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Unpacking the Supreme Court’s decision on the second election petition: Were standards lowered?

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Unpacking the Supreme Court’s decision on the second election petition: Were standards lowered?
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The edifice of elections is crumbling in Kenya. As internal divisions eat away at the Independent Electoral and Boundaries Commission’s shiny surface, taking down several of the IEBC’s leaders, a softer, murkier layer of corruption scandals, mismanagement and political bias lies exposed. It is tempting to try and prop up what is left of the Commission, but the Kenyan electoral crisis runs much deeper than the IEBC. Indeed, weaknesses in the very foundation of the country’s electoral theory and system threaten to bring down far more than Kenya’s electoral body.

Nowhere is this more apparent than in the Supreme Court’s judgment of the November 2017 presidential petition. This judgment – in which the Court ruled against the petitioners and upheld the conduct and result of the 26th October election – addressed several issues at the core of electoral theory and law in Kenya: universal suffrage, voter registration, violence, illegalities and irregularities and the independence of the IEBC. It was a chance to cement gains made in September, when the Court ruled that opaque irregularities and a series of illegal actions had tainted the credibility of the entire election process. Two months after that landmark decision, however, the Court took surprising positions on these fundamental issues. Its opinions, which were largely characterised by a startlingly low standard for adherence to the spirit of the law, now threaten the stability of the foundation of electoral processes in Kenya.

It was a chance to cement gains made in September, when the Court ruled that opaque irregularities and a series of illegal actions had tainted the credibility of the entire election process. Two months after that landmark decision, however, the Court took surprising positions on these fundamental issues.

This article examines the Court’s position on universal suffrage. Future analyses will cover the judgment’s implications on voter registration, election-related violence, illegalities and irregularities and the independence of the IEBC.

Universal suffrage

Universal suffrage, enshrined in the Universal Declaration of Human Rights, can be thought of as the great equaliser in representative democracies. It empowers each and every citizen with the right and authority to elect and/or eliminate political representatives to and from office. Universal suffrage is thus the bedrock of credible elections.

In Kenya, it is a political right, laid out in Article 38 (2) and (3) of the Constitution:

(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—

(a) any elective public body or office established under this Constitution; or

(b) any office holder of any political party of which the citizen is a member.

(3) Every adult citizen has the right, without unreasonable restrictions —

(a) to be registered as a voter;

(b) to vote by secret ballot in any election or referendum; and

(c) to be a candidate for public office, or office within a political party of which they are a member and, if elected, to hold office.

The October 26th election, marked by a National Super Alliance (NASA)-led boycott and months of widespread intimidation and violence, was perhaps the ultimate test of Kenyan institutions’ commitment to universal suffrage. When faced with multiple and serious challenges that threatened the country’s peace and stability, how far was Kenya willing to go to promote and protect its citizens’ right to vote?

The IEBC’s eventual decision to completely cancel elections in the violence-affected areas affected the voting rights of approximately nine percent of the country’s registered voters.

In its Supreme Court petition challenging the validity of the October election, the Kura Yangu Sauti Yangu (KYSY) civil society coalition decried the Kenyan state’s failure to meet constitutional standards of universal suffrage. Specifically, KYSY castigated the IEBC, arguing that its decision to cancel elections in 27 constituencies contravened this “fundamental principle of the ballot”. If every citizen did not have an equally fair opportunity to cast a ballot, was universal suffrage upheld?

In its judgment, the Supreme Court acknowledged and reaffirmed the value of universal suffrage and the responsibility of duty bearers to ensure that it is fully realised. In fact, the Court cited numerous cases from around the world, emphasising the centrality and critical significance of not just the law but also of its implementation, writing that the practical administration of an election must give life to the law.

From Kenya, the judgment cited a 2014 Supreme Court case:

The overriding objective of the Elections Act is to functionalise and promote the right to vote. This requires a broad and liberal interpretation of the Act, so as to provide citizens with every opportunity to vote…

The Court also referred to two South African judgments:

The Constitution effectively confers the right to vote for legislative bodies at all levels of government…But the mere existence of the right to vote without proper arrangements for its effective exercise does nothing for a democracy; it is both empty and useless.

and

The right to vote by its very nature imposes positive obligations upon the legislature and the executive…this right which is fundamental to democracy requires proper arrangements to be made for its effective exercise. This is the task of the legislature and the executive which have the responsibility of providing the legal framework, and the infrastructure and resources necessary for the holding of free and fair elections.

Lowering of standards in the October election

There was no question that the October election was controversial and violent, marked by widespread intimidation, threats and attacks. In fact, in many NASA strongholds, citizens were faced with closed polling stations, barricaded roads and brutal police-citizen violence. In some areas, IEBC officials did not report to polling stations at all. The IEBC’s eventual decision to completely cancel elections in the violence-affected areas affected the voting rights of approximately nine percent of the country’s registered voters.

It was thus surprising that the Court, in its consideration of the arguments, ruled that:

neither the State nor IEBC or any other State Organ failed to fulfill its duty to respect and guarantee the right to vote. To the contrary, the evidence adduced indicates that the State (particularly the Police and the Ministry of Interior and Co-ordination of National Government) took preventative action to safeguard the safety of election officials, voters, election material and infrastructure.

The Court’s decision rested largely on a series of communications between the IEBC and security forces before the elections. Indeed, the Court praised the IEBC’s and other institutions’ efforts to prepare for a difficult electoral environment. While it is clear that the IEBC did make an effort to ensure that it could safely proceed with its work, it is unclear how much the Commission and the police force actually did on Election Day to protect people’s right to access polling stations and to cast ballots.

A police force truly committed to protecting people’s right to vote may have, for instance, set up safe corridors for voters who did not wish to boycott the election. Police and other security forces could have provided special protection to IEBC officers in volatile areas and could have made arrangements to safeguard the environments around particularly problematic polling stations. Surely, protecting universal suffrage requires more than preventative plans; it also requires that those with power approach their jobs with a sense of active service to people whose rights may be threatened.

This ruling, which deemed preventative action to have been sufficient for the protection of universal suffrage, sets an extremely low standard. Given the Court’s acknowledgment of the importance of proactive implementation of the law, it is surprising that it did not take state institutions to task for their clear failure to develop innovative solutions and interventions.

Even if it was the case that many NASA supporters chose to stay away from the polls, in the interest of universal suffrage and to demonstrate its commitment to all voters, shouldn’t the IEBC and police have prioritised facilitation of voting for those who wanted to vote in these areas?

When it became clear that violence was preventing voting in certain constituencies, the IEBC was quick to decide that it would simply cancel elections in those constituencies. There was little, if any, public discussion about how to address the rights of people in these violence-affected areas that may have wished to cast their ballots. This approach seems to have rested on the assumption that everyone in areas that have traditionally been NASA strongholds chose to participate in violence and/or elected not to vote. Such assumptions are elementary, revealing a frighteningly superficial understanding of Kenya’s political environment. They also demonstrate a willingness to apply the law unequally, thereby disenfranchising and blatantly ignoring a portion of society.

The law allows the IEBC to cancel elections in certain areas if it is clear that the returns from those areas would not impact the final result. Nonetheless, it is worth considering the message this decision sends to voters. Even if it was the case that many NASA supporters chose to stay away from the polls, in the interest of universal suffrage and to demonstrate its commitment to all voters, shouldn’t the IEBC and police have prioritised facilitation of voting for those who wanted to vote in these areas?

In its judgment, the Court did not answer this central question. Instead, it skirted the point entirely in favour of laying blame. In fact, the Court said that since there was clear evidence that the IEBC and other State institutions took preventative action to try and ensure the safety of the IEBC staff and election materials, the blame for an environment that prevented voters from casting their ballots lay with “unidentified private citizens and political actors”.

Unfortunately, the Court’s determination seems to miss the point. The relevant issue is not the identity of the party/parties responsible for the violence; it is whether or not voters suffered “unreasonable restrictions” as they attempted to exercise their right to vote. Given that even the IEBC admitted that, despite its attempts to secure polling stations, some voters were unable to vote, it is clear that certain voters did indeed endure unreasonable restrictions on their franchise.

It is time for a much more progressive outlook on and approach to universal suffrage in Kenya.

It is time for a much more progressive outlook on and approach to universal suffrage in Kenya. The State must, of course, be prepared for possible challenges and so a response plan is necessary. However, State officers whose jobs include protecting and promoting universal suffrage must be more than responsive; they must integrate constitutional standards of public service into their every day jobs, especially around elections. Interventions that go beyond containing disturbances and violence to actively facilitating voting among those participating in elections are essential to furthering this most fundamental and sacred right.

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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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Rafael Marques de Morais: “For Press Freedom, I Have Had to Fight to Free the Angolan People from Fear”

Interview of Rafael Marques de Morais, prominent political activist, winner of numerous journalistic prizes and awards, and founder of Maka Angola, an anti-corruption watchdog focusing on social injustice in Angola.

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Rafael Marques de Morais: “For Press Freedom, I Have Had to Fight to Free the Angolan People from Fear”
Rafael Marques de Morais
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Rafael Marques de Morais has something that defines his whole life: the Civil Courage Prize, which recognises his “steadfast resistance to evil at great personal risk”. Rafael is a journalist and political activist from Angola, fighting government corruption through his online watchdog Maka Angola and the Makaleaks whistleblower platform.

To understand the world of corruption in which Marques lives, he tells us about his last investigation: “A former provincial governor diverted the funds to build schools and a hospital in a rather depressed community, and instead built his own private luxury lodge to welcome foreign hunters to hunt lions and elephants”.

Between 1999 and 2002, Marques de Morais wrote a serie of articles about the diamond trade which gave birth to the book “Blood Diamonds: Corruption and Torture in Angola”According to the Wikipedia, the articles “described the killing and terrorizing of villagers by private security companies and Angolan military officials in the name of protecting mining operations”. In November 2011 the journalist issued a criminal complaint accusing nine Angolan generals of crimes against humanity in connection with diamond mining. This is Marques style. His fight is against fear: “For there to be press freedom, people must speak freely, without fear. So, I have had to fight to help free the Angolan people from the shackles of fear as well. Otherwise, journalism is like building a sand castle near a high tide”.

“On my first trial, in 2000, the two female assistant judges came to whisper to my ear that they were praying for me”

This means becoming an activist: “I have forged my skills under a dictatorship, and there was no way I could just do journalism. I have had to defend and fight for the very space to fulfill my duties as a professional and as a citizen”. Now, he says, we see even in the United States that “many media outlets and journalists are getting bolder, and being activists, as President Trump accuses them of being the “enemies of the people”.

Marques de Morais is proud to have never fought alone: “On my first trial, in 2000, the two female assistant judges came to whisper to my ear that they were praying for me, and wished me Godspeed strength”. He had been left with no lawyer, no witness, in a trial held in camera for calling the President Dos Santos corrupt and a dictator. “But I was not alone, I had the two assistant judges giving me strength. It is the first time I share this story”, he states.

Author: Barbican C. Alex Brenner

Marques doesn’t remember how many times he’s been in prison: “I lost count. The longest I stayed in prison was for 43 or 44 days, but I have been briefly detained many times”. Once, he was arrested while going to buy tomatoes for a salad: “I saw a Swiss human rights researcher being chased by some militias. I stopped to help her, and then I ended up at the police station with my tomatoes in the car”, he says.

Another time, a friend asked him to accompany him to buy fish, early in the morning. Without them knowing it, the police had destroyed tens of fishermen’s huts and houses and forcibly removed the people and dumped them out of the city: “Needless to say, I was blamed as the agitator by the police and briefly held”, Marques asserts.

In 2013, he went to cover the trial of young protesters. He was interviewing them outside the court when “54 special police forces besieged us with machine guns and all the anti-riot gear, and an armored car. We were taken to the Rapid Intervention Police were some of us were tortured and taunted with death threats”. All the action was filmed by a camerawoman because, according Marques, “the regime’s hatred for me inspired them to film my beating”.

He has “a lot of kasfkaesque stories to write about one day, including ambushes”, but he has never surrendered. In 2009 he launched Maka Angola to publish the material he had in excess for his dissertation at Oxford University on “The Transparency of Looting” in Angola. “I wanted to share all the information I had gathered”, he says, as the great journalist he is.

Qurium has been hosting Maka Angola and Maka Leaks since 2016. Maka Angola had received many cyberattacks since he joined Virtualroad, by a colleague’s recommendation: “Every since I have had a peace of mind, for it has become a great line of defence against cyber attacks and I have not been bothered by a single attack since Virtualroad became Makaangola’s host”, he says.

Does Marques de Morais think the Internet is a good or a bad tool for journalists? “It’s only a tool, it all depends on the strength of the journalists who use it for good journalism, vis-à-vis the armies of trolls at the service of authoritarian regimes, and the mushrooming industry of online disinformation”. We’re sure which side is he on.

In 2018 the International Press Institute awarded Rafael Marques de Morais with the World Press Freedom Hero prize

 

This article was originally published by Qurium. Read the original article.

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The Truth About the ‘Single Source of Truth About Kenyans’: The National Digital Registry System, Collateral Mysteries and the Safaricom Monopoly

That the Kenyan state has been strengthened by the rise of Safaricom is probably most evident in the doubling of the population of formal taxpayers in this same period. Yet, it is also clear that this relationship has defeated the NDRS’s goals for addressing the weaknesses of formal credit provision for ordinary Kenyans.

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The Truth About the ‘Single Source of Truth About Kenyans’: The National Digital Registry System, Collateral Mysteries and the Safaricom Monopoly
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Kenyans walking to work on Nairobi’s Haile Selassie Avenue on the 16th of June 2016 were shocked to find that a pile of well-worn identity cards and driver’s licences had been dumped during the night on the pavement outside the Jesus is Alive Ministries’ church. The identity cards were those that Kenyans mistakenly call the second and third generation IDs – one, dating from 1995, is laminated, and the other, issued after 2011, is printed directly onto plastic. Both types of cards were produced by Thales, a French parastatal, so they are administratively identical. On the front side, they present the card’s serial number, the holder’s identity number, full name, date of birth, sex, district of birth, place of issue, date of issue, signature, thumbprint; on the reverse are the functional categories of colonial indirect rule: district; division; location; sub-location.

None of the cards in the pile were the third-generation or digital IDs that Kenyans have been promised for a decade: the polycarbonate sheet, laser-printed with solid colour images and etched holograms containing, critically, a machine-readable chip and a full set of digital finger and iris biometrics.

In 2007, the main archives of the National Registration Bureau (issuer of ID cards) contained the scanned records of the inked fingerprints of 14 million Kenyans. In an attempt to bolster the identity card system and the integrity of the register that authenticated applications for cards, the KNCHR called for the fast-tracking of a biometric database – the Integrated Population Registration System (IPRS). In 2009, the development of that system was awarded, apparently without controversy, to a consortium from the Ukraine called EDAPS.

The third generation card was first announced publicly in 2007 in the wake of an investigation by the Kenya National Commission on Human Rights (KNCHR) into accusations of widespread corruption and discrimination in the issuing of IDs. The commission’s concerns were split evenly between the general complaint about the cash bribes officials demanded to perform basic administrative services and the more specific accusation that Somali-Kenyans were being systematically denied identity cards and their basic rights as citizens. Behind both worries lurked fears about the fragility of the laminated card, and its susceptibility to forgery. The notorious weakness of the cards had much to do with the seven-digit identity number and the vulnerability of the registry that was being used to authenticate claims for citizenship.

In 2007, the main archives of the National Registration Bureau (issuer of ID cards) contained the scanned records of the inked fingerprints of 14 million Kenyans. In an attempt to bolster the identity card system and the integrity of the register that authenticated applications for cards, the KNCHR called for the fast-tracking of a biometric database – the Integrated Population Registration System (IPRS). In 2009, the development of that system was awarded, apparently without controversy, to a consortium from the Ukraine called EDAPS.

The appointment of a contractor for the production of the third generation cards was not so simple. The 2005 Anglo Leasing scandal – where the Mwai Kibaki government was notoriously implicated in the payment of a massively inflated tender to a British shell company for printing passports – loomed in the background of the call for tender for the new identity cards. The processes were fraught and contested, especially as losing bidders could bring show-stopping appeals to the newly established Public Procurement Oversight Authority after 2007.

The call for tender for the new cards was issued in May 2009, specifying a “third generation ID Card” with the establishment of an “elaborate infrastructure supported by appropriate software modules, including installation of live data capture equipment both at the headquarters and in the field offices, personalisation centre and a centralised database production facility, complete with the necessary biometric and facial recognition features”. The government allocated $10 million to the project, and the international biometrics giants all submitted proposals. In September that same year, the whole process came to a sudden halt when NADRA, the Pakistan identification agency (who were making Kenyan passports) raised a successful protest about the decision of the tender board.

Thales continued printing the laminated cards after the tender collapsed, but in July 2011 the cabinet refused to endorse their ongoing production, and the issuing of the indispensable IDs stopped completely, prompting something of a national emergency. The Ministry of Immigration and Registration of Persons issued a second tender in 2011 but that succumbed in the same way when the French ID contractor, Imprimerie Nationale, protested its exclusion on the basis of the tender board’s sloppy paperwork. With the 2013 election looming, the ministry had little choice but to restore Thales’ contract to print the backlog of two million – rising quickly to four million – of the new plastic (not laminated but also not third generation) cards.

That was the situation, at least as far as the ID cards were concerned, when Mwende Gatabaki arrived to join the Office of the President from her job at the African Development Bank in Tunis in February 2014. Gatabaki was chosen as the architect of the new plan for identification and information-sharing – the National Digital Registry System (NDRS) – as she had extensive experience working on the networking requirements of the cumbersome Kenyan parastatals and the large donor organisations in East Africa.

Clean, complete, correct

The plan to register the entire Kenyan population “afresh” was first made public at the ConnectedKenya conference in Mombasa in April 2014. It was presented by Gatabaki, who was tasked with assembling a new government agency that would unify the different functions of birth and death registration, the registration of aliens and refugees, and the issuing of identity cards, which were all spread across the detached Departments of Civil Registration, Immigration, Refugee Affairs and the National Registration Bureau.

The Act establishing the new service had already been passed in 2011. It called for a new co-ordinating agency that would develop a unique identifier for every person, manage all issues related to citizenship and immigration, and maintain a comprehensive and accurate national population register. Gatabaki’s plan drew on the heightened public concern around national security in the wake of the September 2013 attacks on the Westgate shopping mall. It lay out a potentially revolutionary reorganisation of the entire Kenyan state around a “single source of truth”. The new database would link together existing and new registries of population, land holdings, companies and moveable assets. Gatabaki argued that the new database and registrations would be significantly cheaper than the cost of upgrading existing but separate projects of registration and identification underway in the separate departments. To do all of this required a break from the existing forms of paper registration and a new set of purely digital biometrics for every person in the country.

Gatabaki’s emphasis on a compulsory national round of digital registrations was controversial, to put it mildly, because many Kenyans – especially those supporting the CORD coalition that was kept from power – were still furious about the biometric debacle staged during the previous year’s national elections when the biometric voter identification kits supplied by the South African firm, Face Technologies, failed.

This initial presentation made no mention of a new digital ID card, but the following day the CEO of the state ICT Authority explained that the government was preparing to spend nearly $100 million on the new database and that the new ID cards would have a chip or magnetic strip that would allow police officers on patrol to confirm authenticity.

 

Gatabaki’s emphasis on a compulsory national round of digital registrations was controversial, to put it mildly, because many Kenyans – especially those supporting the CORD coalition that was kept from power – were still furious about the biometric debacle staged during the previous year’s national elections when the biometric voter identification kits supplied by the South African firm, Face Technologies, failed. The official enquiry into this debacle, accusations of corruption and other ongoing controversies over the enormous cost and licensing of the biometric kit dominated public debate until the end of 2015. In Kenya, biometric registration is the main arena of a bitter struggle over state power, and it was hardly surprising that the opposition leaders immediately responded to the move to register all afresh by claiming that it was a scheme to rig the next elections.

Political mistrust was not the only serious problem, however; over the previous decade, the procurement processes for the long-promised identity card had repeatedly collapsed into a mess of conflicting corruption allegations.

Indigenising capital

Gatabaki’s project aimed, chiefly, at replacing the unreliable and limited paper-based population register with a digital biometric database. The new biometric system would have established a single official identity for all adults in Kenya for the first time and it would have allowed real-time, remote biometric authentication. But it was also motivated by an effort to create a new kind of property by registering collateral in moveable assets, such as vehicles, farm animals and companies.

Meanwhile, the EDAPS consortium had been busy working to build the IPRS, linking together the main repositories of identification and citizenship status. EDAPS first built the IPRS connections between the National Registration Bureau’s ID card database and the Ministry for Immigration and Registration of Persons (MIRP) passport and aliens registries. In 2010 they began to incorporate new data from the birth and death registries managed by the Department of Civil Registration. The following year, 2011, they built automated two-way links between the IPRS and the databases maintained by the two newly established credit reference bureaus (CRBs).

This relationship allowed the CRBs to do real time confirmation of the identity of the new applicants for credit (using automated queries against the linked civil registration and ID card records). Much more importantly for the broader political economy in Kenya, and the fate of the NDRS, it also pushed blacklisting data into the IPRS itself. The listing of defaults inside the state’s IPRS – what the Credit Information Sharing Association of Kenya (CISKenya) described as negative information – provided a simple, effective and real time sorting and coercive tool for the new mobile credit providers looking for instant decision-making systems. This simple link had the effect of separating Safaricom, with its troves of data on millions of users’ spending behaviour, from the broader alliance of formal lenders who were looking to build database profiles that would differentiate customers based on sharing positive (payments) and negative (defaults) information.

Safaricom – the monopolistic telecommunications firm that has created the globally distinctive system of mobile money known as M-Pesa – was able to develop simple forms of virtual reputational collateral using its own automated assessment systems and its own identification and authentication processes. The state’s existing population register was sufficient for its needs, where the banks’ credit information sharing (CIS) processes – with their demanding templates of data and very high errors of identification – faced continuous failures and material resistance.

The failure of the new digital identification scheme was the result of a conflict between the formal banks and Safaricom. It was also a struggle between different types of credit markets. On the one hand, the banks wanted to build credit reporting systems and new government registration arrangements that would allow individuals and firms to formalise non-fixed assets, such as vehicles and livestock, which would then act as new forms of collateral for further borrowing. The advocates of these assets registers and of the banks’ universal credit reporting systems were opposed by Safaricom (in practice more than in public) and eventually by the leaders of the Kenyan state, who championed a simple and effective system for delivering unsecured, high-interest micro-loans that did not require collateral registers.

As Safaricom’s monopoly status became painfully obvious after 2010, the banks’ advocates increasingly argued – and with good reason – that the most serious weakness in the Kenyan economy lay in the difficulties that small businesses faced in securing credit.

The advocates of the biometric plan justified it by appealing to the need for certain and secure identification, for stronger national security (and policing) and better tax coverage and recovery, but what distinguished it from the already existing plans for population registration was the effort to build a new kind of asset register – a database describing real, not informational, collateral assets. The National Digital Registry System plan proposed a joined-up architecture of state databases that brought the management of private collateral into the core of the state’s business. Aimed at the interests that the established banks had in the development of reliable, accurate and complete credit histories, it was also a radical effort to address the informational void that surrounds property on the African continent.

As Safaricom’s monopoly status became painfully obvious after 2010, the banks’ advocates increasingly argued – and with good reason – that the most serious weakness in the Kenyan economy lay in the difficulties that small businesses faced in securing credit. Policy makers argued that thousands of these small firms possessed moveable assets – buildings, vehicles, equipment, products, animals – that could provide secure collateral for formal credit when provided with the right administrative and information processing tools. This was the idea behind the NDRS – a centralised data exchange that would make information from the discrete registries (for example, of companies and vehicles) available to lenders. At the same time, this kind of centralised data hub would offer non-bank lenders a quid pro quo for sharing information about their customers’ servicing of existing loans. This idea – that the NDRS would, finally, make it easy for financial institutions to appraise borrowers – was at the heart of the Gatabaki proposal. “A central repository of personal and corporate information will facilitate banks in their credit appraisal,” as the Central Bank governor explained in endorsing the project in October 2014, “This should not only ease access to credit but also reduce costs of credit, given the lower search costs.”

In fact, of course, that integration never happened. Instead, the Commercial Bank of Africa (CBA), in alliance with Safaricom, developed its own separate scoring mechanism that drew on data from Safaricom’s transaction database specifically to identify borrowers who did not meet the initial basic criteria that were derived from Safaricom airtime purchases. The resulting scorecard worked only too well and – combined with the basic identification and simple blacklisting supported by the IPRS – it meant that CBA and Safaricom could issue M-Shwari loans without any need to look up or report data to the credit bureaus; the credit information templates of credit sharing were too cumbersome and too slow and would have ruined the rapid decision-making that is one of the attractions of Safaricom’s mobile lending.

From the outset, the CBA, like many of the other non-bank credit providers in Kenya, used credit information sharing only as a last resort in the effort to recover outstanding loans. After 120 days of non-payment, the bank reported delinquent M-Shwari debtors to the credit bureaus. These records, almost all of them negative reports, rapidly inflated the population covered by the CRBs from 1 million people in 2014 to 4 million the following year. This expansion was the exact opposite of the reputational collateral that the bankers had long used to justify credit sharing; it measured, instead, the dramatically augmented pool of those denied formal credit at any cost.

By the time that Gatabaki announced the NDRS project in April 2014, the effort to create a technological platform to foster reputational collateral for ordinary Kenyans had effectively failed. Over the following year, the balance of informational power shifted decisively towards Safaricom and CBA. Few people made the argument publicly, but the telecom giant had clearly come to exercise monopoly control over the heights of the Kenyan economy. Their interest in micro-loans – while profitable and useful to borrowers – did little to make formal credit available to individuals or companies. The CIS system was working only as a blacklist available to Safaricom on the IPRS platform and, far from working as a solution to the problem of asymmetrical information for other lenders, it simply encouraged local banks to deny ordinary Kenyans credit.

The Safaricom monopoly

Gatabaki’s scheme faced resistance from within the state, not least because the World Bank’s Kenya Transparency Communications Infrastructure Project (KTCIP) had been pouring money into the renewal of the old IPRS. As the NDRS was being debated, the Bank was busy upgrading the IPRS, supporting digitisation of the existing land and company registries, strengthening the administration of the fifty newly devolved county centres of government, and connecting all of the divisions of the state to an accounting database. The KTCIP overhaul reduced some of the pressure for repair of the existing state information systems, but it does not account for the collapse of Gatabaki’s scheme, which would in fact have been bolstered by the same processes. The real reason lay in the ascendancy of the highly simplified information systems controlled by Safaricom, the explosive growth of M-Shwari mobile loans offered by the CBA and the decline of the political influence of the other established banks.

During the year that the NDRS was being debated, Safaricom converted its M-Pesa monopoly over pre-paid customers and financial transactions into the wildly successful M-Shwari microcredit product. In the process, it transformed the Commercial Bank of Africa – substantially owned by the Kenyatta family – from a bespoke bank providing services to the elite to one of the most profitable banks in the world…

Two financial relationships were key to this influence. The first was the joint ownership of Safaricom between the British telecorp Vodafone and the Kenyan state, which gave the state a double-dipping interest in the company’s enormous profits: first as shareholder and second as tax collector. By 2017 the state was earning Sh60 billion in tax and licence fees, and an additional Sh12 billion in dividends – a total that meant a tenth of the revenues raised by the state came from a single firm.

During the year that the NDRS was being debated, Safaricom converted its M-Pesa monopoly over pre-paid customers and financial transactions into the wildly successful M-Shwari microcredit product. In the process, it transformed the Commercial Bank of Africa – substantially owned by the Kenyatta family – from a bespoke bank providing services to the elite to one of the most profitable banks in the world, offering credit and banking facilities to the majority of adult Kenyans – most of whom were very poor. During 2016, 35 million Kenyans used mobile banking to conduct 1.5 billion transactions for a combined value of Sh3.5 trillion. The number of wretchedly but newly employed field agents servicing this finance industry rose by 10 per cent to 165,000 individuals in the same year. And Safaricom exercises a textbook monopoly over the field, controlling 65 per cent of the SIM card subscriptions and 84 per cent of the mobile banking transactions.

By the end of 2016, M-Shwari was an even purer monopoly of the mobile credit market than its M-Pesa parent. It was being used by 16 million customers to take out 64 million small loans with a total value of $1.4 billion. One in five Kenyans were borrowing from M-Swari in a normal month. A highly simplified, stripped-down informational architecture that exploited the very limited capabilities of the Simcard Toolkit and the IPRS (the opposite of the integrated, interoperable and real-time biometric system proposed for the NDRS) was key to the explosive successs of the Safaricom-CBA product.

In contrast with the NDRS, the M-Shwari loans imposed no new identification process on borrowers. For loans of less than sh2500, M-Shwari relied only on the original M-Pesa paperwork – sight of the national ID and a completed application form – that each customer is supposed to have submitted to load the M-Pesa menu and the IPRS blacklist. This frictionless simplicity – turning ignorance and convenience into effective instruments of profit – is now internationally called the “tier-based Know-Your-Customer” procedure. It is intrinsically the opposite of the “clean, complete, correct and secure” registration process that Gatabaki envisaged for the NDRS. It is important to note that it is an instrument of monopoly power because Safaricom can control its risk exposure by relying on the data it owns about users’ purchases of airtime and their relationships with other users. That information – and possible histories of impersonation and PIN-swopping – is not available to the firms’ competitors. It is only in the final decision of blacklisting borrowers that Safaricom reports unpaid M-Shwari debts to the CRBs, effectively blocking those borrowers from future credit and their competitors’ access to future customers. In the short, in the three-year life of M-Shwari, the number of Kenyans – most without any prior connection with the formal banking system – added to the blacklist shared between the CIS and the IPRS has reached three million people (a tenth of the adult population). And nearly 400,000 of those blacklisted have been denied access to future credit for failing to settle debts of less than sh200.

In the years since the demise of the NDRS, Safaricom’s relationship with the Kenyan state has only grown more intimate. The company was an immediate beneficiary of the 4 per cent cap on interest which the Kenyan Central Bank imposed on formal lenders in September 2016 – not least because CBA successfully defended the argument that the 7.5 per cent monthly fee on M-Shwari was an administrative charge and not interest. (The effective interest rate offered on M-Shwari loans approaches 140 per cent over a year of borrowing, but this rate – ten times the legal limit imposed on the formal banks – was still much lower than the returns demanded by informal money lenders.) Safaricom has taken on many of the trophy projects pursued by the Kenyan state since, including a national CCTV surveillance network in 2016, and an e-citizenship project that takes up many of the goals of online convenience that motivated the NDRS.

That the Kenyan state has been strengthened by the rise of Safaricom is probably most evident in the doubling of the population of formal taxpayers in this same period. Yet, it is also clear that this relationship has defeated the NDRS’s goals for addressing the weaknesses of formal credit provision for ordinary Kenyans, especially for firms and for individuals looking to invest relatively large amounts in productive investments. In place of the revolutionary, panoptic over-reach of Gatabaki’s National Digital Registry System, Kenyans have the simplicity and efficiency of M-Shwari. In comparison with the goals of full credit reporting and asset registries, this looks very much like the old pattern of skeletal registration and brutal administration that Africans have long had to endure.

 

Keith Breckenridge was also published in The Journal of African Studies on the same: “Breckenridge. K. (2019), The failure of the ‘single source of truth about Kenyans’: The NDRS, collateral mysteries and the Safaricom monopoly: Journal of African Studies, Vol. 78 Issue 1,  pp 91-111”. It can be accessed here

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The Chink in Raila’s Armour: Why ODM Is Losing Ground in Its Strongholds

Beyond the biblical analogies, evangelical Christian rhetoric, and the denials of ODM party barons, what does Ochieng’s victory mean? What does it tell us about Luo politics? What hopes does it hold, especially for those from the counties of Siaya, Homa Bay, Migori and Kisumu, who are disgruntled with ODM, especially the party nominations, and increasingly see Raila Odinga’s dominance in Luo politics as a stranglehold on regional democracy? What about those who yearn either for a change or a revolution in the ODM strongholds?

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The Chink in Raila’s Armour: Why ODM Is Losing Ground in Its Strongholds
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To some observers, it was a victory that recalls the Biblical David versus Goliath encounter, which will be told long after the “stone” that fell the giant Orange Democratic Party’s political machinery and its candidate in the 5 April Ugenya by-election has been buried deep in the fecund soils of Ugenya. For others, it was the epic duel, which Senator James Orengo – a living legend in Kenya and in Ugenya’s opposition politics – like Hamlet without the Prince, lost spectacularly to David Ochieng, a political neophyte.

In the 5 April Ugenya constituency by-election, a parliamentary candidate called David Ochieng’ of the little-known Movement for Democracy and Growth (MDG) took on a giant, the Orange Democratic Party (ODM), and floored its candidate, Chris Karan. This was not a first in the colorful history of Ugenya, a constituency whose politics has partly been defined by the political rivalries between in-laws James Orengo and his brother-in-law, Stephen Ondiek, who between them, represented Ugenya constituency for 33 years between 1980 to 2013.

Although there is no love lost between Orengo and Ochieng, Ochieng’s victory recalls James Orengo’s Nyatieng’s’ (the grinding-stone) victory in the 1980 Ugenya constituency by-election against Mathews Ogutu, a pro-establishment and a Jomo Kenyatta era minister for local government. Just like Orengo’s victory in 1980 as a Jaramogi Odinga colyte was a slap in the face of pro-establishment politics of acquiescence in the face of betrayals of independence ideals and KANU’s suffocating post-independence one-party state, Ochieng’s, too, is a rejection of Raila Odinga’s pro-status quo politics, which in the face of suffocating party politics demands acquiescence with politics of incompetence or ineptitude at the local level.

The victory was too sweet to be savoured only by Ochieng’ and his constituents. By saying that the by-election was a Raila versus Ruto contest and casting it as a proxy battle for Kenya’s soul…the ODM party barons had invited the dissident United Republican Party (URP) wing of the ruling Jubilee Party to the Ugenya party. Or so, it seems.

Ochieng’s was a sweet victory, a crowning of a successful and drawn out election petition against the Independent Electoral and Boundaries Commission (IEBC)’s declaration of Chris Karan as the victor of the 2017 Ugenya parliamentary election, in which he handed ODM, especially his Ugenya nemesis, Senator James Orengo, a humiliating defeat.

The victory was too sweet to be savoured only by Ochieng’ and his constituents. By saying that the by-election was a Raila versus Ruto contest and casting it as a proxy battle for Kenya’s soul – where a vote cast for Chris Karan is a vote for Raila Odinga, and a vote cast for David is a vote for William Ruto – the ODM party barons had invited the dissident United Republican Party (URP) wing of the ruling Jubilee Party to the Ugenya party. Or so, it seems.

As if on cue, the “hustler’s” nation, for whom everything ni kujipanga without compunction, showed up for the party, honouring ODM’s ill-thought, and perhaps proxy invitation, to a propaganda-fest. William Ruto, Kenya’s Deputy President, who craves an earthly kingdom, took a celestial leap for it, and tweeted, “Jameni wacheni MUNGU aitwe MUNGU. The hustler nation has spoken, the people have decided”, thereby quickly claiming David’s victory for the “hustler” Christian nation and milking it for its propaganda value: Odinga’s loss is a Ruto’s or self-declared hustler-in-chief’s gain.

Ostensibly, Ochieng’s victory now symbolised the miraculous ways of God, foretelling the coming victory of the kingdom of the hustler-in-chief over his nemesis Raila Odinga, the longed-for Godless earthly kingdom of Kenyans who seldom give a damn about justice or ethics in pursuit of power or wealth.

Ochieng’s MGD victory was a godsend. Irresistible. And they grabbed it, perhaps with the ease with which billions of shillings in dollar denominations is nowadays spirited out of Kenya’s public coffers to a few individual’s secret accounts abroad or safe boxes in local banks under the Jubilee government’s watch.

Senator Susan Kihika, a Ruto disciple, took a less optimistic but a more earthly view of Ochieng’s victory. She tweeted, “Is ODM’s loss in Ugenya & Embakasi South an indication of changing times? Ugenya being ODM stronghold begs the question, is the electorate finally ready to defy dictatorship vote & independently? Perhaps. Interesting times ahead. Kitaeleweka sooner than later!”

For some of the diehard ODM supporters, the twin parliamentary electoral loss is symptomatic of ODM’s diseased body politic. “It’s suffering a T.B. Not the dreadful respiratory disease, tuberculosis, but the equally devastating “Tugni gi Bagni,” or “conflict and confusion”…

“Not a big deal,” Raila Odinga said repeatedly, and rather strenuously, for the “just a drop in the ocean” loss of two parliamentary seats in a week when the twin ODM loss, especially the Ugenya by-election, was trending in the major call-ins in Dholuo breakfast and late night radio broadcasts.

For some of the diehard ODM supporters, the twin parliamentary electoral loss is symptomatic of ODM’s diseased body politic. “It’s suffering a T.B. Not the dreadful respiratory disease, tuberculosis, but the equally devastating “Tugni gi Bagni,” or “conflict and confusion,” for a party that has had a relative clear political vision,” said a disillusioned ODM supporter in a call-in breakfast radio show.

Still, others opined, the victory of these candidates raises several questions that the party ought to answer: why do sitting ODM MPs, who ably discharge their parliamentary responsibilities or good candidates seeking an ODM ticket lose to those said to be the party-anointed but lacklustre performers? Is it the region’s six-piece voting pattern or how the six-pieces of the ODM leaders is put together? Is it because, as some callers opined, “party ni gi wegi” (the party has its owners)? And therefore, have the party nominations, not just the ODM’s, but also other Raila Odinga-led parties’ nominations, been a charade? Does the party respect the wishes and interests of the majority? “Certificate e omo malo.” (Has the party been imposing candidates on the voters?) Is it because we’ve been electing charlatans who claim “wadhi konyo Jakom goyo lweny?” (Is it those who claim they are going to help Raila Odinga fight a war?)

Beyond the biblical analogies, evangelical Christian rhetoric, and the denials of ODM party barons, what does Ochieng’s victory mean? What does it tell us about Luo politics? What hopes does it hold, especially for those from the counties of Siaya, Homa Bay, Migori and Kisumu, who are disgruntled with ODM, especially the party nominations, and increasingly see Raila Odinga’s dominance in Luo politics as a stranglehold on regional democracy? What about those who yearn either for a change or a revolution in the ODM strongholds?

Unlike ODM power barons’ denials, the candid and passionate debates on Ochieng’s victory and ODM’s poor performance in the two by-elections throws up more than Ochieng’s winning formula or ODM’s ways of losing an election, which, for some rank and file members of the party, shouldn’t be waved aside.

Many ODM supporters who called various Dholuo radio stations last week blamed Senator James Orengo for the loss of the Ugenya seat to the MDG party. They put it down to the rivalry between Orengo and Opiyo Wandayi, said to be driven by competing ambitions for the Siaya County’s 2022 gubernatorial election. ODM had wrongly pitched the contest as a national issue, with little local touch, and favoured big roadshow events – which entertain the youth, but which scarcely educate the electorate – and counterproductive threats by Siaya governor, Amoth Rasanga, to punish his Ugenya constituents if they voted for Ochieng’. Yet Ochieng’ has a better development record in Ugenya than the Siaya County government, and carried out a more effective door-to-door campaign attuned to the hopes of Ugenya voters, especially women.

Ochieng is a young and ambitious politician who first came to parliament as an ODM Member of Parliament. His victory points to a deeper crisis gnawing at the heart of the Orange Democratic Movement. ODM not only failed to live up to its name and to its political ideals, but is suffered from a crisis of vision, as some callers pointed out. It also stalled intra-party, inter-generational succession, which is now simmering and might come to the boil before or by 2022.

Ochieng’s victory, like that of the other “independents”, suggests that ODM or Raila Odinga are not invincible. However, winning an election is still an uphill task. You’ve got to factor Raila Odinga into your winning formula or circumvent it in your campaigns.

However, listening to ODM supporters who are still smarting from the party’s loss of Ugenya constituency does suggest that Ochieng’s victory is significant but that it is no more significant than the past victories of “independents” in the current Luo politics. Ochieng joins the league of politicians, such as Olago Aluoch, the MP for Kisumu West on a Ford Kenya ticket, Shakeel Shabbir of Kisumu Town East, who ran as independent in the 2017 general election, and even of the disgraced Okoth Obado, now an ODM governor, who was elected on a PDP ticket in 2013.

Ochieng’s victory, like that of the other “independents”, suggests that ODM or Raila Odinga are not invincible. However, winning an election is still an uphill task. You’ve got to factor Raila Odinga into your winning formula or circumvent it in your campaigns. Strategically, you must be an ally or be seen to be an ally of Raila Odinga’s cause. And as some callers said, those who have successfully run against the ODM wave, such as Olago Aluoch of Kisumu Town West or Shakeel Shabbir, have simultaneously avoided casting their quest for elective office as contests between them and Raila Odinga. They ran on a Raila-zone friendly party or no political party, and thoroughly localised the parliamentary contest while pledging loyalty to Raila’s cause or claiming him as their undisputed leader or leader of the Luo community.

Shakeel Shabbir, popularly known as “Onyango woun Mogo” (Onyango, the owner of maize flour), like Ochieng, bolted out of the ODM in 2017, but ran successfully as an independent. Upon winning, he said, “I still share ODM ideals and want to assure my people that I will stand with the party and leader Raila Odinga.”

Similarly, speaking to the Star after winning, Ochieng’ said, “I avoided the media like the plague since they were going to hype it as a war between me and Raila,” and added, “I have no issue with Raila. In fact, we kept talking when I was in court. There is no bad blood between him and myself. I respect him. I support the handshake, which is the best thing ever to happen to this country.”

Salim Odeny, a suave and eloquent ODM ideologue with a priestly mastery of the Bible, an ecumenical mastery of many Christian denominational hymns, liturgy, and rituals, and a mastery of dead-pan Dholuo put-downs or sexist insults, said that the ODM bigwigs in charge of the Chris Karan campaigns didn’t set the Raila trap well. He says that ODM lost the Ugenya seat, not only because the infighting within the Senator James Orengo-led campaign team, but also because they didn’t frame the contest in terms that resonates with the Ugenya electorate. “They should have asked, who does Uhuru Kenyatta deal with when he wants to deal with a Luo leader, a party leader called Raila Odinga of ODM or a party leader called David Ochieng’ of MDG?” said Odeny. The contest should have been framed as the battle between Raila and Ochieng’ for the leadership of the Luos – who of the two embodies the community’s fears and hopes? – not as a Raila versus Ruto contest.

Ochieng’ saw the trap and lifted the safety hatch. He simply asked his constituents, “Ka udhi ma ok uneno Raila e debe, gone David Ochieng’,” (If you go to the polling booth, and you don’t find Raila’s name on the ballot, then vote for David Ochieng), some callers pointed out. Raila’s absences, literary and figuratively, also worked in Ochieng’s favour.

Citing African Union engagements, Raila made only a single appearance at a funeral in Ugenya during the campaign period. Since the handshake, what he embodies or stands for, the larger-than-life cause cryptically referred to as “lweny” (the war), and the political cause that he has embodied in Luo politics (which gives him a free hand to choose who’s a loyal lieutenant and who’s not) has become foggy at best.

What’s more, “the handshake” has blunted the sharp edge of the “mole” label, the traitor charge, which can cut down one’s political career short, especially for Luo politicians who work with the establishment, either in times of opposition or outside the Raila Odinga umbrella, in times of co-optation.

Tactically, by framing the by-election as a local contest and conducting a door-to-door campaign, Ochieng’ outflanked the ODM bigwigs who mounted colourful roadshows and pitched the battle as a national contest between Raila Odinga and William Ruto.

In 2017, David Ochieng’, who had been dubbed a mole, bore this burden. In 2019, after the handshake, the sharp opposition-establishment distinction is blurred, and the burden has lifted off a little bit. Moreover, unlike James Orengo, who was once a cabinet minister (a minister for lands), Ochieng’ seems to have leveraged his first term pro-establishment connections and delivered collective material goods to his Ugenya constituents better than both James Orengo and the County of Government of Siaya: a medical training centre, a teachers’ training college, a technical institute, subsidised fertilizer to farmers, and a forestry school in the making.

Tactically, by framing the by-election as a local contest and conducting a door-to-door campaign, Ochieng’ outflanked the ODM bigwigs who mounted colourful roadshows and pitched the battle as a national contest between Raila Odinga and William Ruto. Backed by Ugenya professionals, he turned his first term development record as an ODM MP into an asset and bait: “I have built a TTC, and a MTC here, but the MTC College could collapse, because it offers only one course. Give me a chance to complete this project,” Ochieng, reportedly pitched.

But David Ochieng’, the ambitious rebel politician who says he eschews “politics of lies, personality cult, where you identify a figure of hate”, derides and is disdainful of Orengo’s brand of politics – what he dismissively calls “university type of politics, which no longer works for the masses” – as the kind of politics that has long reached its sell-by date and is a product the fallout that followed the ODM’s post-2013 generational succession politics in Luo politics.

Ochieng told the Star that he left ODM because “the party machinery was not taking my views. There is a lot of suspicion about me and how I work. At some point, I felt I didn’t want to go to parliament.” Moreover, “My party did not like people who can innovate or those giving views. I thought I did not want to go through that, hence, the birth of MDG,” Ochieng’ added, without mentioning the source of this suspicion.

That suspicion was borne out a the Sega Declaration in 2014. David Ochieng’, together with some youthful and freshly elected first-term members of parliament, such as Jared K’Opiyo, Silvanus Osele, Agostino Neto, Junet Mohamed, Millie Odhiambo, Ken Obura, and John Mbadi, sought to reform and re-energise the party after the loss of the 2013 presidential election and to change its leadership. But the doyens of opposition politics, such as Raila Odinga, Anyang’ Nyong’o, and Otieno Ka’jwang,’ read mischief in this move. The ODM MPs, who were party to the Sega Declaration, were viewed with suspicion as fifth columnists.

ODM power barons scattered this group, but didn’t adequately address the discontent, the injustice of the party nomination process, and the feeling of being left out of both the national party power structures and in the ODM county governments, which many youthful members of the party, including the rank and file, feel to date. Dubbed “moles,” the unrepentant signatories to the Sega Declaration faced a stiff challenge for the ODM ticket or opted for alternative political parties. Some, like John Mbadi and Junet Mohamed, beat a retreat and were rewarded with high party positions. Others, like Ken Obura and Silvanus Osele, fell by the wayside. A few, like David Ochieng, and Millie Odhiambo, retreated to their constituencies and worked hard to fortify their hold on them.

Labeled a Jubilee mole, David Ochieng’ felt it doubly, in 2017 and 2019. “There were days we could spend up to shillings 1 million in a day,” Ochieng’ told the Star, without disclosing either what he spent the money on or the total amount of money he spent to secure the seat. Clearly, one million shillings a day, even for a few days of campaigning in a rural constituency, is a little over the top, particularly, for a candidate who says his popularity rests solidly on his unmatched development record.

Ochieng’s victory reminds the ODM party, and Raila Odinga, in particular, that that until ODM embraces internal party democracy, addresses the generational succession question, and Raila unequivocally states what the party stands for, the independents…will always eat Baba’s lunch in a free and fair election.

Ochieng’s triumph over the ODM was sweet, hard-won, and crowning, but still an expensive victory. It reeks of a BUY-election. Although Ochieng says that his solid development record as an ODM member of parliament put him in good stead, he spent heavily to secure the seat, even when he avoided a “big entourage” and occasionally rode a bicycle while looking for votes.

Ochieng’s victory reminds the ODM party, and Raila Odinga, in particular, that that until ODM embraces internal party democracy, addresses the generational succession question, and Raila unequivocally states what the party stands for, the independents (who voters say are good leaders, but often fall out of favour with the ODM party barons) will always eat Baba’s lunch in a free and fair election – especially when the voters can’t tell what Raila Odinga stands for or what the political vision of ODM is since he signed a truce with the Jubilee government.

Questions arise: Is Raila still hunting, holding the leopard by the tail or has he domesticated the beast? Or is he stroking its fur, cleaning its bloodstained paws and its incisors while his core constituency, clawed or killed by the beast in the last electoral encounters, cries for justice? Does ODM fight for democracy and good government only at the national level? What about the ODM-led constituencies and the counties?

Ochieng’s victory too, is just an exception that proves the rule: the common sense that binds Raila Odinga and his die-hard political base still holds a contested sway, However, the yawning democratic deficits of the ODM party, which the ODM rank and file complain about on radio, and the ineptitudes of Raila’s lieutenants in local politics and in organising a smooth ODM generational succession, coupled with the incompetence, corruption, and nepotism of county governments, especially in Siaya, Homa Bay, and Migori counties, will ultimately claim ODM’s dominance in Luo politics.

Ochieng’s victory is good news, especially to those who find Raila’s two-decade long dominance in Luo politics too suffocating and too stifling for democratic aspirations. It reveals a chink in Raila’s amour. However, those yearning for a change or revolution in ODM have a tough task ahead. Electoral defeats, like Ugenya’s, though highly embarrassing, hardly chip at the Odingas’ dominance in Luo politics.

The twin electoral defeats, a recoil from a third, and the Wajir senatorial election reminds ODM that a coalition of widely different political dynasties, united only by a common fear of the prospects of a Ruto presidency, is unlikely to energise the ODM support base. ODM could suffer humiliating defeats in the hands of a wily, tenacious, and daredevil opponent bound by no compunction.

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