflicts, violence in the Delta, the secessionist movement of the Independent People of Biafra (IPOB) in the south east, or simmering grievances caused by the prolonged, detention of Ibrahim El-Zakzaky, the leader of the Shia Islamic Movement of Nigeria (IMN) – is a real and contemporary issue, Nigeria, more so than any other African country, is brimming with young people who want jobs, education, and a chance to better their lives. More than a million young Nigerians join the labour force every year. Conventional politics and politicians have yet to offer an answer for many of these Nigerians, who may well be condemned to a near-permanent class of unemployment or underemployment.

Before and after the election

Survey data from Afrobarometer, which polled Nigerians before the 2019 elections, showed that only 35 per cent of Nigerians trust the INEC “somewhat” or “a lot.” It’s hard to know whether INEC’s 2019 performance has dramatically affected these numbers, but the general aura of competence and professionalism that the current iteration of INEC hoped to enjoy was first damaged by INEC’s poor communication with the public leading up to the vote. Moreover, the middle of the night postponement – almost literally, as well as figurately, at the last minute – of the presidential and national assembly elections, originally due to be held on 16 February, conjured a thick cloud of doubt over INEC, from which the current commissioners’ reputations may not recover.

Though INEC was able to conduct the elections on the rescheduled dates a week later, its claims of competence and preparedness were inevitably undermined, and its image severely tainted. The goodwill extended to INEC, conditional and partial though it may have been, the legacy it received from its credible administration of the 2015 polls, largely dissipated. Had the election results been closer, and had the commission’s role been more scrutinised, the situation could have been very bad indeed. If there was a silver lining to the cloud of delay, it was that in the aftermath of the postponement of the presidential election, INEC offered a concrete communication strategy, and a much-needed daily public briefing on its activities and plans. But such a basic public relations effort could easily have been instituted at a much earlier stage.

And, as feared, security actors, and particularly in the southern state of Rivers, the military militarised the electoral process. Despite INEC’s assurances that the police would be the lead agency on electoral security, this was not the case. In states where election-related violence occurred, including Kano, Rivers and Lagos, a lack of neutrality and professionalism on the part of some security personnel that were deployed to provide security during the elections was a contributing factor. The army has since established a committee to probe allegations of misconduct; Nigerians await the findings of these investigations and the extent to which the army high command will discipline those found responsible.

One of the biggest challenges facing the Buhari government is exclusion – he must ensure social cohesion and must manage diversity by prioritising a religious and ethno-regional balance in public appointments, accompanied by a fair and equitable distribution of the country’s resources

Yet, as with Buhari, Nigeria’s electoral woes transcend any single election commissioner or army officer. The prophecy of institutional poor performance is all too often self-fulfilling. The existing widespread Nigerian scepticism of government and state institutions is only exacerbated by every failure, while the pattern of ethno-regional and religious alliances that underpin the national electoral process seems to provide an enduring and recurring basis for political instability and state capture.

The challenges ahead are not insurmountable

In the past, the opportunities for addressing some of Nigeria’s core challenges have been mostly wasted. The protracted debate about the management of the country’s national diversity remains protracted and unresolved. One of the biggest challenges facing the Buhari government is exclusion – he must ensure social cohesion and must manage diversity by prioritising a religious and ethno-regional balance in public appointments, accompanied by a fair and equitable distribution of the country’s resources. It is vital that the number of votes Buhari garnered from a particular region or perceived to gain from particular groups is not the basis for the administration of the nation.

Buhari has an opportunity in his next four years to lead the country as a nationalist, as the leader of a Nigeria for all Nigerians. Such a national appeal is necessary in order to assuage credible fears about the marginalisation of any region or any ethnic, religious or linguistic group; if he fails to allay these fears, the fault lines of identity will only deepen.

Further, a fundamental overhaul of the country’s security architecture is desperately needed. While there is no single reform that will address the myriad forms of insecurity, the government’s approach to the country’s security challenge needs a fresh and a deep reform of the military command’s hierarchy to allow for fresh ideas and strategies to emerge.

Finally, beyond assenting to a bill to introduce a minimum wage, the government needs to devise creative approaches to genuinely address national economic development and diversification. Nigeria’s boat cannot only be floated by the world’s oil price. The patience of many young Nigerians is not infinite: at some point, in the not too distant future, the logic of the state may no longer be sustainable.

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A Spring in the Horn: Unpacking the Mass Protests and Transitions in Sudan and Ethiopia

The Horn is at strategic crossroads. There is immense hope but also great fear. How Ethiopia and Sudan manage their fraught transitions and the prospects for success and reversal remain unknown. What is not in doubt is that a botched transition in both nations will crush the dreams of millions and their quest for liberty and a better quality of life. It will also embolden autocratic regimes and vindicate their ideology of stability.

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A Spring in the Horn: Unpacking the Mass Protests and Transitions in Sudan and Ethiopia
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Two mass protest movements have, in quick succession, forced regime changes in Sudan and Ethiopia, two of the Horn of Africa’s quintessential “hard” states. A deep-seated disillusion with the security and developmental states drives the new “revolutionary” mood. What is less clear is where all the ferment and the popular demand for a new dispensation will lead.

In Sudan, the ouster of Omar al-Bashir has been followed by a partial retreat of the security state. In Ethiopia, the election of a reformist Prime Minister and a year of sweeping reforms have extensively eroded the power of the security deep state.

Yet, neither Prime Minister Abiy Ahmed Ali’s extensive cull nor the Sudanese military council’s modest targeted purge constitute a fundamental dismantling of the structures of the security state. More importantly, the transitions underway in the two countries, were, in the initial phases, at least, top-down attempts by the security state to engineer a soft landing with minimal disruptions.

Prime Minister Abiy’s singular act of genius lay in the way he deftly subverted a strategy of piecemeal reform assigned to him by the ruling party and began almost single-handedly to unravel old Ethiopia at breakneck speed.

The retreat of the authoritarian order in both Ethiopia and Sudan opens up huge possibilities: a generational opportunity for meaningful and positive change but also great risks.

In Ethiopia, a year of “deep” reforms under the youthful reformist Prime Minister has put the transition on a rocky but relatively steady positive trajectory. Overall prospects for good governance, civil liberties and human rights continue to improve.

In Sudan, the situation is less hopeful and remains, so far, uncertain. The hopes and expectations raised by the resignation of Omar al-Bashir after 30 years in power now grates against the reality of a potentially messy and protracted transition following a controversial intervention by the army. The Transition Military Council (TMC), made up of al-Bashir’s allies, is struggling against mounting popular discontent to manage an interregnum.

The Horn is at strategic crossroads. There is immense hope but also great fear. How Ethiopia and Sudan manage their fraught transitions and the prospects for success and reversal remain unknown. What is not in doubt is that a botched transition in both nations will crush the dreams of millions and their quest for liberty and a better quality of life. It will also embolden autocratic regimes and vindicate their ideology of stability.

The unprecedented upheaval and ferment in the two Horn of Africa states provide an extraordinary window into the complex, diverse, and obscure changes and currents shaking up society and traditional politics. These contextual dynamics must not be overlooked in the analyses of Ethiopia and Sudan.

Sudan’s turbulent interregnum

Sudan and Ethiopia offer two fraught transition “models”: atypical, unstable and potentially reversible. While dissimilar in some key aspects, both are attempts at a top-down fix, reliant on continued goodwill and support of the military/security services and dominant parties. More importantly, the two transitions are not outcomes of political and constitutional settlements, and are likely to remain contested and unsettled for some time.

Sudan’s transition is in its infancy and is dogged by a host of challenges. Of the two countries, it is the one with the greatest potential for a short-term crisis, but, if successful, one that opens enormous possibilities for improved governance and stability.

Formal, direct talks between Sudan’s protest movement and the military began on 27 April but quickly hit a snag barely two days later. The key sticking points: the length of the transition (the military wants two years while the protest movement favours four years on the basis that more time is needed to undo the damage of 30 years of misrule); composition of the proposed Sovereign Transition Council (STC); and who should lead it.

On 30 April, the TMC issued a series of controversial and unilateral decisions that escalated the stalemate into a crisis. The council said the STC would be headed by the military and that 7 out 10 posts would be allocated to the military (contrary to the Sudanese Professional Association [SPA]’s demand for a 15-member council, the bulk of whose members should be civilian). It further called on the SPA to dismantle barricades at the Army Command in Khartoum and to get protesters off the streets.

The generals had been angling for a longer pre-transition period from the start. This was largely based on the assumption that they stood to gain more from the tactical point of view; the SPA had more to lose. But there are other pressing calculations. First, more time allows the TMC to sort out internal divisions. Second, it gives it the leg room to craft and fine-tune its negotiation strategy. Third, it provides the TMC with the opportunity to drag out the process and wear down the pro-democracy movement – the so-called “attrition option” that has served the military well in the past.

At the heart of Sudan’s chaotic and bitter transition contest – indeed, the crisis of legitimacy/credibility – is the self-appointed TMC. It is made up of senior generals, all beneficiaries of the army purges in the last one decade by al-Bashir that elevated loyalists to key posts.

The decision by the African Union to extend the TMC’s life by three months, is, therefore, a major victory for the military. It now has up to the end of July 2019 to set up an authority to oversee the transition and to agree to a roadmap with the opposition. A viable transition roadmap in Sudan depends on consensus between the five distinct actors/constituencies: street protesters; the leadership of the protest movement; traditional parties; the TMC; and regional actors. This will not be easy; it is almost certain that divergent aims, interests and calculations could prove a major impediment.

The Military Council: A reluctant reformer          

At the heart of Sudan’s chaotic and bitter transition contest – indeed, the crisis of legitimacy/credibility – is the self-appointed TMC. It is made up of senior generals, all beneficiaries of the army purges in the last one decade by al-Bashir that elevated loyalists to key posts. They eased al-Bashir out and made a number of significant concessions. However, they controversially, stonewalled when it came to the speedy transfer of power to a civilian administration. Significantly, they have so far resisted popular calls for the dismantling of the so-called Dawlah-al-Amiqah or deep state – widely perceived as a covert power centre whose members include senior generals, securocrats and politicians who exercise extra-constitutional influence on the state.

What the TMC’s true aims are and what its interests and links with the deep state and foreign powers are, are all a matter for debate and conjecture. Far less speculative and hazardous, perhaps, is what it isn’t.

The council is essentially a product of a deep crisis within the state – a hastily created crisis-response tool to reassert military influence and manage a fluid political situation. It pulled back from imposing a state of emergency and allowed the protests to continue. It quickly shed unpopular senior ex-regime figures (such as the intelligence chief, Salah Gosh). It released some (but not all) political prisoners and reached out to protest leaders. These were all positive and encouraging steps that demonstrate that the TMC has significant agency, is pragmatic and is amenable to a political settlement.

Yet, the clumsy nature of the coup, the confusion in the first 48 hours, as well as the incoherent pronouncements and policy flip flops since then point to deep internal frictions. Tactically, this could be an advantage for the coalition leading the protests, potentially giving them greater room to nudge the TMC towards reform and to influence the agenda. It could also pose serious challenges in the coming weeks and months, especially if, as some fear, the council becomes opportunistic and capricious and its cohesions become more frayed.

But there must be no mistake about the TMC’s politics. Its primary goal is to maintain national “stability”. It views retention of military power, influence and privilege as necessary to achieve that “noble” goal. There is no evidence that it shares the democratic aspirations of the majority of the Sudanese people. It is instinctively suspicious of civilians and resistant to the idea of civilian oversight, and, even much less, civilian rule.

Sudan’s military for three decades waged not just war but also engaged in multiple peace processes and political negotiations at the local and national levels, involving armed and non-armed civilian opponents. Under al-Bashir, talks were conducted in the same manner as war was waged. Invariably, three distinct tactics, with roots in war strategy, were deployed to outflank and eviscerate the civilian opposition: accommodation, co-option and containment.

The official discourse and rhetoric surrounding the series of “national dialogues” in train for nearly two decades offers a fascinating glimpse into the appropriation of martial metaphors – a progressive “militarisation” of politics. Domestic politics was officially referred to as “jabhat al-daakhiliyah (internal front); political parties were reminded of the value of national cohesion and called upon to help “unify the ranks” (tawhid al-saf); dissidents were “cat’s paw” (mikhlab qit) of foreign enemies.

Sudan’s protest movement will be negotiating with a military that has set ways of dealing with civilian adversaries. Expectations that the military is willing to make a strategic and irreversible retreat from politics seems over-optimistic. The TMC’s 30th April pronouncements and the subsequent hardening of language certainly sowed doubts about the prospect of that happening any time soon. The unilateral and escalatory nature of the council’s statement goes against the letter and spirit of the negotiations. It may be a hint of an intense internal power struggle. It could also signal an attempt by hardline factions to assert greater control – a hypothesis lent some credence by the fact it was the TMC’s second-in-command, General Muhammad Hamdan Dagalo aka Hemedti, who was personally involved.

Hemedti, the commander of the Rapid Support Forces (RSF – Quwaat al-Da’m al-Sari’), has in recent weeks emerged as the real power within the TMC, playing court to visiting dignitaries and diplomats. His swift maneuvers to consolidate power within the military and security services are anything but coincidental. He was, for example, “elevated” to a “member” of the National Intelligence and Security Service (NISS). (An official SUNA news agency dispatch said that he was now “uzw” – a “member” of NISS – a vague term that is both odd and inexplicable.)

The RSF itself is affiliated to the NISS since it was established in 2013 from the rump of the Janjaweed militia. The original force of roughly 7,000 was drawn mainly from Hemedti’s own Rizaygat tribe in Darfur (an important factor in itself that partly explains its strong internal cohesion and loyalty to Hemedti). It has a complicated dual command chain, answerable to both the NISS Director-General and the regular Army General Command. Al-Bashir increasingly relied on the RSF and the Popular Police Forces in recent years to quell social unrest and low-level armed insurrections. The bulk of the RSF is now fighting in Yemen alongside Emirati troops, a decision based on RSF’s perceived counterinsurgency competence and adaptability to the Yemeni battlefield conditions.

Hemedti is young, ambitious and has powerful Gulf friends who are keen to see him play an influential role in the transition. He has a fearsome reputation, and is deemed both an able battle field commander and a skillful political operator. His rise to prominence since al-Bashir’s ouster and high visibility within the TMC suggest a resurgence of hardline elements keen not to cede too much ground to the protest movement.

Old parties and the protest movement

Sudan’s bewildering array of political parties, which are weak and deeply fragmented, were caught off-guard by the protests. However, they seem keen to be included in the transition talks. The TMC initially seemed to prefer a broad-based dialogue, in part because that could have neutralised the weight of the protest movement. It has since walked back and proposed a format that significantly shortened the list of participants, not least because of the risks of an unwieldy and fractious dialogue process that is impossible to conclude within the short timeframe it now has (three months).

Two distinct but complementary historical trends converged in the Horn protests: a massive demographic shift that progressively moved the youth to the centre of politics; and a technological revolution that provided them with the tools to effectively resist and organise. The sheer demographic weight and the volatility and restless energy unleashed by these changes cannot be ignored.

Sudan’s protest movement and its leadership hold the initiative in the contest to shape the transition. The call for freedom, justice and peace (emblazoned on every placard) gelled a fragmented nation and triggered the Horn’s most powerful and unprecedented mass protest movements. The expectations are high and the road to achieving them daunting.

The risk of fragmentation within the protest movement is also high. It is now made up of two distinct groups: Quwaa I’laan al-Huriyyat wal Tagyiir (Declaration of Freedom and Change Forces-DFCF) and the Sudanese Professionals Association-SPA (Tajamm’u al-Mihniyiin al-Sudaniyin). They are now broadly aligned in their demands. However, TMC’s co-option strategies and the attrition of protracted negotiation are highly likely to sow division.

Ethiopia’s transition is the outcome of two severe crises that shook the regime to the core: over four years of relentless mass protests in Oromiya and Amhara regional states; and a sharp economic downturn. The Ethiopian People’s Revolutionary Democratic Front (EPRDF) played a central role in the transition that engineered Abiy Ahmed’s rise.

The SPA and the DFCF have so far done a remarkable job in leading a cohesive, disciplined and non-violent mass protest movement. They must not sell themselves short in the delicate negotiations now underway. They must safeguard their cohesion, eschew personal ambition, remain vigilant against the familiar co-option “traps”, stay resilient and focused in the face of setbacks, and be hard-nosed at every phase of the negotiations.

Ethiopia’s unstable transition

Ethiopia’s transition is the outcome of two severe crises that shook the regime to the core: over four years of relentless mass protests in Oromiya and Amhara regional states; and a sharp economic downturn. The Ethiopian People’s Revolutionary Democratic Front (EPRDF) – the coalition of four ethno-regional parties that has dominated politics since the early 1990s – played a central role in the transition that engineered Abiy Ahmed’s rise.

It started off well in the early years, combining a reformist zeal with an accommodative approach to politics. Its fortunes for over two decades was tied to that of the charismatic and talented Meles Zenawi. It owes its structural and organisational resilience, and more importantly, its internal consensus-style ethos, to him. The aftermath of the controversial elections in 2005 and the massive crackdowns on protests ushered in a long period of repression, deflected the party from its democratic goals, and progressively strengthened the hegemony of the Tigray People’s Liberation Front (TPLF). But even in its weakened state, the EPRDF proved its dependability as an instrument of crisis management at critical junctures. It engineered a smooth transition of power after the death of Meles in 2012 and leaned on Hailemariam Desalegn to resign as Prime Minister in February 2018.

Abiy capitalised on the party’s internal institutional strength and exploited the antipathy to the TPLF to build the tactical alliances necessary to seal his victory at the EPRDF Congress in February 2018 Ironically, Abiy’s radical reforms, in particular, the planned swift transition to a conventional multiparty system, makes the future of the governing coalition perilous and uncertain. While the PM has orchestrated changes within the EPRDF and consolidated his grip over his own Oromo Democratic Party (ODP), many suspect the era of the dominant vanguard party may be coming to a close. Significantly, the Ethiopian Prime Minister has relied on a close-knit circle of politicians and inexperienced advisers to drive his fast-paced reforms, with minimal or no input from the EPRDF and other key institutions.

The benefits of a personalised elite-driven reform seem obvious. Abiy, arguably, needed the latitude and flexibility it provides to push through a raft of “deep reforms” and swiftly dismantle key pillars of TPLF’s power in the military, security services and economy.

The potential drawbacks of a highly personalised leadership style and an elite-driven reform process lacking sufficient institutional buy-in and support must be obvious. It is inherently risky and alienates the very agencies indispensable to implementation and long-term sustainability. Understood thus, the risks to reform in Ethiopia seem not so much bureaucratic inertia as bureaucratic recalcitrance. Rumblings of unease within the state and in the parastatals over key aspects of the reforms, from privatisation to the future of the ethnic-federalism system, reinforce these fears. The Prime Minister, rhetorically at least, is increasingly aware of this potential problem; he has stepped up meetings with key departments and pledged to deepen institutional engagement. However, his critics claim that the impromptu townhall-style meetings are cosmetic, and do not constitute structured policy dialogue.

Ethnic unrest

Identity politics may act as a catalyst for change, but its huge capacity to complicate transitions that foment new unrest must not be ignored. Ethiopia is an egregious example. Aggressive and adversarial strains of ethno-nationalisms, resurgent in recent years, pose grave conflict risks. Many ethnic conflicts are traditionally driven by contested borders and resource competition. Ethno-regionalism/nationalism aggravate these conflicts and make them intractable. Prime Minister Abiy’s stabilisation and consolidation efforts have had minimal impact in de-escalating the problem. Balancing multiple and contending ethnic interests proved far trickier than anticipated. His policy of accommodation to remedy historical injustices and allocate more government posts to marginalised communities and disadvantaged segments of the population won wider praise but either failed to mollify more militant and younger ethno-nationalist activists clamouring for deeper affirmative action, or reinforced resentment among other ethnicities.

This is particularly the case in Oromiya, where factions loyal to the Oromo Liberation Front that view the Prime Minister as a “traitor” to the Oromo cause, continue to stoke violence and undermine social cohesion. Several attempts to mediate an end to the ructions in Oromiya and reconcile the rival factions so far have produced shaky truces that failed to hold.

In Ethiopia, the economic crisis was largely induced by the frenetic pace of growth, skewed development, expensive infrastructure mega-projects and dependence on foreign (Chinese) loans. Abiy in early 2018 inherited a state that was virtually bankrupt, its foreign exchange reserve depleted and saddled with mounting and unsustainable debt-servicing obligations.

Meanwhile, the Abiy’s anti-corruption drive and political consolidation strategy, perceived targeted at curbing the influence exerted by the minority Tigrayan ethnic community on the country’s political and economic life, fomented serious backlash. The widely held perception that the premier’s new friendship with the Eritrean President, Isayas Afewerki, is partly motivated by a common desire to isolate the TPLF, served to further inflame sentiments in Tigray. The region is now effectively a mini-state, its relations with Addis Ababa deeply fraught and antagonistic. On-off dialogue between Addis and Mekele and a series of high-level meetings in 2018 failed to smooth relations or diminish the potentially dangerous siege mentality developing in Tigray. The region is where the country’s elite military units are garrisoned and where sophisticated heavy military hardware, including air combat assets, are kept (a legacy of the border conflict with Eritrea). An armed conflict – highly improbable but impossible to rule out – would be catastrophic.

Economic hardship

Economic hardships remain core drivers of social unrest in Sudan and Ethiopia. Conditions for the vast majority of their populations progressively worsened in the last five years. Sudan’s loss of oil revenues and subsequent deadlock over oil trans-shipment fees with South Sudan triggered the country’s severest economic crisis in decades. High inflation, currency turbulence and a series of austerity measures that saw subsidies lifted on bread and other commodities hit the lower classes hard and fomented the mass protests that quickly engulfed the whole country.

In Ethiopia, the economic crisis was largely induced by the frenetic pace of growth, skewed development, expensive infrastructure mega-projects and dependence on foreign (Chinese) loans. Abiy in early 2018 inherited a state that was virtually bankrupt, its foreign exchange reserve depleted and saddled with mounting and unsustainable debt-servicing obligations. An emergency deposit of 1 billion dollars into the treasury by the UAE helped to stabilise the volatile fiscal situation.

The short- to medium-term prospects look bleak, even though China’s decision to write off some of the debt in late April and signals of support from multilateral financial institutions and donors promise some relief.

In Sudan, the UAE similarly stepped in to shore up the currency by depositing money in the treasury. Donors have equally signaled readiness to help.

The gravity of the economic crisis in the two states and the improbability of a quick and dramatic improvement portend huge risks for the transition. Yet, the kind of tangible and irreversible progress in their delicate transitions necessary to unlock donor support and foreign investment hardly exists now and is bound to take years, by which time conditions would have deteriorated further.

In Ethiopia, the continued proliferation of ethnic unrest and violence in economically productive regions has triggered massive displacement – estimated at 3 million. The government’s inability to get on top of the situation is hugely destabilizsing in itself, but also certain to prove a major impediment to new foreign investment.

An emergency financial aid package for Sudan and long-term economic relief and stimulus package for Ethiopia seem the best options for the international community to shore up the transitions.

A youth revolt

The uprisings in Ethiopia and Sudan constitute the Horn’s first uniquely large-scale youth revolt; the first political coming-of-age of two youth generations embittered by economic hardship and the inequities of the “hard state”.

Ethiopia, with over 70% of the population (out of a total of 110 million) under the age 30, and Sudan with 60% of the population (42.5 million) under the age of 25, are examples of states where the demographic shift has been at its starkest, reflecting both the promise and destabilising potential of the so-called youth bulge.

Two distinct but complementary historical trends converged in the Horn protests: a massive demographic shift that progressively moved the youth to the centre of politics; and a technological revolution that provided them with the tools to effectively resist and organise. The sheer demographic weight and the volatility and restless energy unleashed by these changes cannot be ignored. The long-term viability and sustainability of the transitions hinge on how the disruptive impact of the youth bulge is managed.

The recurrent themes of the protests are familiar; they revolve around a set of socio-economic grievances that cut across the age-divide: jobs and better wages, economic growth, opportunities and autonomy, better services. Sudan’s unemployment rate is estimated to be around 21.4% or over 2 million of the productive labour force of 21 million. In Ethiopia youth unemployment stands at 19.5%

Social media and the diaspora

The protest movements in Ethiopia and Sudan are beneficiaries of the digital revolution, effectively harnessing the power of the smartphone and social media (Facebook, Twitter, WhatsApp) to challenge the regimes in power. These tools allowed them to organise, to break the state’s monopoly over information, and to generate their own multimedia content.

In the contest for narrative space, the state was severely disadvantaged. Its power of monopoly over communication (and access to sophisticated cyber-spying software) was offset by the technical savvy and ingenuity of the protesters. Frequent communication shutdowns that targeted SMS and Internet access proved ineffective. Protesters used VPNs and encrypted messaging apps and relied on diaspora supporters to bypass state censorship. Diaspora support in both instances was crucial and went beyond amplifying social media messages. Activists in North America and Europe mobilised funds, organised pickets and petitions, highlighted rights abuses, and raised the profile of these protests at the international stage.

The Oromo diaspora in the US, a close-knit community with its own influential media outlets, played a particularly pivotal role – a role recognised by Prime Minister Abiy himself when he made a “thanksgiving” tour of the US in 2018. A number of high-profile exiled figures have since been given high-level posts in the Ethiopian government.

Diaspora influence and power have not been without controversy, especially in Ethiopia. There have been claims that hardline activists disseminated fake news and inflammatory messages to stoke ethnic hostility and division. In Sudan, there is speculation (probably fueled by the military) that the diaspora is inciting intransigence and radicalising the protest movement.

The transition in Ethiopia has brought to the fore the simmering tensions between political classes inside the country and those abroad. Growing intra-Oromo divisions partly reflect both the type of rivalries, political divergence and clash of ambitions that could complicate the transition. A fracturing of the protest movement’s core support base remains a potential risk in a delicate transition such as Ethiopia’s but also the one in Sudan. The Sudanese reform movement has, so far, stayed remarkably cohesive. That unity is almost certain to come under great strain, especially in the highly likely scenario of protracted and intensely contested transition. The Transition Military Council favours a fragmented and weak opposition. All the signs indicate that this is an outcome it is actively working to achieve.

Identity politics

Sudan and Ethiopia are similar in a variety of ways. They are the Horn’s most diverse states with a combined total of 99 major ethnic groups and over 200 languages and dialects. They still remain geographically vast and unwieldy, even after secessionist wars and peace settlements led to a partition that diminished their original size. Both share a long history of multiple armed conflicts and vast, ill-governed and severely underdeveloped peripheries – conditions that incubated volatile forms of identity politics, insurrections and social unrest.

Both countries also experimented with decentralisation models designed to foster self-rule and greater autonomy. However, neither Ethiopia’s radical ethnic federal system nor Sudan’s conventional one achieved the desired aims. Instead, they replicated the ills of the central state, bred their own inequities, inflamed ethno-regional nationalisms and reinforced core-periphery tensions.

Ethnic identity politics was a potent factor in the Ethiopian mass protests; it provided the glue and energy. What is fascinating is not just the complex ways in which group grievances intersect, feed off/bleed into wider discontent, but the subtle, somewhat counter-intuitive ways in which even hitherto antagonistic ethnicities, regions and religious groups managed to cooperate and transcend their differences.

Ethiopia’s mass protests never evolved into a single nationwide movement like Sudan’s. They were almost exclusively confined to Oromiya and Amhara regional states, which are dominated by two ethnic groups divided by a long history of mutual antipathy. Yet, activists in the two regions drew energy and succour from each other’s protests; they cross-fertilized and learnt effective protest tactics from one another. (For example, Amhara region’s ghost-town tactics that paralysed cities were replicated in Oromiya.) Gradually, a new sense of mutual empathy and solidarity developed between Oromo and Amhara protesters. The seminal moment was when protesters in the two regions chanted “Down Down Woyane” – proof that the two distinct ethnic discontents had coalesced into a single national demand.

In Sudan, the protest leadership quickly tapped into and harnessed the vast array of diverse grievances to weave a set of key national objectives. With a comparably freer civic space, well-organised trade union movement and professional associations with a proud tradition of political activism, Sudan’s mass revolt took on a national character much more quickly than Ethiopia’s.

What tipped the scales was not critical mass (though that was important) but the emergence of a proto-narrative that encapsulated shared national goals.

In Sudan, the protest leadership quickly tapped into and harnessed the vast array of diverse grievances to weave a set of key national objectives. With a comparably freer civic space, well-organised trade union movement and professional associations with a proud tradition of political activism, Sudan’s mass revolt took on a national character much more quickly than Ethiopia’s. The rallies in Khartoum reflected the diversity of the nation’s social fabric and remained characterised throughout by a convivial, ecumenical spirit, as remarkable as it is rare.

Identity, protest and culture

Sudan achieved in protest what eluded it for decades: a genuine moment of unity in diversity. The protest rallies in Khartoum were a microcosm of the nation, bringing together diverse ethnic and civil society groups drawn from all regions, social strata and professions. Darfuris, Kordofanis and Nubians, women and other distinct social groups, aggrieved workers and traders – all disenfranchised and rendered powerless and invisible by state policies – were catapulted onto the national stage. They all made common cause and rallied around a single political message.

But the mass uprisings in Sudan and Ethiopia were not just animated by political and economic grievances; activists in Sudan actually took slight at media characterisation of their protests as “bread riots”. They were also impelled by cultural discontent – a sense of humiliation and anger at the state’s perceived cultural homogenisation, discrimination and misogyny.

In Ethiopia, the Oromo unrest was fueled, in part, by long simmering grievances over the status of the Oromo language and state interferences in religious affairs, while in Sudan, state-driven Islamisation and Arabisation remained major sources of social frictions.

The act of protest was in itself psychologically and culturally transformative, providing an opportunity to assert cultural pride and reclaim self-confidence and autonomy. The Oromo pride movement in Ethiopia and the rise of women in Sudan exemplify the cultural forces shaping the politics of protests and transitions.

Prime Minister Abiy’s open embrace and appropriation of Oromo culture and his gender parity campaign are just two examples of the symbolic and practical policy impacts. Hopes are high that Sudan’s new breed of assertive female activists will capitalise on the national mood for change and harness their collective picketing power to influence the transition’s agenda.

No less important, the rallies served asa vehicle for collective catharsis and radical empathy; a space to affirm values of mutual interdependence, solidarity, and peaceful co-existence.

The slogan “kuluna Darfur” (we are all Darfur) at the rallies in Khartoum, hopefully, was not just a feel-good empathetic response, but marks a fundamental positive shift in the way communities relate to one another.

Religion and culture

Religion – as a powerful galvaniser and conduit for protest and a repository of moral and ethical values necessary for a just society – has a long history in the Horn. The protests in Sudan and Ethiopia provide contrasting lessons in the resilience of religion and its potency to inspire and channel protest. But far more interesting is how the debate over the relevance of religion in governance continues to evolve.

The Oromo mass insurrection in Ethiopia gestated for many years; it fed off diverse, small and localised communal grievances before it snowballed into a national crisis. The big triggers – high youth unemployment, state-driven land grabs, punitive taxation, repression and violent crackdowns – are well known. Less noted and examined are the obscure and overlapping cultural and religious roots of the discontent brewing for close to a decade.

The political rebellion owed much of its resilience and success to the cultural revivalist movement gaining in momentum and influence in recent years. It drew energy, inspiration and self-confidence from the potent message of ethnic pride preached by Oromo elders like Abba Gadda.

Oromo traditional Waqqeffana religion, practised by a small fraction of the community (roughly less than 5%), played an important complementary role as a central pillar of cultural expression. Regarded as the indigenous faith of the Oromo nation, its rituals and spiritual teachings progressively galvanised millions. The Irrecha annual festival of harvests, with roots in the Waqqeffana religion, drew tens of thousands, and became a visible symbol of political and cultural consciousness and a focal point for the protests.

A series of Muslim unrests in Oromiya in 2012 quickly spread to other regions and continued to simmer for over 18 months. Much of the unrest was initially triggered by alleged state interference in Muslim affairs, but quickly aggravated by mass arrests of clerics and community leaders and the suspension of Muslim publications (such as Ye’Muslimoch Guday). The Muslim protests – viewed across Oromiya as evidence of the state’s wider malign intent against the Oromo – thus triggered the first spark that lit the fire of large-scale rebellion in 2014.

The Oromo nation’s ability to harness its cultural heritage and multiple faith traditions and to foster internal mutual respect and tolerance is unique. So too is the tradition of syncretism that indigenised Islam and Christianity and reduced the heat and social frictions generally associated with puritanism and proselytism. This cultural adaptability and inherent resistance to exclusivist manifestations of faith may partly explain why Salafism found Oromiya a less ambient and sympathetic territory to put down roots in.

The bid to project this benign and positive face of Oromo culture on the national stage was thwarted by fragmentation and factionalism, as well as by the political clout exerted by militant factions widely perceived wedded to an exclusivist ethnic agenda.

Prime Minister Abiy, a practising Pentecostal with Muslim heritage, represents this hybrid, pluralistic and healthy attitude to religion. While his fervent faith and the occasional unnerving messianic tenor to his speeches raised some concerns, the Prime Minister so far has acted with great sensitivity on matters to do with faith. He released detained Muslim leaders and appointed a record number to key state posts and reached out to the Orthodox Church.

Abiy’s medemer philosophy – based on values of love, compassion and solidarity in the New Testament – does not signal intent to “Christianise” or change the strong secular character of the Ethiopian state. The primary motive is to create a unifying principle around which the nation can rally.

A striking feature of Sudan’s protest movement is the near-total absence of Islamist slogans and the emergence of more assertive youthful female activists keen to raise their visibility, to subvert the strict dress code and to claw back their “huquq al-mar’a al-maqsub” (usurped fundamental rights of women).

However, the rise of evangelical churches and their aggressive proselytisation remain a source of anxiety within the influential Orthodox Church. But the greatest threat to religious harmony stems from ethnic conflict. Inter-communal violence in troubled pockets of the country in the last one year exacerbated religious tensions and triggered attacks on mosques and churches.

Islam in transition in Sudan

The controversial intervention in Sudan’s transition in recent weeks by Gulf actors (principally UAE and the Kingdom of Saudi Arabia), ostensibly aimed at preventing the Muslim Brotherhood from staging a comeback, is both ill-advised and dangerous. First, there isn’t the kind of cohesive, highly-organised Islamist opposition able to single-handedly gain dominance. Second, the TMC cannot be a guarantor of long-term stability nor can it serve as an effective bulwark against Islamism. Third, and assuming they cared to look deeper at the uprising and the social-political trends, they would have realised the depth of disillusionment with Islamist politics and generally with all traditional politics and parties. Finally, the Saudi/Emirati axis’s meddling alienates huge segments of society and is counter-productive to their twin strategic goals: maintaining Sudanese troops in Yemen and isolating the Muslim Brotherhood.

A striking feature of Sudan’s protest movement is the near-total absence of Islamist slogans and the emergence of more assertive youthful female activists keen to raise their visibility, to subvert the strict dress code and to claw back their “huquq al-mar’a al-maqsub” (usurped fundamental rights of women). The language and tone of discourse is deliberately non-confessional. These two complementary dynamics lend a mildly secular character to the uprising. For the first time in three decades, Islam is no longer a contentious subject for Sudan’s youth. But we ought to be careful in not drawing hasty conclusions. More importantly, we must avoid using the binary secular-religious mindset as a prism to analyse events in Sudan.

That the battle over Sudan’s future is being waged over traditional secular issues – liberty, justice and “bread-and-butter” issues – is emblematic, not so much of a society that is becoming secular, but one deeply disillusioned with the brand of Islam advocated by Hassan al-Turabi and enforced by al-Bashir for three decades. Sudan’s youth are rejecting the politicised Islam that underpinned al-Bashir’s quasi-Islamic state and the stifling social conservatism fostered by its intrusive policies.

Put differently, what we are seeing in Sudan is the early sign of a society that is self-correcting – seeking both to restore “health” to Islam and return it to its traditional orbit/sphere.

It is not yet clear who the secularists are in Sudan’s transition. No group has so far articulated what one might call a clear secular agenda. It is conceivable that some in the protest movement, such as traditional left-leaning parties (that played a big role in the protests) and even elements in the TMC opposed to Islamism, may make common cause and lock out Islamists from the transition. Whether all these diverse anti-Islamist “stakeholders” can agree on a common strategy to address the issue of Islam and the state is hard to tell. An aggressive “enclavement” strategy that criminalises Islamism and locks out Islamists is certain to prove hugely destabilising. It risks driving Islamists underground and is bound to incubate the same toxic type of militancy and violence familiar in many parts of the Muslim world.

Sudan’s best hope to achieve a viable and sustainable transition lies in a policy of accommodation that is genuinely inclusive. Islamist parties are predominantly moderate, and including them in the tent has the potential to lock them into the broader reform process, to temper their politics and to progressively isolate the more militant groups.

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