The Elephant


By Charles Hornsby

The grand bowl

This was due to be the last in a series of four articles on the Kenyan general elections of 2017. The first three looked at the campaign, the state of play between the main alliances and the capabilities and activities of the Independent Elections and Boundaries Commission and made a series of predictions about the likely results of the 8 August poll at presidential, gubernatorial and parliamentary levels. This article looks at what happened next: the results, where those predictions were right and wrong, what we can deduce about the conduct of the electoral process in the light of the Supreme Court’s invalidation of the presidential poll on 1 September and what lessons there may be in the first presidential poll for the second.

The Presidential Results

In the Presidency, as predicted in all three articles, according to the Form 34Bs which record the 290 constituency results, Uhuru Kenyatta won a clear victory; winning 54% of the vote to 45% for his main challenger Raila Odinga. This was the result of an electoral process which initially pleased almost everyone. The procedures on polling day worked well, the electronic voter identification and tallying systems mostly functioned as intended (or at least as predicted), there was no military intervention, no mass failure of the electronic voter verification system and counting at the polling stations was mostly uneventful. The presidential results were (mostly) logical and consistent with previous elections and with the parallel elections taking place and there were no excesses of votes in the Presidency compared to the other polls. The overall process was given the support both of domestic and international observers (with qualifications as the results had not yet been declared at that point).

For now, this analysis is based on the opinion – which I hope to explain – that while there were material administrative issues sufficient in the minds of the Supreme Court to invalidate the election, the evidence strongly suggests that the presidential results announced by IEBC were not “cooked” or “computer generated”.

That is not the view of a large number of Kenyans who supported the NASA coalition however, nor of the Supreme Court, and we will look in more detail at their concerns later. For now, this analysis is based on the opinion – which I hope to explain – that while there were material administrative issues sufficient in the minds of the Supreme Court to invalidate the election, the evidence strongly suggests that the presidential results announced by IEBC were not “cooked” or “computer generated”. Many of the complaints raised relate to the IEBC’s partial migration to an electronic tallying system, which as predicted was a key source of confusion.

Overall, the IEBC results showed that Kenyatta and William Ruto had won a decisive victory, by a greater margin than most had predicted. They won 26 counties to Odinga’s 21. Uhuru won three counties I thought he would lose – Garissa, Narok and Nyamira – and lost one, Tana River.

Kenya’s 47 Counties by the Winning Presidential Candidate (Anulled)

I got closest in my article in June, which predicted a 55-45% victory, In fact, the closer to the election we got and the more information I acquired, the less accurate my predictions were. In fact, I had begun to doubt my own numbers and modified my eve-of-poll prediction from 53-47% (which the spreadsheet suggested) to 52% to 48%. I left however the predicted votes for each candidate the same, and there I was pretty close: the official constituency Form 34Bs show that Kenyatta beat Odinga by 8.2 million to 6.8 million votes, compared to which I had predicted 8 million to 7 million.

Regionally, Kenyatta and Odinga (and their respective Vice Presidential candidates William Ruto and Kalonzo Musyoka) won all their Kikuyu, Kalenjin, Luo and Kamba “heartlands” as expected, and by huge margins. The two internal “insurgencies” in Bomet (Isaac Ruto for NASA) and Machakos (Alfred Mutua for Jubilee) both had little impact on the presidential votes. I had expected Ruto to bring more voters to Odinga than he in fact did. Little will change here in a rerun. As predicted, Kenyatta won most of the north and North east, Odinga most of the Coast and Western. Nairobi (on the far left of the chart below) was narrowly pro-Odinga (51% to 48%), much closer that opinion polls had predicted, a source of some surprise. Ipsos for example had run a survey in Nairobi just pre-poll which predicted a 56% Odinga vote with a margin of error of +-2.7%. The Kisii and Nyamira result (on the far right) were also a surprise, as most commentators, myself included, had given the region to NASA as in 2013. Explanations given afterwards included the heavy investment Jubilee had made in the region, the defection of virtually all ODM MPs to Jubilee and the influence of Fred Matiang’i as cabinet secretary.

Image 2

Note: Orange throughout is NASA or Odinga; Blue throughout is Jubilee or Kenyatta. I use blue rather than red, the “Jubilee colour”, because red and orange look similar in some display formats, and because blue is a more “conservative” colour in most political systems than red, which tends to be associated with socialism and communism, and Jubilee is definitely a more conservative alliance.

As expected, all the other candidates were irrelevant, except for Joseph Nyagah (small spread votes) and Mohammed Dida (in green above), who polled creditably in the north and north east. Rejected and otherwise inadmissible votes were reasonable, down on 2013 at 0.5% overall (based on the Form 34Bs).

When I summed them manually, the 34Bs added up to almost exactly the same results as IEBC had announced around 8pm on 11 August (which they had done with a couple of seats still missing, as they were entitled to do).

These Presidential results are taken directly myself from the 34Bs, when they were published in a repository by IEBC, which were the only formal and legal basis for announcing a result. When I summed them manually, the 34Bs added up to almost exactly the same results as IEBC had announced around 8pm on 11 August (which they had done with a couple of seats still missing, as they were entitled to do). There were three Form 34Bs missing from the Forms repository (a different result had been uploaded instead), so I used the 34C national summary for them. The results in the IEBC real time portal (initially fed by the KIEMS system and then corrected and topped up later manually with missing results) were similar, though not identical, with the main difference being the spoilt votes, where – as in 2013 – there appeared to be an glitch which led the number of rejected, disputed and objected votes to be far larger electronically than in fact it turned out to be (something the IEBC has never explained).

Comparing the now invalidated presidential results against those for 2013 (easy with the same constituencies and candidates) we can see clear trends. Kenyatta did better in most areas, picking up votes especially in the north and North East, the Coast, Western and Kisii/Nyamira. Odinga did better in Bomet, some northern Kalenjin seats, most of Western (where he took the majority of Mudavadi’s 2013 vote) and Meru.

Image 3

Change in Vote for the Main Candidates 2013-2017

Turnout was substantially down on 2013. This was as predicted: the 2013 election had been fought on a new register, which had been only incrementally and partially updated since then, leaving at least a million dead voters still registered, so turnouts were inevitably going to be lower. In addition, the electronic voter identification system, with id cards, photographs and fingerprints combined, and (uneditable) tallies of voters maintained electronically by the KIEMS systems, deterred or prevented some “top up voting“ (officials voting for missing voters at the end of the day) which occurred in 2013.

In summary, if the Presidential result was substantively rigged or the result otherwise affected by the issues found, it is near certain that all the other elections must have been rigged or affected in the same way, as they involved the same voters, method for voting, technology for voter identification and results transmission (KIEMS), the same real-time results display portal, the same voting and counting processes, the same election officials and almost the same end results.

The turnout pattern (in black below) matched very closely that of previous polls, highest in the Luo and Kikuyu homelands, lowest on the coast. Turnouts exceeded 85% in 35 mostly Kikuyu, Luo and Kalenjin constituencies, a sign of some forced voting, top ups or stuffing, but exceeded 90% nowhere, and nationwide were a very reasonable 78% (compared to the 76% that a long-term weighted average of the last five elections suggested). The change in turnout on 2013 (in green below) was mostly consistent, as would be expected if dead voters were the main reason. Turnouts rose slightly in a couple of Kilifi seats where they had been depressed by the Mombasa Republican Council violence in 2013, and in Tharaka in Tharaka-Nithi (unexplained so far).

Presidential Turnout

Presidential Turnout 2017 and Change vs. 2013

The Governorships

In the 47 gubernatorial races, the results followed a similar pattern to those for the Presidency. Again, Jubilee won decisively, by a greater margin than predicted. Here too, I underestimated the scale of Jubilee’s victory (though I got the winner right in 40 of 47). I predicted that Jubilee and their KANU, MCC, FAP, PNU, DP, NARC-Kenya and independent allies would win 21-28 Governorships, but they ended up with 29. As expected, they won their homelands, and Mike Sonko won Nairobi. Jubilee also won four counties where I had them as marginals (Narok, Kwale, Lamu and Wajir) and four (Garissa, Kajiado, Bomet and Machakos) which I had given to NASA. Across the nation, only 21 of the 47 incumbent governors returned to office.

Kenya’s 47 Governors by Winning Alliance

Kenya’s 47 Governors by Winning Alliance

New Governors included three Kenyatta first-term cabinet secretaries, all dropped from their posts for various alleged misdeeds: Anne Waiguru in Kirinyaga, Joseph ole Lenku in Kajiado and Charity Ngilu in Kitui – plus retired Kibaki-era Secretary to the Cabinet Francis Kimemia. This reaffirmed the illusory nature of the distinction between senior non-partisan state officials and politicians. If they were not in active politics when they entered office, they certainly were by the time they left.

For many Kenyans, the local races for MP and MCA were just as important as those for the President and Governor. There too, the same pattern was seen – Jubilee successes across the board.

NASA did not petition the governorship elections collectively, though they made allegations that some results were “computer generated” and initially, nor did most losing gubernatorial candidates. There seemed a general assumption that the non-presidential polls were not systematically rigged until the Supreme Court’s judgement, which immediately opened the floodgates for petitions by defeated candidates, including losing gubernatorial candidates, in Embu, Siaya, Kirinyaga and Machakos, with more to come.

The Parliamentary Races

For many Kenyans, the local races for MP and MCA were just as important as those for the President and Governor. There too, the same pattern was seen – Jubilee successes across the board. In the National Assembly, for the 290 constituency MPs my prediction of a 54% pro-Jubilee to 46% pro-NASA win turned out again to be a slight underestimate of the size of Jubilee’s victory. In fact, Jubilee and allies won roughly 60% to just under 40% for NASA. Jubilee did well in Bungoma and Kakamega (where ex-New FORD Kenya members formed the core of their victors), Kisii and Maasailand, and even won a couple of seats in Kitui and Machakos. ODM swept Luo areas and most of the Coast and Wiper most of Ukambani, while Mudavadi’s ANC, FORD-Kenya and ODM competed for the non-Jubilee western seats. Nairobi split 9 seats to Jubilee to 8 to NASA. The majority of MPs were newcomers, with voters clearly demanding change at the local level, particularly in the Kikuyu and Luo homelands, where few incumbents were re-elected.

The pattern was similar amongst the elected county Women’s MPs (with 31 for Jubilee and its allies versus 16 NASA and one independent) and in the Senate, where Jubilee and allies won 27 elected seats to NASAs 20). Overall, Jubilee won (initially) the presidency, the National Assembly, the Senate and most of the Governorships, the most decisive victory since the NARC wave of 2002.

Contrasting Perspectives and NASA’s Concerns

In general, the elections appeared to have been smoothly run, the results consistent, the electronic portal reporting convincing and the IEBC appeared comfortable in delivering its mandate. Observers commended the process as “peaceful, fair, and transparent”. Believing it had lost its ability to validate and correct constituency errors after the Maina Kiai et al case, IEBC headquarters limited itself – for the presidential election victory announcement – to a process of extraction, verification and entry of the 290 constituency Form 34B returns, the summing of these results and the announcement of the winner. As there remains dispute on this, the key decision summary is reproduced here from the Kiai judgement (http://kenyalaw.org/caselaw/cases/view/133874/):

image 6

The results Chebukati announced from the 34Bs (acknowledged by all to be without a complete set of 40,000 matching polling station Form 34As) matched closely with the parallel returns coming from the polling stations via the electronic KIEMS system in real-time to Bomas. From close of poll on the 8th, the parallel result stream from KIEMS soon showed a lead for Kenyatta and that lead grew over the next 48 hours as more and more of the electronic kits reported in.

The independent Parallel Vote Tabulation conducted by the ELOG domestic observer network and announced on 12 August validated the results almost precisely (its sample-based prediction gave 54% for Kenyatta to 45% to Odinga with a 1.9% margin of error). This was crucial because it provided independent verification to observers and the media that their perception of a well-run election was matched by independent assessment. Of course, this could have been faked, but there is no evidence yet offered that it was.

A macro-level comparison of voters cast and results between elections in fact shows that Odinga did better presidentially than his candidates in general. A re-tallying of the 15.3 million gubernatorial votes by constituency gives 5.7 million votes to ODM, Wiper, CCM, ANC, FORD–Kenya and allied candidates, far less than Odinga’s 6.8 million (in red). Thus Odinga did better in the cancelled presidential elections than did his gubernatorial candidates. The same pattern is seen in Parliament – again, Jubilee candidates polled more than 2 million more than NASA, though results are incomplete become 18 seats still don’t have full results on the Portal (https://public.rts.iebc.or.ke).

alliances

Jubilee = Jubilee + KANU + FAP + MCC + EFP + DP + PNU + NARC-Kenya plus defectors from the above after losing primaries, where known

NASA = ODM + Wiper + CCM +ANC + FORD-K + CCU + NARC plus defectors from the above after losing primaries, where known

Jubilee’s victories in the annulled presidency matched well with its victories in parliament and the Governorships. Comparing the Presidential, Gubernatorial, Senate and Women’s Representative results against each other by winner, in only nine counties did voters switch tickets: Nairobi, Machakos, Lamu, Tana River, Kwale, Taita-Taveta, Turkana, Narok, Trans-Nzoia and Nyamira.

image 8

Of those, Odinga won every one except Nyamira. In summary, if the Presidential result was substantively rigged or the result otherwise affected by the issues found, it is near certain that all the other elections must have been rigged or affected in the same way, as they involved the same voters, method for voting, technology for voter identification and results transmission (KIEMS), the same real-time results display portal, the same voting and counting processes, the same election officials and almost the same end results.

Rather than conceding once the trend was clear, Odinga rejected the presidential results outright (though not the other results) and accused the IEBC of a “complete fraud”. NASA’s impassioned follow up allegations were more specific, claiming form substitution, un-gazetted polling stations and administrative chaos in the IEBC and castigating the IEBC for releasing the presidential results without all the Form 34As. The sometimes-contradictory and implausible hacking claims made by senior politicians including Odinga, James Orengo and Mudavadi on 9-10 August raised the political temperature sharply, as intended, but also distracted attention for a while from real issues which were emerging relating to the IEBCs handing of the Form 34As. Despite widespread scepticism and challenge from the international observers, who had all judged the polls so far (before results had been announced) to be free and fair, NASA’s leaders refused to accept the results, claiming they were “cooked” or “faked” and demanded – even before all form 34B were in – that IEBC declare Raila as President (at one point using a faked NASA parallel count document as supporting evidence).

(Musalia Mudavadi Press Conference, 10 August 2017)

(Musalia Mudavadi Press Conference, 10 August 2017)

Unexpectedly abandoned by the international observers, who they had previously seen as allies, they lashed out at them as well. A few NGOs including the Kenya Human Rights Commission backed up NASA’s allegations to varying degrees, which then raised further fears of state repression (and generated further bad press internationally) when the state briefly tried to shut them down immediately the result was announced.

However, Odinga and the other NASA principles came under intense domestic and international pressure to take the constitutional path, as their ambivalent, partial move to “the streets” to protest during Wednesday 9th – Sunday 13th August was escalating and several people (probably at least 28) had been killed, mostly by the security forces.

NASA followed up their allegations with a petition against the presidential election, filed just within the one-week deadline on 18 August. Until the 16th, they had told Kenyans that “filing a petition at the Supreme Court to challenge the results was out of the question” because of CORD’s difficult experience in 2013 in crafting a case in one week, and the high burden of proof then demanded. However, Odinga and the other NASA principles came under intense domestic and international pressure to take the constitutional path, as their ambivalent, partial move to “the streets” to protest during Wednesday 9th – Sunday 13th August was escalating and several people (probably at least 28) had been killed, mostly by the security forces. Fears of broader communal violence in Nairobi were growing, fuelled by a series of fake media photographs, pretending to be current and of Kenya, designed to incite hatred. The decision to petition offered a temporary release for that tension.

For just one week (extraordinarily brief because of the two-week end to end deadline for concluding presidential cases, which the judiciary had already asked unsuccessfully to be extended) the Supreme Court heard the NASA case and responses from the IEBCs lawyers and other interested parties, with the verdict announced 1 September. NASA’s case focussed on five main areas – the electronic vote transmission system and its potential hacking (with the extraordinary claim that the portal results were a mathematical calculation unrelated to the actual votes cast); the missing form 34As and whether some were invalid or had been faked or substituted and errors in the KIEMS data entry which sent some of the results to the tallying centres; whether the IEBC Chairman should have declared without all the form 34As in his possession; examples of tallying errors between form 34As and Bs and possible malpractice in particular constituencies; and the pre-poll electoral environment including campaigning by Cabinet Secretaries for the ruling alliance.

The two dissenting judges’ Ndung’u and Ojwang’s opinions on the case were brutal – that the petition was without merit, devoid of evidence and that any transmission irregularities did not and could not have affected the outcome of the actual election at the polling stations or the count at constituency tallying centres.

To some surprise, by a 4-2 majority verdict the Supreme Court led by Chief Justice Maraga nullified Kenyatta’s re-election, because the poll was “not conducted in accordance with the Constitution”, and specifically the IEBC had “committed irregularities and illegalities inter alia, in the transmission of results”. The detailed grounds for that decision are not yet known, as the formally argued verdict will only be issued in 21 days (as it was “not humanly possible” in the words of the CJ to prepare the report in the time available). The court found no evidence of misconduct by Kenyatta (which had been one of Odinga’s petition grounds), though again we do not yet know their reasoning. It ordered another “fresh” presidential poll to be held in 60 days.

The two dissenting judges’ Ndung’u and Ojwang’s opinions on the case were brutal – that the petition was without merit, devoid of evidence and that any transmission irregularities did not and could not have affected the outcome of the actual election at the polling stations or the count at constituency tallying centres. Justice Ojwang argued that “there is not an iota of merit in invalidating the clear expression of the Kenyan people”. Kenyatta’s lawyers were furious, with one calling it “a political decision that is absolutely devoid of an iota of legal reasoning”, but the Supreme Court is Kenya’s final court and there is no further appeal.

Where were the Real Issues?

The single most vexed element of the whole election proved to be the electronic vote tallying and reporting, which had been introduced in the 2016 and 2017 Elections Act amendments. The unsolved murder of the IEBC expert responsible for KIEMS just before polling day (the reasons for which have still not been explained, though at least one person is still in custody) added fear and uncertainty to an already confusing situation. Most of this was unnecessary, as the election results used to calculate the Presidential winner should always and only have been those from the form 34Bs. The electronic results which came direct from the 40,833 polling stations to the portal were unofficial, incomplete (because they would and could never get 100% electronic results in a country so large and diverse economically as Kenya) and would inevitably differ (as they in fact did) from the 34Bs prepared at constituency level (mostly due to data entry errors into KIEMS by officials when transcribing manually from the completed forms). Repeated NASA allegations of hacking of the central IEBC server did not make great sense once it was clear that the central IEBC system was only being used for parallel presentation of polling station results from KIEMS. The actual presidential result came from the 290 constituency Form 34Bs. And the allegedly hacked portal had almost exactly the same result (8.2 m to 6.8 m) as that produced by adding the Form 34Bs.

The second significant concern was the delays in obtaining and then displaying the form 34As in IEBC headquarters. These were not (in the IEBC’s view) required for the central presidential announcement, but were still essential in order to determine whether the overall election was free and fair. No constituency RO should have announced their winners without all their form 34As, yet a week after they had finished, thousands were missing. The IEBC originally promised that “The results for the presidential election will be transmitted together with an image of the polling station tally sheet”. Then two days before polling, they announced what had already been widely suspected – that 11,000 polling stations did not have sufficient wireless network coverage – so the results from KIEMS would either come later or minus the scanned Form 34A copy. The whereabouts of these 11,000 forms became a huge problem. The IEBC was ambivalent and even misleading at times in its reporting. It seems they had not initially realised that the ‘one-time use’ model for KIEMS devices meant that for the polling stations where the system could not send the image but could send the results online, the scan of the form 34A would have to be provided much later by other means. These trickled in over the next 1-2 weeks, electronically or by hand. The IECB’s ambiguity over the 34As and the portal cost them dearly in perceptions of their competence and credibility.

Their failure to provide a display portal for the Form 34As and Bs was a mistake which was rectified, quickly for the Form 34As, and then grudgingly, a week after the vote, for the 34Bs. However, once done, it exposed gap between image and reality, when huge swathes of form 34As were found to be missing and some to be illegible. Those which were in the system matched well with the results in the online portal, but some were unsigned, unstamped or in a different format, and no-one knew what had happened to those which were missing. Some reports suggested the gaps were politically material (e.g. disproportionately from Odinga’s homelands).

It now appears that some media houses were ordered not to report on constituency contests, which might lead to suspicion that something deeper was amiss.

This linked to a more systemic concern – the back office operation of IEBC headquarters. While on the face of it, Wafula Chebukati, Ezra Chiloba and other commissioners maintained a relaxed face, and the portal and forms systems worked well, exactly where the portal results were coming from and why so few Form 34As were available has never been fully explained. It seems that administratively things were far from smooth in the back office. Basic security controls were lax, with IEBC staff frantically updating systems with whatever data they could get using various userids, some of their much vaunted document security features were invalid, key constituency documents were duplicated or unsigned and some officials were not even gazetted. There are still no published results apart from those on the portal for any of the other elections – no Form 35,36 ,37 and 38 for the parliamentary, gubernatorial, women representative or senatorial results have been published anywhere. The IEBC portal has results, but they are still incomplete nearly a month after the election, and differ from the (fragmentary) official results gazetted by IEBC on 18 August. In general, the results reporting and display process was unclear and IEBC did not always follow the procedures it had promised pre-election to ensure transparency and build confidence. The evidence from NASA’s petition showed numerous data and quality integrities, which while they were modest in individual impact and probably affected all candidates (and therefore would have limited material effect on the election result) certainly led many to question what was happening behind the scenes.

Another concern (less widely known) is the way in which the Kenyan media focused entirely on the electronic portal for their results, making no effort to report the actual constituency results. No independent tally was maintained and for the first time ever the press did not report any Constituency presidential, parliamentary or other results as announced. Initially I has thought that was simply practical laziness – since the portal was available and online – but it seemed inexplicable that the media were not reporting any of the announcements at all. It now appears that some media houses were ordered not to report on constituency contests, which might lead to suspicion that something deeper was amiss.

Still more concerns existed as to how individual presiding and returning officers behaved during their counting and tallying. Some Presiding Officers (for example in Mandera) were replaced the night before polling for unclear reasons. In some stations in pro-Jubilee homelands, NASA agents were not admitted and there was evidence in some stations of “top up” marking of unused ballots after polls closed. Many of the Form 34As had arithmetical issues or were not appropriately signed. It seems from NASA’s petition that some 34As may have been substituted with new (fake) documents or amended after counts finished (though KIEMS should prevent that, KEIMS didn’t work everywhere). In 13 per cent of polling stations, ELOG reported that Form 34A results were not displayed publicly as required by law. Some Form 34Bs show basic mathematical errors. There is also statistical evidence that (as in previous polls) presidential tallies were somehow inflated in the homelands (though there were few public protests at the time). For example, work in progress by Raiya Huru looking at the statistical distribution of Form 34A numbers suggests that in Murang’a, Nyeri, Nyandarua, Siaya, Kisumu and Homa Bay, the polling station results had been tampered with by someone (http://raiyahuru.com/Analysis.pdf). This matched well the NASA petition analyst’s view that something was amiss statistically with many of the results. The IEBC admitted that there were errors in the forms, but claimed they were not substantial enough to affect the outcome of the election.

The Presidential Election Part II

As the petition proceeded, life had begun to return to normal. The new MPs had been sworn in, governors had mostly completed their handovers, and for most Kenyans, the lengthy, expensive, diverting election was becoming a thing of the past. However, with the Court’s announcement we are now in uncharted waters, with the IEBC required to rerun the presidential poll within 60 days, for reasons which are not yet clear.

The IEBC should have been prepared for a runoff, so in theory all should be ready for a rerun. However, whether the IEBC can put together the temporary staff, the KIEMS devices, the logistics and the ballot papers in time for 17 October we do not yet know, especially as the IEBC itself is now under threat. So far Chebukati is staying put rather than resigning, but Chiloba has been side-lined entirely, as have several other officials (putting further stress on those who remain). But NASA is already objecting to the Supreme Court’s order that IEBC conduct a fresh poll in 60 days (because IEBC must be reconstituted), and IEBC has already decided not to conduct a full presidential poll anyway but only a second round runoff, based on the judgement in the 2013 petition [para 291] that “If the petitioner was only one of the candidates, and who had taken the second position in vote-tally to the President-elect, then the “fresh election” will, in law, be confined to the petitioner and the President-elect.”. And the precedent set in the Presidential petition would appear to allow every loser in the other five elections to annul every winner’s election on the same basis, if they can file a petition in time. So, more court cases loom while time runs out.

How effectively the two alliances will respond – without much time to raise money – to the need to do it all again no-one knows, but Jubilee are now grim, angry and spoiling for a rematch, which may well be dirtier than the first. My first guess would be that the result of the second election, if actually held, will be similar to that in the last, and in all the other “down ballot” elections, but until we know the real reasons why the Court annulled the vote, we do not know how much impact the irregularities they found may have had on the first presidential result. Victory in the courts may give the NASA camp fresh impetus and mitigate the pro-Jubilee bandwagon effect of incumbency, but Jubilee have a huge regional advantage (as they always did), more money and no intention of losing.

I had thought this would be my last piece, but perhaps we will need one more.


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The Elephant


By Charles Hornsby

The grand bowl

In the midst of the 2017 Kenyan election process and subsequent petition, a little- known Nairobi street sweeper became an overnight celebrity in mainstream national and international media after his picture started circulating among Kenyan social media users. The sweeper, Martin Kimotho, popularly known as Marto, was among the many Kenyans who were queuing before dawn on the 8th of August while eating githeri, a popular maize and beans meal, from a plastic bag as he waited for his turn to vote. Another youthful Kenyan, Ian Kinuthia, who was voting for the first time in the same polling station, took a picture of Marto and sent it to his friends on WhatsApp. The next day, Kenyans online, especially middle class Kenyans often found on Twitter, had christened the 42-year-old sweeper the “Githeriman” (#GitheriMan) and had decided that he was Kenya’s hero because he had united Kenyans of different ethnic groups as they praised him for going to vote at 5 in the morning while eating his “measly githeri”.

Saviour mentality

Leading corporates, including Safaricom, the multibillion-shilling telecommunications company, lined up to donate gifts to and dress up Marto in their own image. Marto’s over-sized brown jacket was quickly replaced with fitting designer suits by a suit company where our political elite buy their clothes. They gave Marto a total make-over with clothes and shoes to look the part of a sleek Nairobi executive. A real estate and mortgage company also showed up with a house. This has been a harvest season for Marto’s rise from grass to grace – just because he ate githeri from a polythene bag at dawn.

Githeri is a common meal across Kenya’s social strata, but in this context, the way he was eating it from a polythene bag rendered him a poor man who needed to be rescued from himself as soon as possible by patronising Kenyans online. I read one tweet where a former Kenyan celebrity offered to buy the “poor Marto” a pizza, which is ironical given that Marto’s githeri is a much healthier meal than a pizza. But the Kenyan middle class couldn’t see their folly in the excitement to save Marto from his githeri and his over-sized brown jacket, which was serving him perfectly well in his Kayole neighbourhood where he lives with his family while working in Dandora where he grew up.

I read one tweet where a former Kenyan celebrity offered to buy the “poor Marto” a pizza, which is ironical given that Marto’s githeri is a much healthier meal than a pizza. But the Kenyan middle class couldn’t see their folly in the excitement to save Marto from his githeri and his over-sized brown jacket

This trend where the Kenyan middle class and corporates on Twitter save low- income earners instead of challenging and volunteering themselves to fix that political and economic system that keeps the wananchi from attaining their potential is now a popular trend. Fly-by-night saviours with cheques and cameras appear immediately after something happens to Kenyans on the other side of town East of Moi Avenue. The story of the couple who had a Ksh.100 (about one US dollar) wedding comes to mind. Middle class Kenyans on Twitter and opportunistic corporates rewarded the couple with a honeymoon in Mombasa and land ready for irrigation in Isinya.

Like some Western saviours’ need to save African children and women from their society, Kenyans online are increasingly becoming patronising towards those from the other side of town through their saviour actions.

The complexity of Nyambura

Unemployed youth in Kenya are also using placards to get jobs, which is thinking outside the box in a country with a very high unemployment rate. Nyambura’s placard on Nairobi’s Moi Avenue a week or so ago was the most attention-grabbing. The placard said that she was looking for a husband to help her take care of her daughter. She had decided to play by the rules set up by Kenyan middle class saviours. They want to save someone, she is up for it and she has learnt the current rules of the game: show up, tell them your needs and let the saviours save you from yourself.

Many of those who run to dress up those who show up in their Twitter world in the comfort of their penthouses in Nairobi’s up-market neighbourhoods have challenges similar to those that Nyambura is facing – the need to connect with another human being deeply, the need to find a mother or father figure for your children to help them with homework. So when Nyambura shows up with such human needs, the saviours online become mute. Her case is too complex for a saviour story.

Interestingly, the Kenyan middle class saviours online have not been forthcoming with goodies, such as employment or offers of marriage, in Nyambura’s case as her story is not attractive enough for their corporate social responsibility (CRS) section of the annual report. The husband story in there complicates matters. Saviours like simple stuff.  Nyambura is looking for something deep and complex, a relationship, even though she needs a better income and education for her daughter. She is out to connect with another soul. She is human. She is not a statistic. She cannot be given a moniker like “Githeriman” or “100 bob wedding couple” because Nyambura represents our complexities as human beings.

Many of those who run to dress up those who show up in their Twitter world in the comfort of their penthouses in Nairobi’s up-market neighbourhoods have challenges similar to those that Nyambura is facing – the need to connect with another human being deeply, the need to find a mother or father figure for your children to help them with homework. So when Nyambura shows up with such human needs, the saviours online become mute. Her case is too complex for a saviour story.

I genuinely hope that she finds someone to assist her to find employment or earns an income that can allow her to take care of her daughter. I also pray that a genuine partner who is willing to be her companion shows up.

The question is, why have we turned Marto and others like him into a fetish? The reason is that the Kenyan middle class is constantly looking for someone to save and Marto showed up on 8th of August fitting the bill. Nyambura, however, did not fit the bill. Unlike Marto, she represents complexity.

Active citizenship

It is time to become active citizens on and outside Twitter by holding our national and county governments to account so that they can provide quality public services that can restore the dignity of all Kenyans, not just the dignity of one “Githeriman”. We must stop creating private solutions to public problems. If we had a system that worked for every Kenyan, the middle class wouldn’t need to save the “Githeriman” and others like him. They would recognise them alright but not through fetishising them. I am very happy when low-income earners, such as Marto, get to benefit from an unfair capitalist economic system in these saviour circles. However, Kenyans online can do much more by moving beyond small populist gains that make the middle class feel good about themselves to systemically challenging the government and the corporates to guarantee dignity for all Kenyans.

It is time to become active citizens on and outside Twitter by holding our national and county governments to account so that they can provide quality public services that can restore the dignity of all Kenyans, not just the dignity one “Githeriman”. We must stop creating private solutions to public problems. If we had a system that worked for every Kenyan, the middle class wouldn’t need to save the “Githeriman” and others like him.

So, as a way forward, before joining the next online saviour series, how about starting a movement for quality healthcare in public hospitals and improvement of public education in your neighbourhood, town, city or county. How about also asking Safaricom to reduce their cost of transactions so that Marto and other low-income people can have enough money to buy food for their families because many low-income Kenyans spend a large proportion of their income on airtime for their mobile phones. How about asking those corporates lining up to have a photo op with “Githerman” to commit to equipping and maintaining the cancer machines at the oncology department at Kenyatta National Hospital to ensure treatment for Marto’s neighbours. You get the drift…on to the next saviour series.


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The Elephant


By Charles Hornsby

The grand bowl

The post-general election environment in Kenya has been characterised by efforts to crackdown on two human rights organisations. While this recent onslaught appears to be leveled against human rights institutions, it is also an attack on individuals who have held particular views on questions of justice and freedom over the years. The Kenya Human Rights Commission and the Africa Centre for Open Governance are perceived as being a problem for the current regime. The regime’s propagandists have in the past described individuals and civil society organisations that are critical of it as the “evil society”.

The “evil society” tag, which was also accompanied by “Western puppets”, grew in intensity prior to the 2013 elections as a variety of voices supported the pursuit of justice at the International Criminal Court for crimes committed during the 2007/8 post-election crisis in Kenya. The cases that eventually collapsed enjoined the current president and deputy president, who mobilised “anti-Western” sentiments successfully for their presidential campaign in 2013.

A historical view suggests that what we are witnessing in Kenya is demonstrative of a systemic approach to dealing with dissent, even though the tactics may have changed in a new and evolving global environment.

The closure of civic space has become an increasingly important debate within civil society organisations. CIVICUS has classified the various ways in which this manifests across the globe. In July 2017, I participated in a global convening about the dangers of state repression and how governments globally were overtly and covertly limiting civil liberties. It was evident to some of us in the room that while the signposts of closure, such as reduced media freedoms and regulation of civil society organisations’ operations, were key, they missed an assessment of how regimes demonstrate their fragility on a daily basis. It became clear to us that regimes are not just going for civil society organisations, they are also going for ordinary citizens.

A historical view suggests that what we are witnessing in Kenya is demonstrative of a systemic approach to dealing with dissent, even though the tactics may have changed in a new and evolving global environment. The tools available to the hetero-patriarchal state may appear sophisticated but at its root the state aims to deter full freedoms whilst appearing to offer others. So, on the one hand, a government will offer a harsh sentence to those who sexually assault women in public spaces, while at the same time have parliament refuse to pass a bill on domestic violence or marital rape. The same government that appears to take seriously the question of violence against women through legislation on rape and other forms of violence will arm its national police to enable it to violently respond to citizens protesting against high food prices or poor service delivery. Consequently, the relationship between discourses and practices of violence, securitisation and peace must be placed front and centre in discussions on shrinking civil liberties.

Since the September 2013 terror attack at the Westgate mall in Nairobi, Kenyans have witnessed increasing state-led securitisation that has created room for greater intrusion into citizens’ lives. The government has corralled citizens around the notion of peace being synonymous with more arms. This has been most obvious in the increased hardware allocated to the national police, which is part of a larger securitisation discourse engendered by the “war on terror” launched by the Bush administration after the September 11th terror attacks in New York and Washington DC.

The daily insecurity faced by women is justified by our acceptance of violence as synonymous with security and an accompanying structural belief that women who have “strayed” away from their traditional roles should be violently guided back to their rightful place.

Accompanying these investments is a national narrative evident in television advertisements and pronouncements on the individual’s role to secure themselves. These investments include surveillance equipment and the tacit encouragement of Stalinist-style civilian surveillance through “Nyumba Kumi”, a version of community policing launched to aid crime prevention. All of these seemingly parallel and disconnected activities justify the monopoly of violence by everyone, not just the state, as a legitimate way to do business in the country. The strongest counter-argument to those who suggest that we can imagine secure lives without weaponising peace is in the statement – “you are either with us or against us”.

More critically, when we reflect on civil liberties, it is important to focus on the mobilisation of gender identity as part of this project. Women and girls in Kenya have been mobilised as mothers, child bearers and nurturers to contribute to de-radicalising young men and to sustain peace. The images of politicians’ wives wearing white clothes and praying for peace at rallies ahead of the just-concluded general elections are a critical part of this public imaginary. Yet at the same time, public spaces occupied by women are constricted through attacks on women in public office, on the streets through stripping and, most potently, through the failure to fulfill the gender equality provisions in the constitution. These actions are demonstrative of how fear of violence serves to discipline women into accepting traditional gender roles. The daily insecurity faced by women is justified by our acceptance of violence as synonymous with security and an accompanying structural belief that women who have “strayed” away from their traditional roles should be violently guided back to their rightful place.

Young men who navigate their relationship with the state through violence in turn view violence as the only tool available to them to navigate their relationships with women and men who occupy different class positions.

These attacks on women do not occur in a vacuum. The increasing criminalisation of young men on the edges of our country and the class dynamics that shape the disposability of young men’s lives in Kenya heighten violent masculinities. The ease with which Kenyans justify violence illustrates how deeply securitisation discourses are embedded in the state’s surveillance and containment strategies. These debates were prevalent when the police violently responded to protests after the announcement of the 2017 presidential election results when, according to the Kenya National Commission on Human Rights, at least 24 people were killed at the hands of police officers; most of the victims were unarmed protesters or bystanders.

Extra-judicial murder of young men in particular is not new or isolated in Kenya. Critical here is how the criminalisation young men in the inner city begets gendered violence and limits citizens’ ability to live well on a daily basis. Young men who navigate their relationship with the state through violence in turn view violence as the only tool available to them to navigate their relationships with women and men who occupy different class positions. The class and gendered relationship may be about the wealthy that contribute to creating the socio-economic conditions that lead to 4 out of 10 Kenyans living in poverty and the richest 10% of the population receiving 40% of the nation’s income. This means that young women who live on the margins of our society bear the brunt of violence by men who occupy a low social or economic status.

As Kenyans witness the resurgence of attacks on human rights organisations, we need a historically grounded and nuanced approach to what we name as shrinking civic space. This is not only about civil society organisations and the threat to others like them; this is about the compact between Kenyans and their government. Regime insecurity manifests in curtailing the ability of citizens to live well. These signposts are around us on a daily basis before overt state responses kick in. It is these seemingly invisible group-specific demands that we must connect to the wider debates about the Kenyan state and its relationship to society.

As Kenyans witness the resurgence of attacks on human rights organisations, we need a historically grounded and nuanced approach to what we name as shrinking civic space. This is not only about civil society organisations and the threat to others like them; this is about the compact between Kenyans and their government.

There remains a fundamental question about the democratic control of the security forces in Kenya to ensure that responses to insecurity are not reliant on recreating insecurity. Security forces must enable an environment that is attentive to constitutionalism and they must develop an awareness of the structural conditions that foster inequality and exclusion. This must be at the heart of responses to shrinking civic space.

Equally, there are enough lessons to draw on globally about how violent extremism discourses and projects stall conversations about the national project. The threat of an ever-mutating “external force” is useful for masking internal problems that could provide the basis for broadening rather than reducing national disgruntlement.


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The Elephant


By Charles Hornsby

The grand bowl

If there is a jurisdiction that the Justices of the Supreme Court of Kenya curse is the court’s exclusive original jurisdiction to hear and determine presidential election petitions. It is both legal and political but politics reign supreme.

In a highly divided country, the court will be doomed whichever way it rules. Former Chief Justice Dr. Willy Mutunga, conscious of the impact of “political jurisdiction” on the courts, expressed his frustrations in a public forum that courts ought not handle election disputes but instead politicians should “deal with their own shit” elsewhere.

In his dissenting opinion in Bush v. Gore, Justice Stevens, underscoring CJ Mutunga’s thinking sympathized with the Supreme Court of the United States and indeed the judiciary following the highly disputed 2001 election dispute between George Bush and Al Gore opining as follows:

Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Although SCOTUS does not have exclusive jurisdiction on presidential election dispute as Kenya’s, Bush v. Gore has been the court’s sore thumb that is thought to have led to a “court generated president”. Erwin Chemerinsky in his book The Case Against the Supreme Court notes:

Bush v. Gore obviously cost the Supreme Court in terms of credibility. More than forty-nine million people who voted for Al Gore, and likely almost all of them regard the Court’s decision as a partisan ruling by a Republican majority [judges] in favour of the Republican candidate. Few cases, if any, in American history have been more widely perceived as partisan than Bush v. Gore.

Raila Odinga took President Uhuru Kenyatta and the Independent Electoral and Boundaries Commission to the Supreme Court claiming that he did not fairly lose the 8 August 2017 presidential election to the incumbent. Raila Odinga had similarly petitioned the court following 2013 presidential election and the court dismissed his case. He had no kind words for the court following the infamous 2013 decision and in fact he had indicated that he would not challenge this year’s election outcome in the Court. However, in an interesting about turn, he has filed a petition which, in his own words, gives the Court a chance to “redeem itself”.

In May 2015, the Judicial Service Commission concluded that the three were guilty of conduct unbecoming of them as Judges of the Supreme Court which amounted to misconduct. However, JSC decided that the misconduct did not warrant a recommendation to President Kenyatta to appoint a Tribunal for their removal as prescribed by the Constitution.

The crux of Raila Odinga’s petition is that the election was just but a fraud. He argues that the election was incapable of being verified, the technology was interfered with to give a constant lead to President Uhuru Kenyatta from the onset, the election results do not tally and the Uhuru Kenyatta used the forceful hand of state to steal victory. The Petition also asked the court to depart from its 2013 decision, more particularly on the issue of rejected votes; that the rejected votes, which in this election amount to over 2% of the total votes cast ought to be included in computation of whether the winning candidate attained the 50% plus one vote threshold. The petition was vigorously opposed by the IEBC and President Kenyatta.

The court’s composition has not significantly changed since 2013 election petition- four out of the seven justices and therefore the majority, sat in the 2013 election petition which rendered unanimous decision validating the election of President Uhuru Kenyatta. On 9th October 2015 I lodged a petition with the JSC accusing three of these judges -Honourable Justice Mohammed Ibrahim, Honourable Justice Jackton B. Ojwang and Honourable Justice Njoki Susanna Ndungu- of misconduct by withdrawing their services to the people of Kenya by imposing a moratorium on all the judicial operations seemingly in protest over decision of JSC to retire Justice Kalpana Rawal (Deputy Chief Justice) and Justice Philip Tunoi. In May 2015, the Judicial Service Commission concluded that the three were guilty of conduct unbecoming of them as Judges of the Supreme Court which amounted to misconduct. However, JSC decided that the misconduct did not warrant a recommendation to President Kenyatta to appoint a Tribunal for their removal as prescribed by the Constitution. The JSC only resolved to admonish them, which decision is currently being challenged in the courts over whether the JSC has powers to admonish a judge in such circumstances.

Following the Presidential Elections conducted on 8th August 2017, Hon. Raila Odinga and the National Super Alliance (NASA) Coalition lodged a petition against the declaration by Indepenedent and Boundaries Commission (IEBC) declaration of Uhuru Kenyatta as the duly elected president. The hearing of the Petition was concluded on Tuesday, 29th August 2017 well after 9.00 p.m. The Judges thereafter retreated to deliberate on the following issues for determination as crafted by the court:

  • Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections.
  • Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.
  • If there were irregularities and illegalities, what was their impact, if any, on the integrity of the election?
  • What consequential orders, declarations and reliefs, if any, should be granted by the court?

In a majority decision of the six-judge bench delivered on 1st September 2017, with two Judges (Ojwang and Ndung’u) dissenting, the court ruled in favor of the petition as follows:

  • As to whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections, upon considering inter alia Articles 10, 38, 81 and 86 of the Constitution as well as, Sections 39(1C), 44, 44A and 83 of the Elections Act, the decision of the court is that the IEBC failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.
  • As to whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election, the court was satisfied that the IEBC committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which will be given in the detailed and reasoned Judgment of the court. The court however found no evidence of misconduct on the part of Uhuru Kenyatta.
  • As to whether the irregularities and illegalities affected the integrity of the election, the court was satisfied that they did and thereby impugning the integrity of the entire Presidential Election.

Consequent upon the above findings, the Court, pursuant to Article 140(2) and (3) of the Constitution and Rule 22 of the Supreme Court (Presidential Election) Rules , issued Declarations and the Orders as follows:

  • that the Presidential Election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void;
  • that Uhuru Kenyatta was not validly declared as the President elect and that the declaration is invalid, null and void;
  • That IEBC to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this determination under Article 140(3) of the Constitution.
  • That each party to bear their own costs of the petition.

The Court also indicated that detailed Judgment containing the reasons for its decision and the dissents will be issued within 21 days of the decision in conformity with Rule 23(1) of the Supreme Court (Presidential Elections) Rules, 2017 as it was impossible with the limited time the court has, to do so.

Over the course of the next few weeks, much ink will be poured to try and understand this decision. And while facts, evidence and law are what judges are trained to pay attention to, a particular judge’s prejudices, biases, jurisprudential leanings, political associations and philosophy and even religious or cultural convictions will also influence their decisions. The Court is, however, fairly young and hasn’t rendered enough decisions to enable a keen follower to meaningful discern each particular judge’s reasoning or the general court’s leaning. Below I will attempt to analyze each of the seven justices in the hope of contributing to the understanding of this decision and what it portends for the future.

However, it is also to be hoped that, unlike in 2013, each judge -or at least most of them, given Justice Ibrahim’s illness- will write their own separate opinions. That would help to enrich our election law jurisprudence and enable scrutiny of particular judge’s jurisprudential bias.

Chief Justice David Maraga

David Maraga is the Chief Justice and President of the Supreme Court, he will preside over the petition. He comes with solid understanding of and experience in the law both in the bar and the bench. His most remarkable election petition decision is the often cited Joho vs. Nyange. He also chaired the Judiciary Committee on Elections immediately before his appointment as Chief Justice. His knowledge on electoral disputes is therefore undoubted.

Maraga CJ is therefore the quintessential High Priest of the Court. He can be equated to Pontius Pilate and he wouldn’t convict without sufficient and cogent evidence.

Maraga an ultra-conservative in his persuasion and leaning. Raila will have tabled cogent evidence to convince him to overturn the presidential election. He is a new vote and voice in the court having taken over from Honourable Justice Dr. Willy Mutunga who presided over the 2013 petition.

He is also unapologetic Adventist. In his interview for the position of Chief Justice, he said that if a presidential election petition runs into Saturday, he will excuse himself and attend to his religious obligation. Even in his judgments, he doesn’t shy away from showing his pious side. For example, in a troubling 2007/2008 Post Election Violence murder case of Republic v. Stephen Kiprotich Lelei & 3 Others (2009) where he was a trial judge, he invoked his responsibility as a judge of evidence, facts and law even though he sympathized with the victims of the case given that the prosecution mismanaged the case. He proceeded to declare that “it is a responsibility that my family and I have prayed over for divine guidance”. Before the Judges and Magistrates’ Vetting Board where he had been accused of nepotism and corruption, he dramatically swore by the bible that he had never taken and would never take a bribe.

Maraga is therefore the quintessential High Priest of the Court. He can be equated to Pontius Pilate and he wouldn’t convict without sufficient and cogent evidence.

Deputy Chief Justice Philomena Mwilu

Like Maraga CJ, Justice Philomena Mwilu is a new vote to the Court having been elevated to the apex court at the same time. She has risen through the ranks from High Court judge through the Court of Appeal although her rise to the Supreme Court almost hit a snag when Kandara legislator Hon. Alice Wahome made scandalous but unfounded corruption allegation against her in an election petition where she, Hon. Alice Wahome was a party with Justice Mwilu presiding.

Because of her position and little known history, Justice Mwilu can safely be said to be a centrist who was always likely to vote with the majority the Court.

As the Deputy Chief Justice, she is the de facto leader in the judiciary. She is also a diplomat and operates efficiently within the ranks. Justice Mwilu is also young and able to succeed Justice Maraga who is due to retire in less than four years.

While she is a good case manager, she has not authored a zinger of an opinion that can make one attribute her inclinations in jurisprudence. Because of her position and little known history, Justice Mwilu can safely be said to be a centrist who was always likely to vote with the majority the Court.

Justice Mohammed Ibrahim

Justice Mohammed Ibrahim is the third-ranking member of the Supreme Court being the senior most jurist. Before joining the bench, Judge Ibrahim was a successful practitioner and he suffered in the second liberation struggle when he was detained for activism. His comrades in arms include his former law partner Paul Muite SC, Gibson Kamau Kuria SC, Dr. John Khaminwa and Raila Odinga.

His most famous decision was the anti-piracy case while serving in the High Court at Mombasa when he declared that the state had no powers to charge pirates who had been arrested beyond Kenya’s terrirorial waters. The case would later be overturned in the Court of Appeal where interestingly Justice Maraga wrote the lead judgment.

In the Supreme Court, he has authored progressive opinions, both concurring and dissenting. For example, in the case of Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai Estate & 4 Others (2013) where the Court was invited to depart from or review its earlier decision in S.K. Macharia & Another v. Kenya Commercial Bank Limited & 2 Others on the constitutionality of section 14 of the Supreme Court Act, Justice Ibrahim was the sole dissenting voice of the court who thought that the court should depart from its earlier decision. Though he was taken ill during the Raila Odinga petition, the request for the Court to depart from its 2013 decision on the issue of rejected votes may have found favor with him.

In the same case, he wrote an illuminating concurring opinion on the issue of recusal of Hon. Justice Tunoi from the matter on account of bias and conflict of interest. Justice Ibrahim profoundly wrote about the doctrine of necessity, that due to the numerical limitation of the Supreme Court, it would not be appropriate for a judge to recuse himself. He however flipped when confronted with the same issue in Lady Justice Kalpana H. Rawal & 2 others v Judicial Service Commission & 6 others [2016] eKLR, the retirement age case, a self-preservation decision.

When there was a crisis in the post Mutunga hand over, Justice Ibrahim temporarily acted as the Chief Justice. Although he sat in 2013 petition, Justice Ibrahim is a liberal. If onvinced with sufficient evidence to overturn a presidential election, he would have had little difficulty doing so.

Justice Prof. J.B Ojwang

Justice J.B Ojwang is the fourth-ranking member of the Supreme Court, with possibly the highest ranking academic title in laws. He earned the accolades on merit and was consequently awarded with the title Doctor of Laws.

Justice Prof. Ojwang has authored a book titled Constitutional Development in Kenya: Institutional Adaptation and Social Change. In the book, he developed an argument that constitutional development in Kenya should adapt to “development needs and its practice should be flexible enough to allow for appropriate institutional innovations to take root”. Such innovations would include “charisma” by the presidency as legitimate source of extra-legal legitimacy. While the good professor of law had freedom of intellectual and scholarly expression, this work did not sit well with his colleagues in the academia such as Prof. Kivutha Kibwana, the current Governor of Makueni County and others. He was seen as an apologist to the state excesses and he has not proved otherwise.

Outside the text of the law, Justice Prof. Ojwang has been accused of a bad temperament not befitting a judge.

Although he began his career in the bench as a progressive, Justice Prof. J.B. Ojwang is now an entrenched conservative. He sat in the infamous 2013 petition and that he was one of the dissenting judges in the 2017 petition comes as no surprise. He would not have been expected to depart from his earlier opinion unless a legal miracle happened.

Outside the text of the law, Justice Prof. Ojwang has been accused of a bad temperament not befitting a judge. This was evident during the retirement age case and his interview before the Judicial Service Commission for the position of Chief Justice. The good judge is unapologetic about his views, he regards himself highly and rightfully so just like the lizard that jumped from the high Iroko tree in Chinua Achebe’s Things Fall Apart.

Justice Suzanna Njoki Ndungu

Justice Njoki Susanna Ndungu is the fifth member of the Supreme Court and the other judge to pen a dissent. She has served in all the three branches of government. Before joining the court, she had served a term as a nominated Member of Parliament through former President Mwai Kibaki’s led NARC after a stint of activism. While in Parliament, she sponsored the acclaimed Sexual Offences Bill which was subsequently supported by government and later became law. This is her signature legislative achievement.

Justice Ndungu was also a member of Committee of Experts which crafted the Constitution of Kenya 2010. In the Supreme Court, she has distinguished herself as a patron saint of dissenting opinions having authored the highest number of persuasive dissenting decisions thus far including Advisory Opinion No. 2 of 2013,Speaker of the Senate & another v. Hon. Attorney General & Others (2013) eKLR on the role of senate and Evans Odhiambo Kidero v. Ferdinand Waititu & Others (2014) eKLR on timelines on filing an appeal on an election dispute from the High Court to the Court of Appeal. Her dissenting credentials were on show there.

Justice Ndungu stayed a decision of Court of Appeal on retirement of former Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi which highly divided the Mutunga Court. Together with Justice Prof. J.B Ojwang, she dissented in the retirement age case. Despite her activism background and young age, she is widely perceived as loyal to the system. She sat in the 2013 petition and would not have been expected to easily overturn a presidential election.

Justice Dr. Smokin Wanjala

Justice Dr. Smokin Wanjala is the sixth member of the Supreme Court. He joined the court after his stint as a director of the defunct Kenya Anti Corruption Authority, the predecessor of Ethics and Anti-Corruption Commission. He was also active in civil society and had a distinguished academic career.

In examining Justice Dr. Wanjala against high achievements in the academia, civil society and government, we apply the biblical doctrine of “for those that much is given, much is expected.” Justice Dr. Wanjala sat in the Mutunga Court’s 2013 petition where he did not pen his own opinion. He should therefore be judged with the others in that case and other decisions of the Court including the Munya case which recreated the constitutional doctrine of jurisdiction in the name of “normative derivative” and opened wide the Supreme Court door to limitless jurisdiction to preside in all electoral disputes.

In his last interview for the position of Chief Justice, Justice Dr. Wanjala stated that he does not wish to sit in another presidential petition and yet found himself in the same spot. Justice Dr. Wanjala is young and has possibly three more presidential petitions ahead of him. He is an over-cautious liberal and would have been a significant vote on the outcome of the petition.

Justice Isaac Lenaola

Justice Isaac Lenaola is the youngest member of the Court and has at least another twenty years ahead in the Court, should he be granted long life and choose not to retire early. He is likeable and he may be the Chief Justice someday.

He comes with solid credentials and is a first among equals. Justice Lenaola has been a judge in the High court where he made his mark, the East African Court of Justice and the Sierra Leone Special Tribunal. There are numerous bold decisions that he has delivered and worthy of note is the judgment delivered by the East African Court of Justice which barred the Tanzanian government from constructing a road through the Serengeti national park and therefore interfering with the East African ecosystem. He recently ruled against the state in the case of Hon. Kenneth Matiba as an indictment against torture and awarded his family the sum of Kshs. 504 Million.

In his interview for the position, he says he is a pragmatic liberal. Justice Lenaola can be persuaded depending on the evidence presented by either side.

He is therefore a true jurist in the form of Justice Warren Burger. He is a practical liberal with a pinch of common sense. In his interview for the position, he says he is a pragmatic liberal. Justice Lenaola can be persuaded depending on the evidence presented by either side.


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The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

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The Elephant


By Charles Hornsby

The grand bowl

Political violence has been inherent to the political evolution of Togo since its inception. Although it never erupted in the all-out war and large-scale tragedies that I have often seen across Africa, the West African country has a complicated political story.

A short 3 years after Togo’s independence, Sylvanus Olympio, the founding father of Togo, was gunned down at by former soldiers from the colonial army in the first coup ever in sub-Saharan Africa. The author of this assassination eventually seized power in 1967 in what would become, at the time of his death in 2005, the longest reign in Africa.

On August 19th 2017, peaceful demonstrators took to the streets to demand political reforms namely the reinstatement of the 1992 version of the country’s constitution. The government responded with tears gas and bullets leaving at least 2 demonstrators dead. By the next day, calm had returned. But many observers have noted that the fragile quietude may just be a precursor to a violent storm.

Repressions

To understand the current political crisis in Togo, one must go back to the origins of the military regime of Gnassingbé Eyadéma. A soldier in the French colonial army, Eyadema spent time in Indochina and Algeria fighting nationalists in these countries and did not return to Togo until after independence. Finding themselves out of a job following the demise of the French colonial empire, Eyadema and his army mates demanded to be part of the newly formed Togolese army.

Togo’s accession to independence had been a victory for nationalist forces led by President Olympio. His party, the Committee for the Unity of Togo (CUT) had struggled hard for the country’s freedom from the French colonial empire. Unlike other independence movements across the continent that saw confrontation between the Africans and their colonial masters, Togo’s independence contention was mainly between rival groups of Togolese.

On April 27, 1960, Sylvanus Olympio officially declared the independence of the republic of Togo after 80 years of successive German, British and French domination.

In 1956, Togo had become an autonomous republic within the French Union. The pro-French, led by Prime Minister Nicolas Grunitzky, favored a model that would grant the country greater autonomy as a French territory as they deemed Togo not ready for full statehood. The nationalists, in opposition insisted on nothing less than immediate independence and full statehood. The nationalists won the general elections in 1958, compelling the French to sign an agreement for full independence. On April 27, 1960, Sylvanus Olympio officially declared the independence of the republic of Togo after 80 years of successive German, British and French domination.

It was therefore no surprise that Olympio regarded the demobilized colonial soldiers with contempt and dismissed their request. He saw in their demand, the conniving hands of his former pro-French opponents that were attempting to destabilize his government. It was true at the time that Olympio’s government was working to totally break free from France’s influence by seeking partners to mint the country’s own currency. For him, mercenaries who had fought against freedom fighters had no place in a respectable army. This disagreement led to the coup in 1963 that left Olympio dead and a civilian pro-French government in place.

Eyadema initially moved to place Olympio’s rival, Grunitzky, in power. Through political maneuvering, made easier by a climate of social unrest between 1963 and 1967, he managed to seize the power for himself and to grow in strength by clenching an iron fist around the country. He abolished political parties and instituted a single party system, drawing inspiration from North Korea to popularize a personality cult, and looted the country’s resources.

He gained praise from the West for stabilizing the country and bringing peace while the reality was that he jailed most of his opponents, kept thousands in exile and simply eliminated dozens of dissidents. Absolute master aboard the ship, Eyadema saw no serious challenge to his power for decades.

After neutralizing all opposition, Eyadema managed the country through a period of relative stability. In the 1970’s the country’s main export, phosphate, saw a huge surge in price that enabled the government to silence critics and to pass the boom off for economic success. However, by the end of the decade, falling phosphate prices, coupled with poor economic stewardship and the pressures from lenders forced the country down the austerity path of Structural Adjustment Programs.

The imposition of restrictive measures led to cracks within the political apparatus of the single party and dissenting voices, thought to be long-silenced, started to become audible.

He gained praise from the West for stabilizing the country and bringing peace while the reality was that he jailed most of his opponents, kept thousands in exile and simply eliminated dozens of dissidents. Absolute master aboard the ship, Eyadema saw no serious challenge to his power for decades.

By the late 1980s, Togolese in exile and local dissidents had started to organize. The end of the cold war also created new possibilities as western powers started to be less tolerant of strongmen in Africa. Internal opposition became increasingly bold and defiance started to become common, especially among university students and intellectuals.

The First Uprising

In October 1990, a group of students protested the arrest of a few of their peers for allegedly defaming the president. Such exercise of free speech was a serious offence in the country of Eyadema.

General protests, fueled by the shock and anger caused by the violent response of the military, plunged the country into turmoil. The popularity of the movement that was also flaring up in many African countries resulted in many wins for the opposition.

The student’s movement piled pressure on the government, which released the prisoners. It was too late, however as the movement grew in strength, joined by all strata of society, pushing Eyadema to make political overtures including a multi-party system and the holding of a national conference.

Many Togolese came back from exile to participate in the national conference. They formed an alliance of democratic forces working together to keep the momentum through street protests and strikes that were so popular they would bring the country to a standstill. Cornered, and under the watchful eye of his western allies who were now insisting on human rights, Eyadema reluctantly launched the national conference in June 1991.

However, a day later, he and his army walked away from the conference, stating that they were offended by the blatant disrespect by the civilian members of the conference. A few weeks later the president ordered sent in tanks to stop the conference. Intransigent participants refused to leave. They had the support of the western diplomats who also insisted that the move was excessive. The conference concluded under sequester and talks brokered by German, France and US diplomats led to the acceptance of the outcome by Eyadema. The national conference laid the ground for democratic institutions and elected a prime minister to lead a transition to democracy.

The national conference laid the ground for democratic institutions and elected a prime minister to lead a transition to democracy.

Relations between the transitional bodies and Eyadema were tensed. The army ultimately launched and assault on the prime minister’s office, killing dozens and arresting the remaining including the prime minister. Amid the adversity however, one of the key accomplishments of the transition was a referendum on a new constitution that was upheld by 99 percent of voters.

The constitution of 1992 was supposed to be the last stop before the transition of power through a fair a democratic election. It featured a reduction of presidential terms to 5 years (under a previous single party constitution the term was 7 years), the novelty of limiting presidential terms to two consecutive periods, a two-round ballot system, a minimum age of 45 for presidential candidates and the creation of an independent electoral commission,

Eyadema continued taunt the democratic institutions by stirring conflicts with the new institution. In October 1992, the transitional legislative body, the High Council of the Republic, was held hostage for days by the army who assaulted its members. Afterwards, many fled into exile. The upset opposition called for a unlimited general strike until Eyadema resigned from power. The strike lasted 9 months. Eyadema and the army launched a campaign of terror resulting in massive fleeing of the population, countless arrests and political murders. All foreign partners of Togo including the European Union, France and Germany placed economic sanctions on the country. In 1993, Eyadema organized a presidential election that was boycotted by the opposition. He won unchallenged.

Eyadema used his new “first” term to undo the democratic progress. In 1998, he used the same terror approach to claim victory in an election that most observers deemed unfair. The head of the electoral commission had refused to call the official results and the ministry of the interior, a high ranking member of Eyadema’s party, went on public media to declare Eyadema as a winner. The sanctions in place since 1998 were maintained. Many reports placed the opposition flag bearer, Gilcrist Olympio (a son of the first president) as the actual winner.

In 2002, Eyadema and his ruling party, the Rally of the People of Togo (RPT) put the final touches to the dialing back of democracy by revising the constitution to remove term limits, reduce the number of rounds in presidential elections and lower the minimum age for candidates from 45 to 35.

Eyadema used his new “first” term to undo the democratic progress. In 1998, he used the same terror approach to claim victory in an election that most observers deemed unfair.

The Togolese opposition has weakened quickly after starting off as a unified front. The advent of the multiparty system awoke personal ambitions. The Coordination of the Democratic Opposition (COD) that led the charge through the National Conference imploded. Without a clear leader, there was little opportunity for a coherent response. The campaign of terror also took a toll on individual commitment as many resettled in foreign countries, slowing down the momentum.

The Prime Minister of the transition eventually joined Eyadema and started to cooperate with him to move his agenda, As did many of Eyadema’s opponents. and the individual reversals had a demoralizing effect. Althoygh very commited, many of the remaining opposition leaders lacked charisma and the single most significant personality, Gilcrist olympio went to stay in exile in Great Britain after being the target of an attack in 1992, that left many of this staffers dead. Consequently, the first uprising failed to carry through the democratic hopes of Togo.

Death of a dinosaur

Hopes of political change reappeared unexpectedly in 2005 when Eyadema died suddenly. But, hours within the official announcement, the army generals appointed Faure Gnassingbe, one of Eyadema’s sons as the new president in total violation of the constitution. Local and international pressures compelled Faure to resign a few days later.

Hopes of political change reappeared unexpectedly in 2005 when Eyadema died suddenly. But, hours within the official announcement, the army generals appointed Faure Gnassingbe, one of Eyadema’s sons as the new president in total violation of the constitution.

He was declared winner of the election held a couple of months later, causing violent protests around the country. The repression caused at least 500 deaths among civilians according to independent investigations.

The father, and the son

Like his father, Faure used all political tools to clinch his power. He promised reforms and a new way of governing, pitching himself as a bridge between a divided country. In 2006, he signed a comprehensive political agreement with the opposition parties and vowed to implement changes to ensure social peace. Some of the 22 key provisions of the agreement included presidential term limits and a two-round ballot. But the most important gain for the agreement was a rapprochement between Faure Gnassingbe and Gilcrist Olympio, the sons of the two former presidents. Faure Gnassingbe showed this off as a political trophy and seems less interested in any other provision of the agreement. He had succeeded in neutralizing his father’s biggest foe, the man who had vowed revenge against his own father’s assassin, now seems less committed to the fight for real change.

Renegades

It is important to note the broker of the Togolese Comprehensive Political Agreement was no one other than the president of Burkina Faso who was himself ousted from power by a popular uprising in 2014 as he attempted to remove term limits to remain in power. The early skeptics grew confident as years went by and Faure Gnassingbe went on to start a third controversial term as a president with no sign of political reform. The fragmented opposition was unable to effective rally around the issue and the population had grown weary of the repression. Democracy has become a dream once more under the rule of the son.

Talks of revolution

During the 2010, election the main political party led by Gilcrist Olympio imploded over personal conflicts. The party split as Gilcrist took an awkward decision not to be involved in the campaign. This led to a weak mobilization that made Faure’s re-election fairly easy. Former members of Gilcrist’s party went on to create the National Alliance for Change (ANC). They collaborated with other minor opposition parties but their new leader, Jean Pierre Fabre, lacks the charisma of his former mentor, Gilcrist.

Instead of asking for the current texts to be reformed, the PNP is simply demanding the reinstatement of the constitution of 1992 that had been adopted by the people and that included all the necessary guardrails for a free and fair election.

With a second term that was less controversial than the initial one, Faure now feels like a legitimate president. Before him, there were only fragments of the opposition, enough for him to testify that he allows opposition, but too fragmented and ineffective to be any real threat. In 2015, he was elected to a third term in an election that could be qualified as free but not fair, the fairness having to do with the fact that the constitution and the rules are rigged in favor the president’s party. Without political reforms and in the absence of term limits, no one else would ever be able to win an election in Togo.

Instead of fighting at the poll, the opposition turned its strategy towards the implementation of political reforms. This issue had been put on hold, as the opposition first believed they could simply win the elections and then make the reforms. Even after this moment of reckoning, there was still no consensus or clear strategy to move toward the reforms. Faure Gnassingbe continues to delay the implementation of the agreement and even the recommendations of groups that he himself commissioned to study the issue.

The lack of a clear strategy resulted in more division within the opposition. A group led by Tikpi Atchadam, a relatively unknown figure until a few months ago, went on to create the radical Pan African National Party (PNP). Instead of asking for the current texts to be reformed, the PNP is simply demanding the reinstatement of the constitution of 1992 that had been adopted by the people and that included all the necessary guardrails for a free and fair election.

It was largely unexpected that the PNP would be able to gather enough steam to shake the status quo. After calling for its militants to go out and protest on the streets on August 19th, 2017, thousands of red wearing sympathizers flooded the streets in several cities in Togo. The event spread to the Togolese diaspora in Ghana and Germany with hundreds of people demonstrating peacefully in these countries.

The events in Togo took a tragic turn when police fired real bullets into the demonstrators causing human casualties. Unlike in recent years when shots fired and tear gases were enough to disperse the protesters, the marchers faced off with the police in violent clashes. This was amplified by social media with live streaming, videos and updates on WhatsApp, Facebook and Twitter.

This could be the end of what many call the Togolese exceptionality. Since the 1990s, all countries in West African have seen a transition in government and have put term limits to ensure the peaceful transition of power.

After Saturday’s protest, the mainstream opposition parties who have been watching the PNP from a safe distance decided to heed the call of Tikpi Atchadam. Suddenly a once fragmented movement marred with personal conflict and a complacent relationship with the ruling authorities has found a renewed sense of unity.

This was hailed around the world by the Togolese diaspora that is now generously offering support and organizing the lobbying abroad. The country seems to be racing toward a long overdue change and the parties are insisting that the movement will not stop until all conditions are met.

This could be the end of what many call the Togolese exceptionality. Since the 1990s, all countries in West African have seen a transition in government and have put term limits to ensure the peaceful transition of power. With the recent demise of Yahya Jammeh of Gambia, Togo remains an anomaly in this part of Africa where the seeds of democracy are resiliently growing. The people of Togo appear resolute to correct that anomaly and sow freedom after 50 painful years of oppression.


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The Elephant


By Charles Hornsby

The grand bowl

I was twelve years old when the first invasions of white-owned farms by Zimbabwe’s war veterans were announced on television. The year was 2000. What followed, a decade in which we experienced the spiralling of the Zim dollar and the subsequent food shortages, electricity and water rationing, as well as political violence, was a kind of nightmare that forced us to grapple with our history.

History has been repeatedly evoked, at times eloquently, at times brutally, in Zimbabwe over the past one-and-a-half decades or so, as a means of justifying, among other policies, the country’s Fast Track Land Reform Programme. We, its people, have been caught in a recurring, closed loop in which we are coerced into living in a heavily edited and glorified past as an answer to, or more accurately, diversion from, the current miserable socio-politico-economic state. At the same time, international intervention in the “Zimbabwean problem” has become, in historic fashion, an exercise in amnesia, where countries such as Britain, while glossing over their colonial involvement in the country, partake in an obscene form of Western voyeurism on the suffering of Zimbabweans.

Zimbabwe’s Fast Track Land Reform Programme, which was spearheaded by the country’s war veterans in the year 2000 when war veterans invaded white-owned farms – an action that was soon after endorsed by the government – justifies itself through history. But what history? And what justifications are being made?

Indeed, the question of land in Zimbabwe is inexorably tied to the country’s history. It’s both a historical and a philosophical question; the local people were violently kicked off their land by Cecil John Rhodes and his British South Africa Company in the 1890s, who took control of the land on behalf of the British Crown. In doing so, the white settlers upset the local peoples’ relationship to the land, introducing modern capitalism and the concept of land as a commodity. A brief history of Zimbabwe and its land can be found here.

Zimbabwe’s Fast Track Land Reform Programme, which was spearheaded by the country’s war veterans in the year 2000 when war veterans invaded white-owned farms – an action that was soon after endorsed by the government – justifies itself through history. But what history? And what justifications are being made? The historian Terrence Ranger, in his essay, “The Uses and Abuses of History in Zimbabwe,” diagnoses the current history that is propagated by the Zimbabwean government as “patriotic history,” a type of history which

“emphasises the division of the nation not only into races but also into ‘patriots’ and ‘sell-outs’ among its African population…’patriotic history’ has replaced the idea of Socialism by that of “authenticity”…it offers a highly selective and streamlined version of the anti-colonial struggle. It is a doctrine of ‘permanent revolution’ leaping from Chimurenga to Chimurenga…It is a doctrine of violence because it sees itself as a doctrine of revolution” (2005:8).

Ranger’s description of the term “patriotic history” as being a “doctrine of violence” that is directly correlated to a “doctrine of revolution” has a direct link to the Fanonian view on decolonisation. As Fanon wrote in The Wretched of the Earth, decolonisation is a violent, revolutionary phenomenon that seeks to get beneath the surface racial relations within a colonial society; it seeks to “change the order of the world,” to disrupt a business-as-usual attitude, and to get at the social relations which enable racial fetish and its ties to land ownership in countries such as Zimbabwe.

The imbuing of Mugabe with “ancestral wisdom” is a powerful and effective tool. For one, it has elevated Mugabe to some god-like status, thwarting attempts at any meaningful critique of his failings and branding all such critique as “Western-motivated,” as if the people of Zimbabwe could not possibly think for themselves.

But how, exactly, does this “patriotic history” work in Zimbabwe? President Robert Mugabe’s ruling party ZANU(PF) propagates this type of history by relocating the country’s pre-colonial values and rituals and transposing them to the present as a mythical “deep ancestral memory.” Here we have a game of smoke-and-mirrors, in which the past is made malleable, but unquestionable, for to question a “sacred” past is to render oneself a “traitor.” An article in the Zimbabwean Sunday Mail (2003) by historian Professor Tafataona Mahoso reads:

“Mugabe is now every African who is opposed to the British and North American plunder and exploitation…So, old Mugabe here is not the person of Robert Mugabe. Rather it is that powerful, elemental African memory going back to the first Nehanda and even to the ancient Egyptians and Ethiopians who are now reclaiming Africa in history as the cradle of humankind.”

The imbuing of Mugabe with “ancestral wisdom” is a powerful and effective tool. For one, it has elevated Mugabe to some god-like status, thwarting attempts at any meaningful critique of his failings and branding all such critique as “Western-motivated,” as if the people of Zimbabwe could not possibly think for themselves. More importantly, it allows for state-aligned intellectuals (the kind Edward Said cautions against in his essay “Intellectual Exile: Expatriates and Marginals”), such as Professor Tafataona Mahoso, to say, without irony, that the “spirit of Cecil John Rhodes” has appeared “in the most aggressive, photogenic, restless and boyish body of British Prime Minister Tony Blair” (Sunday Mail, 25 February 2003).

The utilisation of pre-colonial history does the work of evoking in the citizenry memories of the past and linking them to what is happening in the present—Rhodes the colonialist has reappeared in the form of Tony Blair the imperialist—while speaking in an intimate local linguistic form (that of local traditions and ancestral spirits). The evoking of Rhodes and his deliberate linkage to Tony Blair also brings to mind the violent means by which the white-supremacist state of Rhodesia had to be removed, and the lives that were lost by the country’s war heroes. In linking that violence to the post-2000 violent struggle to wrest the farms from white farmers, an ideological parallel and justification is evoked; in line with Fanon, the ethos of struggle for the colonised can be but that of violence as a tool of emancipation. Just as violence is the oppressor’s tool, along with other sophisticated forms of economic and cultural persuasion.

But how does this transposed pre-colonial history that is imbued with ancestral values and is embodied in the form of individual persons operate within 21st century Zimbabwe? Could it be argued, for instance, that it seeks to contribute to a revolutionary impetus by imagining different forms of societal organisation? To consider this, one must note that the social relations in Zimbabwe post-2000 are different from how they were in the 1970s just before the country’s independence in 1980.

In the 1970s, the struggle for independence was fought using guerrilla tactics and aggressive rhetorical modes of persuasion in the form of imploring speeches made by the guerrilla parties’ nationalist leaders, thus garnering local support as well as international political, economic and military support from countries such as the USSR that had their own Cold War agendas with Western Europe and the USA. In the 2000s, the country’s ruling party ZANU(PF) was no longer a guerrilla party, but was and still is the dominant party in the country in full control of Zimbabwe’s judiciary, finances, army and state bodies. Yet, it has positioned itself rhetorically as a guerrilla party—in this way “justifying” its use of violence as a method of decolonisation while concurrently abusing the state’s civic bodies as a means of oppression of its citizenry—still in the trenches fighting to free the Zimbabwean people from Western dominance (the invasions of white-owned farms starting in the year 2000 were named the Third Chimurenga —the Third Liberation Struggle—evoking the First Chimurenga in the 1890s and the Second Chimurenga under the nationalist parties during the 1970s).

As Fanon argues in The Wretched of the Earth, this transposed history is nothing more than the tactic of a ruling elite that, “unable to open the future (for its people) or of flinging them onto the path of national reconstruction, that is to say, their own reconstruction,” keeps them in perpetual remembrance of a heavily edited, dreamy past as a means of preventing them from reckoning with their present circumstances.

Hence, this revived ancestral memory becomes a corruption of the past as means not to genuinely transform the present, but to manipulate it at the expense of the citizenry. Its main purpose is to facilitate ideological arguments and to solemnise rituals, with no intention of a genuine follow-through that can offer a real structural change for the citizenry. As Fanon argues in The Wretched of the Earth, this transposed history is nothing more than the tactic of a ruling elite that, “unable to open the future (for its people) or of flinging them onto the path of national reconstruction, that is to say, their own reconstruction,” keeps them in perpetual remembrance of a heavily edited, dreamy past as a means of preventing them from reckoning with their present circumstances.

Nevertheless, knowledge in and of itself can be a multi-purpose tool, and who is using it and to what ends can become more important than its intended purpose. Thus, can this ancestral memory and the working up of the citizenry by the ruling elite be utilised in ways other than what the ruling elite have intended? Can it benefit those who wish to bring to fruition in the periphery their societal ideas of being and self? This depends, in large part, on how those who participate in revolutionary activity view and understand themselves.

Thus the question: what role does land play as a revolutionary symbol to be reclaimed? In former colonised spaces, the racial fetish of colonialism cannot be separated from the commodity fetish of capitalism; both go hand in hand. The white man, by virtue of the colour of his skin, was historically advantaged during colonial times. Concurrently, the emergence of modern capitalism in Europe, which was exported to the periphery, enabled Europe to siphon the periphery’s natural as well as human resources to enrich both itself and the white minority that lived in and governed the colonies.

During colonial times, the Rhodesian government subsidised its white farming population, giving it not only favourable market prices, but banning black peasant farmers from selling their own produce at the same favourable rates. Furthermore, the white population was given the best arable land in Rhodesia, while blacks were cramped in and made to farm on poor land. As such, race and capitalism are historically inextricable. Hence, the attempt to leave the fate of a historically disenfranchised, formerly colonised people to “the market,” and to deride attempts by post-colonial forms of political organisation to economically and politically subsidise their populations is an ironic instance of feigned memory loss. Or is it an extreme case of reification by proponents of liberal capitalism and the free-market enterprise?

In former colonised spaces, the racial fetish of colonialism cannot be separated from the commodity fetish of capitalism; both go hand in hand. The white man, by virtue of the colour of his skin, was historically advantaged during colonial times. Concurrently, the emergence of modern capitalism in Europe, which was exported to the periphery, enabled Europe to siphon the periphery’s natural as well as human resources to enrich both itself and the white minority that lived in and governed the colonies.

Linked to the question of land in Zimbabwe is also that of the complex, dialectical identity of many white Zimbabweans. A brilliant case study of the conflicting ideas of self harboured by many members of the country’s white farming community, illustrating, among other things, the poor race relations in the country and how many white Zimbabweans haven’t worked through, or been afforded the spaces to safely work through, their colonial history, is the book The Unbearable Whiteness of Being: Farmer’s Voices from Zimbabwe by Rory Pilossof. The white Zimbabwean exhibits residues of the white settler community “which calls itself ‘liberal’,” to quote Fanon, and yet “demands nothing more nor less than twofold citizenship” while “setting themselves apart in an abstract manner.” Indeed, white Zimbabweans and their offspring have in the past held dual citizenship, of both Britain and Zimbabwe; this privilege of dual citizenship was never extended to black Zimbabweans.

As such, the impetus by the country’s black citizenry to reclaim land ought to be understood within this historical framework, which continues to affect contemporary relations. This does not mean that such an impetus is pure and not prone to manipulation and corruption, as is evidenced by Zimbabwe’s ruling elite and the corrupt systems under which the country operates today. However, it is important to recognise it as a logical impetus for formerly colonised peoples who are attempting to realise their ideas of self and being in a concrete reality. This ability to realise ideas of self and being rests on the material, on the power to self-direct resources into one’s community. Without material resources, ideas of self and community cannot become concrete or a reality. As such, the self-realisation of the peoples at the periphery cannot happen without their having access to material resources, which Africa has in abundance. Land becomes a crucial material as well as ideological symbol.

But how do the people ensure responsibility from a rogue government that is unable to move them into the future but that utilises the past as a means of keeping them in check? This is the question. The Zimbabwean state and its abuse of history as a means of self-preservation, even at the expense of the citizenry, is a case in point.

In terms of land as a metaphysical and philosophical entity, it’s interesting to note that the restructuring of land by the colonial settlers in the late 19th century was not in line with the ways in which value was allotted by the local people at that time. To quote Lawrence Tshuma in A Matter of (In)justice: Law, State and the Agrarian Question in Zimbabwe:

“an assumption, deriving from English jurisprudence, was that King Lobhengula as sovereign had proprietary title in all the unalloted land in his kingdom. As land was not a commodity among the pre-colonial people of Zimbabwe, Lobhengula enjoyed neither ultimate nor proprietary title akin to that which had emerged during the transition from feudalism to capitalism in England” (1997:14-15).

 As such, reclamation of land as a symbol of decolonisation and emancipation needs to go beyond simply replacing white owners with black owners. A “new species of man” is desired, as Fanon states. Because of the implicit ties between the racial fetish and the commodity fetish, and thus capitalism, a carefully planned and well thought out land reform programme can also be seen as an invitation to the peoples at the periphery to experiment with different forms of societal organisation. Otherwise, the kind of relations that have been going on under the racial fetish carry on, only with a different form of fetish in place that entails both the fetishised and those doing the fetishising having the same skin colour. In Zimbabwe, much of the redistribution of land has been centred on “loyalty” to the ruling party. The land reacquired via the Fast Track Land Reform Programme is mostly under the trusteeship of the government, a government that has divided its citizens into “patriots” and “sell-outs” and that reserves the right to decide who is a “true Zimbabwean” so that these individuals can be rewarded accordingly.

The land reacquired via the Fast Track Land Reform Programme is mostly under the trusteeship of the government, a government that has divided its citizens into “patriots” and “sell-outs” and that reserves the right to decide who is a “true Zimbabwean” so that these individuals can be rewarded accordingly.

At the same time, one must note that it’s difficult for the peoples at the periphery to experiment with their own forms of societal organisation. There are pressures to become part of a unified world, via globalisation. And yet, globalisation, the notion of a unified world with the West at the centre still, is the continuation and consolidation of an oppressive structure in which the majority of the black and brown peoples of the world still retain their “peripheral” stature. As such, attempts by the periphery to realise itself and experiment with social modes that may grant it some level of autonomy from the centre are always thwarted by the centre, be it via political, economic or military means. The Latin American philosopher Enrique Dussel, in his edifying treatise, Philosophy of Liberation, puts it thus:

“…imperialism cannot afford to lose the political control it exercises over peripheral countries, because it would lose markets that yield enormous profits. That is why popular liberation, the seizure of power by popular groups, threatens the very survival of the entire system of the centre, of capitalist social formation” (1985:76).

Now that Africa is the last frontier of economic expansion, in order to breed the consumer-crazed sheep of tomorrow (or today already) there is the “Africa Rising” narrative (rising on a Western narrative and on Western sensibilities and terms)—the “African” is finally a human being, but to qualify as such one must be a special kind of African, the middle and ruling class kind, who has been coopted into capitalism’s project and is able to participate as a profit maker on capitalism’s ledger. Meanwhile, those rands and shillings are ultimately going back as profits to the headquarters of the multinationals to once again enrich the centre, the Western spheres, leaving petty change at the periphery.

Can this be said to be a genuine step forward in the periphery that brings it closer to edifying its own existence and realising its own societal ideas of being and self? Clearly not. What then are the conditions that are necessary for decolonisation in Africa, and in countries such as Zimbabwe where land plays such a central role to this process? What role can land play in this successful decolonisation? How do we ensure that decolonisation is not hijacked and coopted by corrupt state mechanisations? How do we utilise our history to catapult us into a just and equitable future?


Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

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The Elephant


By Charles Hornsby

The grand bowl

For the second time in as many elections, presidential candidate Raila Odinga has taken his case to Kenya’s highest court, the Supreme Court, alleging that he was robbed of victory. Four-and-a-half years ago, he grudgingly accepted the verdict of the six judges who ruled on his petition and who dismissed every issue he raised. Their written judgement has been excoriated across the globe for its shaky reasoning and privileging of procedure over substance. So, can Raila expect the court to be any more inclined to give him a better hearing this time?

There are significant differences between the current and the 2013 Supreme Court. By 2013, the court had already lost its Deputy Chief Justice, Nancy Baraza, to an ill-advised public altercation with a security guard reportedly involving nose-grabbing and admonitions to “know people”. The obvious effect of this was the risk of a hung court, with three justices voting each way, a situation that appears unforeseen and unaddressed by our constitution. Thus this may have been a significant consideration for the relatively young court and may have contributed to the absolute unanimity of the 2013 decision.

The 2013 judgement was a kick in the teeth, not just for the Raila campaign, but for the 2010 constitution and many of the progressive principles underlying it. And, as lawyer Wachira Maina described it, the judgement was “both detailed and important, but the parts that are detailed are not important and those that are important are not detailed.”

This time, however, the full complement of seven judges is available. However, it not the same bench. Two of the judges who heard the first petition have since left the court, some of them kicking and screaming and at least one under a cloud of suspicion. Kalpana Rawal, who replaced Baraza as the Deputy Chief Justice, promptly sued her employer, the Judicial Service Commission (JSC), to try and avoid being forced to retire at the age of 70, as specified in the constitution. It became an unseemly, farcical case that made its way to the Supreme Court, where she sat as a judge and which was riddled with conflicts of interest – some of the judges were themselves due to retire; others, such as the Chief Justice Willy Mutunga, were members of the JSC.

At the same time, Justice Philip Tunoi, who was among the Supreme Court judges fighting to forestall retirement, found himself embroiled in accusations of having taken a Sh200-million bribe in a petition against the election of Nairobi Governor Evans Kidero. A tribunal appointed by President Uhuru Kenyatta (following the JSC’s recommendation) to look into Tunoi’s suitability for office, however, had to wrap up its investigations prematurely after he was compulsorily retired by the recusal of Mutunga and Justice Smokin Wanjala from the Rawal case, which left no quorum.

Further, the court’s privileging of procedural rules rather than the substance of the dispute, as when it threw out Odinga’s 800-page affidavit that contained the meat of his case, as well as its reliance on questionable precedents from Nigeria (not exactly a bastion of democracy), also represented a huge step backwards.

Although only four veterans of the 2013 petition remain, it is unclear whether the court has recovered from the largely self-inflicted wounds to its credibility. Further, there is one sense in which the Supreme Court is itself constitutionally illegitimate. And that is because its composition falls afoul of the constitutional principle that “not more than two-thirds of the members of elective or appointive bodies shall be of the same gender”. As it stands today, five of its seven judges are men, which is more than two-thirds. This, therefore, raises the question whether the court can enforce a constitution it so blatantly violates.

Another example of unconstitutional conduct by the court is the fee it has imposed for the filing of a petition. The Constitution is clear that “the State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.” Yet the Supreme Court requires that anyone exercising the right to challenge the presidential election pay a fee of Sh500,000 and deposit a further Sh1 million with the court as security for costs. Although this may not be much of an inconvenience to the super-wealthy NASA principals, in a country with an average annual per capita income of Sh100,000, it clearly “impede[s] access to justice” for the vast majority of the population.

However, there is another legacy of the first court that the current one still has to overcome, and that is the legacy of the 2013 judgement itself. In many ways, if it is to deliver a credible judgement, the court will have to confront and correct the deficiencies of that judgement. As Odinga said, it is an opportunity for redemption.

The 2013 judgement was a kick in the teeth, not just for the Raila campaign, but for the 2010 constitution and many of the progressive principles underlying it. And, as lawyer Wachira Maina described it, the judgement was “both detailed and important, but the parts that are detailed are not important and those that are important are not detailed.”

Importantly, the court subverted the idea of accountability by placing onerous burdens on the petitioners, rather than on the state, to prove what went wrong. This cannot be how the constitution conceptualised citizens’ relationship to the government. It generally should be enough for citizens to show that there is good cause for them to be suspicious of the state and up to the latter to demonstrate that what it did was both legal and proper.

The constitution was the culmination of a decades-long struggle to, in the words of John Harrington and Ambreena Manji, “tame the Kenyan Leviathan”, the authoritarian colonial state that had survived independence and nearly every attempt since to reform it. Throughout, the courts had been a central pillar in protecting the state from the people, almost always deferring to the wishes of the executive. “This deference was manifest, sometimes in outright bias, more often in a resort to procedural rules, denying citizens standing to hold the authorities to account.” The 2010 constitution was meant to reverse the concentration of power in the national executive and to make it more accountable. However, “rather than taming Leviathan the tendency of the [2013] decision has been to restore several of its key features.”

For example, the standard of proof established in the decision was onerously high. As Manji and Harrington stated, “All told, the Court has presented petitioners in presidential cases with almost insuperable obstacles of proof. The judgment casts them in the role, not of concerned citizens pursuing good governance, but as hostile prosecutors, charging the executive with culpable incompetence or serious criminal conduct and required to prove all elements of their case to the highest standard more or less… The effect of Court’s ruling in the immediate context is to insulate both the IEBC [Independent Electoral and Boundaries Commission] and the candidate which it declares to have won on the first round from effective challenge in almost all cases.”

The court also appeared to require that Odinga and his fellow petitioners not only prove that there were irregularities in the election, but also that, beyond reasonable doubt, without these irregularities, he would have won. As Maina notes, “The law as borrowed from Nigeria, combined with the new standard of proof, leads to this absurd result: Mr. Odinga could show that the irregularities were so gross that everything about the election is in doubt [but that] would not necessarily be to his benefit.” If the election was so impugned that one could not prove beyond reasonable doubt who won, “the result announced by IEBC would stand. This, surely, cannot be good law.”

Importantly, the court subverted the idea of accountability by placing onerous burdens on the petitioners, rather than on the state, to prove what went wrong. This cannot be how the constitution conceptualised citizens’ relationship to the government. It generally should be enough for citizens to show that there is good cause for them to be suspicious of the state and up to the latter to demonstrate that what it did was both legal and proper.

Odinga will be taking his case to the people, whose judgement will matter much more than that of the judges. There, burdens will be reversed. It will be the IEBC and Kenyatta on trial; they will have to demonstrate the propriety of their actions and, thus, of their claim to legitimacy.

Further, the court’s privileging of procedural rules rather than the substance of the dispute, as when it threw out Odinga’s 800-page affidavit that contained the meat of his case, as well as its reliance on questionable precedents from Nigeria (not exactly a bastion of democracy), also represented a huge step backwards.

Even the delivery of the judgement itself was wanting, with Chief Justice Mutunga opting not to read all of it in open court but rather delivering the verdict with a promise to avail the reasoning behind it within a fortnight. It thus seemed like either the judgement was too embarrassing to read out in its entirety or that the verdict came first and the reasoning later. The seeming privileging of unanimity also meant that the judges did not contribute individual judgements and thus we were unable to interrogate their individual reasons for coming to the conclusions that they did.

The rub of it is that, if followed, the precedent set by the 2013 decision virtually guarantees that the court will never reverse the IEBC’s declaration of a winner in the presidential election, especially not if that declaration is made in the first round. It is thus exceedingly unlikely, though obviously not impossible, that the second Odinga petition will fare any better than the first. However, that does not mean it is an exercise in futility. For there is another, much more important court he will be presenting his evidence to.

If the last time is anything to go by, every word of the proceedings will be broadcast to an attentive audience of millions of Kenyans. Odinga will thus be laying out his evidence not just for the benefit of judges in the sanitised environment of a court room but also to the fervent, anxious, speculative and intensely polarised country beyond. Odinga will be taking his case to the people, whose judgement will matter much more than that of the judges. There, burdens will be reversed. It will be the IEBC and Kenyatta on trial; they will have to demonstrate the propriety of their actions and, thus, of their claim to legitimacy.

He will not only dispense with the easy and thoughtless monikers, such as “perennial loser”, but will in the process fatally undermine Kenyatta’s authority. His petition will thus provide the necessary oxygen for any campaign of civil disobedience and peaceful protest that he may be inclined to pursue in a bid to either recover his rights or to push for further reform.

Legal declarations can bequeath power, but only the people can offer legitimacy. And it cannot be coerced out of them, whether through beatings, intimidation or even murder. It can only be given voluntarily. The election is just a way of attempting to entice it out of them. But for too long, the state has violated the bargain and tried to subvert the will of the people by stealing elections. In his testimony before the Senate last year, Samuel Macharia, the owner of Royal Media Services, the country’s largest TV and radio network, said he had evidence that every presidential election in the multiparty era, except the 2002 one, had been stolen.

So, while winning the election has some value, the legitimacy it is said to confer is dubious at best. By appealing directly to the people, Odinga will be seeking their endorsement to erode Kenyatta’s. If he succeeds, regardless of whether the Supreme Court still rules against him, his legacy will be secure as “The People’s President”. He will not only dispense with the easy and thoughtless monikers, such as “perennial loser”, but will in the process fatally undermine Kenyatta’s authority. His petition will thus provide the necessary oxygen for any campaign of civil disobedience and peaceful protest that he may be inclined to pursue in a bid to either recover his rights or to push for further reform.

And even though, like his father, Odinga never got to govern the neocolonial Kenyan state, his struggle in the Supreme Court will further undermine the state’s legitimacy and bring Kenya closer to the day when it is eventually overthrown.


Published by the good folks at The Elephant.

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The Elephant


By Charles Hornsby

The grand bowl

Confronted on his excesses, abuses and disregard of rights of the people of France, Louis XVI responded, “L etat c’est moi”, “I am the State”. That was in 1715. Louis was tried by the people and executed. Four centuries later, Zaire’s Mobutu Seseko repeated Louis’ “royal liturgy” to a French journalist. Mobutu went further; he pronounced himself God. Mobutu fled and died in exile.

Entitlement is a malaise that afflicts absolute rulers. It thrives where law is what the ruler decrees it is; not the people, through their Courts. Where the peoples’ sovereign franchise prevails, and truth, justice and the rule of law governs the affairs of man, there is tranquility.

World attention today focuses on the Supreme Court of Kenya. The Court will, for the second time in a row, hear and rule on whether President Uhuru Kenyatta was validly elected for a second term. Just as in 2013, the suitor is former Prime Minister Raila Amolo Odinga. Raila says he has “given the Court a second chance to redeem itself.”

On 13th August, Raila protested the declaration of Uhuru as winner, accusing the Independent Electoral and Boundaries Commission (IEBC) of subverting the will of the people, not once, but for the third consecutive time and substituting it with the dictate of a minority ruling elite.

Having initially vowed not to contest it in Court, but rather through other means, he claims that a crackdown on human rights organizations expected to do that necessitated the change of tact.

What is Raila’s case? How did Kenya end up here? Is there cause for concern or alarm on the Court? Will the Court decide otherwise than before and with what consequences?

Case summary

The petition claims that “the Presidential Election was so badly conducted and marred with irregularities that it does not matter who won or was declared as the winner of the Presidential Election…Instead of giving effect to the sovereign will of the Kenyan people, the IEBC delivered preconceived and predetermined computer generated leaders.”

The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).

Whereas people voted, the IEBC did not count and tally the results. It adopted Joseph Stalin’s principle, “It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.”

Evidence in support of the case is contained in a voluminous record of over 25,000 pages. The evidence supports 12 main issues.

The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).

KIEMS is a single unit electronic platform. It was intended to ensure that voters are biometrically identified, and polling results transmitted and declared in a simple, accurate, verifiable, secure, accountable and transparent manner. These tenets of a free and fair election are anchored in the Constitution and the 2017 amendments to the Elections Act.

It is alleged that the IEBC had, through a proxy, sought to declare unconstitutional the law that requires biometric voter identification and electronic transmission of results from polling stations to the Constituency Tallying Center and the National Tallying Center. The case was filed by a third party against the IEBC but through a lawyer who is on the advisory panel of the IEBC.

Though not determined at the time of the elections, Raila believes that the case was filed with the connivance of the IEBC to sabotage the integrated, electronic electoral management system. He claims that the manipulation of the system resulted in a permanent pre-set 11% margin between him and Uhuru. It is Raila’s position that the outcome of the case would, as did the manipulation of the system, countermand the requirement for finality of results declared at 290 Constituencies established under the Constitution.

The finality of Constituency results was affirmed by the Court of Appeal. It would remove the risk of rigging at the National Tallying Center as recommended by Judge Johann Kriegler in his report following the disputed 2007 elections.

The ETAC’s function was to advise on adoption and implementation of election technology. It entailed the participation of stakeholders, in this case, candidates and political parties in the elections. In a Judgement made on 15th June, 2017, the High Court held that the requirement for a professional audit of the voter register 6 months before the election was overtaken by events. The Court further declared unconstitutional, the law establishing ETAC.

It is Raila’s complaint that being a stakeholder he ought to have been notified of the proceedings leading to the disbandment of the ETAC and that the IEBC intentionally failed to defend the case properly. As a result, the disbandment compromised the transparency of IEBC’s preparation for the elections. The IEBC then monopolized the management of the electronic voter system to the exclusion of other players. This, it is claimed, enabled manipulation in the transmission of results that could not be independently verified.

The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation.

Raila claims that 2 days to the elections, the IEBC designated 11,000 polling stations outside 3-4 G network coverage. There was not sufficient notice or time for Raila to appoint his agents in those stations. Results from those stations account for over 7.7 million votes and cannot be verified in the manner prescribed by law and intended by KIEMS.

The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation. The murder of IEBC’s ICT Manager Chris Msando a few days to the election is claimed to have been planned. His password or information obtained from him were used to infiltrate KIEMS, create and relay computer generated results.

Uhuru is accused of unduly influencing and inducing voters with 2007/2008 post-election reparation payments, hurriedly launched projects and advertisement of his administration’s achievements. He is said to have intimidated voters in his campaigns with military deployments and outright threats on public servants. A widely publicized incident in Makueni where Chiefs were threatened is cited. Uhuru is alleged to have used state resources and State Officers, in particular Cabinet Secretaries, to actively solicit for votes contrary to law.

Raila’s agents are also said to have been ejected from polling stations in Central Kenya and Rift Valley. It is claimed that they were replaced by those procured by Uhuru’s Jubilee Party. Massive manipulation of results is claimed to have ensued as a result.

KIEMS was designed to transmit results from polling stations to the Constituency and the National Tallying Centers simultaneously with electronic images of Forms 34As. It would also enable electronic transmission of final results from the Constituency level to the National Tallying Center. Form 34A is the official declaration at the polling stations whilst Form 34B is for the Constituency declaration.

However, provisional results are alleged to have been transmitted from polling stations to the National Tallying Center, bypassing the Constituency Tallying Centers. The results were not accompanied by Forms 34A and 34B. The results were said to be provisional, again, in disregard of the Court of Appeal decision. 10,000 stations with 5 million votes were affected. The complaint by Raila is that this was a precursor to the rigging of the election in favour of Uhuru.

Further, the petition claims that scrutiny of spoilt and rejected votes would reveal that nearly 400,000 votes were deducted from Raila and added to Uhuru. It is alleged that the manipulation and doctoring of Forms 34A and 34B means another 7 million votes cannot be authenticated.

Raila states that the declaration of a winner was made prematurely in the absence of 11,883 supporting Forms 34A and 187 Forms 34B. 3.5 million votes are affected. He also wants the Supreme Court to go against the precedent it set in 2013 and have rejected votes, this time numbering 477,196 or 2.6% of votes cast, considered when ascertaining whether the Constitutional threshold of 50% plus 1 has been crossed.

The great trek

Kenya gained internal self-rule and political independence from the then British Empire 5 decades ago. The Union Jack quickly came down. The Kenyan flag was hoisted. Jomo Kenyatta was appointed Prime Minister by the colonial Governor-General and one year later declared President by parliament. The Lancaster Constitution did not provide a term limit for the Presidency. The leader of the dominant political party was appointed President by acclamation in periodic parliamentary elections, whose occurrence he controlled. Kenyatta being the leader of the Kenya National African National Union (KANU) party would rule for life, for 15 years. Kenyatta was succeeded by Daniel Arap Moi. Moi ruled for 24 years; 14 for life and 10 on a 5 year term.

In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda.

The British had an elaborate law for periodic election of their Prime Minister back at home. They saw no need for the same in Kenya, or any of their former colonies which did not have established political systems in place. With the exception of India, which embraced democratic rule at inception, former British colonies suffered absolute leadership until after the collapse of the Soviet Union and the second liberation in the 1990s.

In the intervening period, a change in government in the Commonwealth was effected in two ways only; a coup or the natural or unnatural death of the President. Determinations by Courts on the legitimacy of the regimes were unheard of.

In Uganda, Judges declared unconstitutional the government of Idi Amin upon the overthrow of Milton Obote. They were killed on the same day. Whitehall often supported similar governments in the entire Commonwealth. Without periodic elections, there was no precedent for a Presidential Election Petition.

The clamor for change saw to the re-introduction of multi-party politics in 1992. Moi won the Presidential Election despite a determined opposition wave. A Petition by Kenneth Matiba was dismissed by the High Court and Court of Appeal without a hearing. The requirement for personal service upon Moi and signature of the Petition by Matiba, who could not because he was ill, were technical considerations relied upon by the Courts. A petition by Mwai Kibaki upon Moi’s re-election in 1997 suffered the same fate. The Courts had no semblance of independence. The President controlled the Courts. A Petition against his election was doomed to fail.

The 2003 election of Kibaki was not challenged in Court; it was not even disputed. Kibaki had defeated Uhuru with a landslide victory. Uhuru had largely been viewed as Moi’s project. The people had resolved to overrule Moi’s prophesy that the independence party, KANU, would rule Kenya for 100 years.

Kibaki’s re-election in 2007 was highly disputed. It is widely believed to have been stolen from Raila. Raila did not go to the Courts as they were controlled by the President. The post-election violence that ensued resulted in the unhappy marriage between Kibaki and Raila. One outstanding achievement of the Grand Coalition Government was the promulgation of the 2010 Constitution. An elaborate process for the period election of the President and determination of a dispute arising from the election was put in place. The Supreme Court was created specifically for this function, with a minimum of 5 and maximum of 7 Judges as quorum.

In the aftermath, radical changes in the Judiciary sent packing Court of Appeal Judges who presided over the Petitions by Matiba and Kibaki. This was a pointer to the Supreme Court that the issue of election of the President was not that simplistic and legalistic. It is one that must be considered on the wider public interest, to uphold the popular will of the people and the Constitution.

In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda. These countries, unlike Kenya, had experienced the full brunt of authoritarian military rule. Their Courts could not be objective. In fact, this was the first time a Kenyan Court took refuge in decisions from such countries.

The 2013 decision set an unreasonably high standard and burden of proof. It was not different from Matiba and Kibaki earlier decisions. The legal fraternity in Kenya and worldwide has condemned, trashed and shelved it as bad law. The Supreme Court could be forgiven for arriving at the decision since the Constitution was nascent and barely 2 years old. The Court itself was only a year old. Though composed of highly learned minds, three of the Judges, including the President of the Court, were in their novitiate, having been appointed from outside of the Judiciary and with limited or no courtroom experience at all. This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.

This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.

The Supreme Court’s image has since then been dented by credibility concerns. Unconcluded investigations for bribery involving one of the Supreme Court Judges demonstrated that the Court was susceptible to manipulation and compromise. It does not better the case when two Senior Counsel who accused the Judge, as well as an Advocate who was alleged to have conveyed the bribe as well as the Judge’s Advocate, a senior counsel, will act together for some of the parties in the current Petition.

That thwarted attempts by President Kenyatta to have a final say in the appointment of the Chief Justice, who is the President of the Court, publicly played out during the retirement case for two of its Judges, both matters again involving the three Senior Counsel cannot be overlooked. In his election campaigns in Kisii, Uhuru recently stated that he had appointed their son the Chief Justice. The Judicial Service Commission quickly refuted this claim and reiterated its independence from the Presidency. It was too little too late. The damage had already been done and aspersions cast. There is therefore, profound merit in Raila’s call for redemption.

Collective success or failure of the Court

The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them. Several Judges of the High Court and Court of Appeal recused themselves from pre-election cases. They did so out of fear or to escape the badge of bias.

A bench to hear the case by Raila’s coalition, seeking that the election be conducted solely on an electronic basis, the IEBC having failed to make regulations for a manual back was constituted of Judges outside the Constitutional Division of the High Court. The Presiding Judge, Odunga had been accused by Jubilee Party of being compromised to rule in favour of the opposition. The Judge and his other two colleagues in the Division would not feature in subsequent benches set up by the Chief Justice. At the Court of Appeal, three Judges recused themselves on account of their handling of previous electoral cases, real or perceived relations with some of the Advocates or the parties. The outcome is the same. It is an indicator that Courts could still be subject to accusations of manipulation from litigants.

The Supreme Court suffers a numerical disadvantage. It has 7 Judges, all of whom may sit, going by the precedent of 2013. Whereas 5 Judges constitute quorum, it is unlikely that the earlier precedent will be departed from. None can be recused on account of bias, compromise, relations or affiliations with the parties or their advocates. It is, however, troubling that most of these Judges share Advocates with the parties appearing in the petition. It is very untidy. Suspicions of possible bias and compromise cannot be dismissed. This calls for extra caution and vigilance.

There is a popular view that the Judges should declare their interests if any and possible conflict. The Judges should write their individual decisions. Indeed, that is the practice in the Commonwealth. It was the practice adopted by the Court of Appeal until recently, when it appears to have been abandoned. The only way to ensure judicial fidelity and interrogate judges’ Jurisprudential Quotient, is to test their individual decision-making abilities. They should not hide in the cocoon of collective success or failure. This conduct amounts to judicial laziness.

Repeat performance or improvement?

Approval and dismissal of merits of the petition is as varied as is the public support for Raila and Uhuru. Raila’s side perceive a strong case, better than the first one. Uhuru’s team consider the case much weaker. Viewed objectively, it is a case of desire for justice on the part of Raila and one of a sure win on the part of Uhuru. This is likely to play out in Court.

The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them.

The only difference between a Presidential Election Petition and a National Assembly Election Petition is the volume. A Presidential Election is held in all 290 Constituencies. Intriguingly, the Petition must be heard and determined in 14 days. The other Petitions are heard and determined within 6 months.

The Supreme Court does not have the luxury of the High Court. It cannot recount, scrutinize and audit results from all 290 Constituencies. A decision must be based on pillars of “a free and a fair election”. International and national public policy must play a role also. The Supreme Court is empowered to depart from its previous decisions depending on the circumstances of the case or change in public policy. It is a delicate balance, but one that can be attained with a National Assembly Election Petition as a simulator.

Interference with KIEMS to transmit and project provisional results or to generate results contravened the Constitution. Such action would have gone against the decision of the Court of Appeal, in respect to the finality of results declared at the Constituency Tally Center. Publication of achievements, use of state resources and threats by a party to an election are election offences. Some of the State Officers are being investigated for possible prosecution. Uhuru’s election could be nullified on account of the election offences by his administration.

Massive inconsistencies and discrepancies of results in Forms 34A and 34B and in the IEBC portal could be indicative of manipulation towards a flawed electoral process. The 5 to 7 million votes claimed to have been affected is such a huge number that cannot be ignored. This limb of the case may be very strong on the fidelity of the electoral process. The demanded forensic examination of IEBC’s server and portal would establish whether there is a case. It remains to be seen how the Court will undertake a detailed examination of evidence within 14 days and order scrutiny and recount of votes to verify the numbers. If it does, the truth or falsity of Raila’s claim will unfold. The hasty announcement of the winner without the benefit of Forms 34B and before the completion of the tally, affecting over 3.5 million votes is a grave violation. The case seems to be strong on this limb.

The Supreme Court is not handicapped on precedent in the decision to be made. Resort to decisions from other countries alone is unnecessary. There are many locally decided cases that may be of guidance to the Court. Being a Court of law as well as public policy, numerous cases, not necessarily in respect to Presidential Election Petitions are available internationally and locally.

For example, the election of the Member of Parliament for Juja Constituency was challenged in the disputed 2007 General Election. The declared winner was the Chief Government whip for Kibaki’s wing in the Grand Coalition Government. Malpractices in the election mirrored those leveled against the election of Kibaki. The then Electoral Commission of Kenya was accused of subverting the popular will of the people and replacing it with a pre-determined choice of the ruling elite. The inconsistencies and manipulation of the declaration of results was so monumental that the election could not be sanitized by either a scrutiny or recount of the votes. The entire process was flawed. The election was therefore annulled.

The High Court pronounced itself thus; “One may ask why courts should hold an electoral body to a high standard in the performance of its duties. I think if there is any statutory body whose actions should be considered to be above the board and which should perform its duties to the required standard of integrity and probity, it should be the electoral commission. The electoral commission has a duty to inculcate and imbue confidence in the electorate that its process is transparent, free and fair.” Raila’s claim of manipulation of the entire electoral process would be based on principles set out in this decision. If the process is flawed, numbers or margin of difference between two candidates does not matter. The election may be invalidated without the need for scrutiny or recount of the votes.

 Of the election petitions subsequent to the 2013 elections that of Mathare Constituency attained distinction, in electoral law. The winner was from Raila’s Orange Democratic Movement. The loser, from Uhuru’s The National Alliance had been awarded the certificate. The High Court dismissed the petition. It held that results declared at the Constituency are not final and may be altered by the Chairman of the IEBC.

When called upon to review the issue, the Court of Appeal affirmed the finality of the declaration at the Constituency as the will of the people. The Court of Appeal held that it could not declare the claimant winner and directed that fresh election be held.

The dispute found its way to the Supreme Court. The decision by the Court came fast, crisp and sharp; “Apart from the priority attaching to the political and constitutional scheme for the election of representatives in governance agencies, the weight of the people’s franchise-interest is far too substantial to permit one official, or a couple of them, including the Returning Officer, unilaterally to undo the voters’ verdict, without having the matter resolved according to law, by the judicial organ of State.” The case supports Raila’s plea on finality of results declared at the Constituency level and fidelity of the process attendant to the declaration. It also buttresses the position in law that the IEBC cannot subvert the popular will of the people and replace it with that of a ruling elite.

That the petitioners in the two cases referred to won the by-elections that followed goes a long way to demonstrate how the electoral process can be subverted to defeat justice.

The complaint of use of State Officers and resources for campaign is one that Uhuru will be hard put to defend. It is well documented and publicly known. There is evidence in the Petition that the entire Government machinery from top bottom was deployed to campaign for Uhuru with threats to those perceived to rally behind the opposition. These events were concentrated within the campaign period and cannot be said to have been part and parcel of normal Government administrative duties.

The Public Officer Ethics Act and the Election Offences Act prohibit State Officers from engaging in politics, yet these Officers actively campaigned for Uhuru and defended their actions as part of Government business. Prohibited also is the advertisement of achievements for political gain. Raila has a strong case on this ground, supported by precedent.

The election of Moses Wetang’ula as Senator for Bungoma in 2013 was invalidated by the High Court. The decision was upheld by the Court of Appeal and the Supreme Court. The Courts found that the offences of bribery and voter treating had been proved and were sufficient to warrant the annulment of the election. In the words of the Supreme Court, “Moreover, we take judicial notice of the centrality of elections in the functioning of established governance bodies, as signaled by the Constitution in both general and specific terms. On that principle alone, a party found on fact to have befouled the electoral process, cannot maintain an argument that his or her offence may not be declared, save alongside that of other parties.” If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.

If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.

The case by Raila will have to be examined on the basis of these principles. If established, the Supreme Court would order a fresh election. The case could be dismissed if the evidence does not support the complaints before the Court.

The Austrian Court overturned results of election in which Alexander Van der Bellen narrowly beat far-right candidate Norbert Hofer for electoral malpractice. A South Korean court removed the President from office for abuse of office. The Brazilian senate impeached Brazilian President Dilma Rousseff for illegally manipulating government accounts. The Pakistan Supreme Court stripped the Prime Minister of his office, for corruption. Here in Kenya, former Deputy Chief Justice Nancy Baraza was removed from office for misbehaviour for merely pinching the nose of a security guard. The bar on integrity has been set high locally and internationally. The Court may be persuaded to use these out of court processes in arriving at a decision.

A majority of Kenyans feel that a minority ruling elite has since independence, acting through unlawful means, denied other regional and ethnic communities the legitimate opportunity to rule. That feeling may prevail, irrespective of whatever legally acceptable or meritorious outcome is to be made by the Court. It may be high time that a rotational presidency, on the basis of the 8 main regions or provinces Kenya was demarcated and administered from independence, is considered, if the law of winner takes it all will forever be used or abused.

The Supreme Court has many references for direction in determining whether the popular will of the people of Kenya was ousted. Its decision must be based, not only upon evidence and the law, but international and national public policy. “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws”, said Plato. The Court must ensure that leaders act responsibly, without circumventing the law.


Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Follow us on Twitter.


The Elephant


By Charles Hornsby

The grand bowl

Kenya is facing two post-election crises. Both are related to the Jubilee administration’s failure to adhere to the Constitution’s provisions on the inclusion of women in leadership. The first is regarding the validity of the Supreme Court as a legal body. The Supreme Court was created in Article 163, which along with Article 27(8), define its membership both numerically and in terms of gender; it is compliant numerically but violates the provisions of Article 27(8) on gender. The second crisis relates to the constitutionality of the 12th Parliament, which violates Articles 27(8) and 81(b) on gender as well as Article 3, which explicitly provides that any attempt to establish a government “otherwise than in compliance with the Constitution is unlawful”.

There have been numerous appeals by various actors to the National Super Alliance coalition (NASA) to submit their dispute regarding the presidential election to the Supreme Court. None of these actors, including those from local human rights organisations or even NASA itself, have cited the illegal composition of the Supreme Court and the challenge that poses to a legal resolution of the presidential election dispute.

There have been numerous appeals by various actors to the National Super Alliance coalition (NASA) to submit their dispute regarding the presidential election to the Supreme Court. None of these actors, including those from local human rights organisations or even NASA itself, have cited the illegal composition of the Supreme Court and the challenge that poses to a legal resolution of the presidential election dispute.

By overlooking the basic issue of the legality of the Supreme Court, these actors obfuscate the actions of the Jubilee administration prior to the election that have resulted in an illegally constituted Supreme Court and the current crisis. By their silence, these actors are asking the public to ignore the violation in terms of the Supreme Court’s membership, and to trust that the very law and constitution the Supreme Court itself is violating will be applied fairly to a presidential dispute with far reaching socio-political ramifications. This glossing over of violations of the law when it is convenient, and especially when it is engineered by the administration in power, is dangerous because it subverts the foundational principle of the Constitution as provided in Article 1: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.”

The Supreme Court of Kenya as a body, and its members as individuals, are subject to the Constitution. Article 2(2) of the Constitution provides for the supremacy of the Constitution and pronounces its application on all persons and both levels of government and clarifies that: “No person may claim or exercise State authority except as authorised under this Constitution”. Article 3(2) buttresses Article 2 and on it rests our entire system of governance. It states: “Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.” Article 27(8), commonly referred to as the Gender Principle, establishes a further requirement on the Supreme Court as an appointive body; it provides that “not more than two-thirds” or 67% of its members, may be of the same gender.

The first major post-election crisis, therefore, is that the Supreme Court is operating outside the Constitution. Technically and constitutionally, this means that either party can legally disregard whatever decision the illegally constituted Supreme Court reaches.

The Supreme Court was reconstituted in 2016, and despite the likelihood of a disputed presidential election, three vacancies were filled by one woman and two men. The Supreme Court is numerically compliant with seven judges (five men and two women); however, the majority gender comprises 71%, an obvious violation of the Gender Principle. As such, the Supreme Court, as currently constituted, is an unlawful attempt to exercise state authority outside of our supreme law. This is a big deal for the apex court. It is also not an illegality that the Supreme Court can cure itself of without violating Articles 2 and 3 of the Constitution.

At the time of the Supreme Court’s reconstitution, the Jubilee administration was already on notice as they were facing a court challenge for violation of the Gender Principle in the constitution of the cabinet. During the recruitment and selection process, women’s rights advocates and institutions like the National Gender and Equality Commission (NGEC) urged the Jubilee administration and male applicants to the Supreme Court to comply with the Constitution, but as is usual on matters of law that relate to women’s inclusion, their calls were ignored. The first major post-election crisis, therefore, is that the Supreme Court is operating outside the Constitution. Technically and constitutionally, this means that either party can legally disregard whatever decision the illegally constituted Supreme Court reaches. It also means that as a nation we are increasingly operating outside of the law.

The lack of sincere reflection on this fundamental violation also has the effect of questioning women’s citizenship by silencing women and by affirming that women’s illegal exclusion from positions of leadership is acceptable and that their rights are a secondary priority. This is the precise attitude that got us into this mess in the first place.

Acceptance of an illegally constituted court requires that we ignore the violation of the Constitution by the government, because as some will argue, this “minor” illegality merely relates to gender. The lack of sincere reflection on this fundamental violation also has the effect of questioning women’s citizenship by silencing women and by affirming that women’s illegal exclusion from positions of leadership is acceptable and that their rights are a secondary priority. This is the precise attitude that got us into this mess in the first place. Article 27(3) provides for the equality of men and women, and Article 27(8) was designed to provide no escape from the inclusion of women at a minimum level. Almost a decade after the promulgation of the Constitution, what excuse is there for the blatant violation of Article 27(8)? Who benefits from these systematic violations?

The second post-election crisis is upon us this week with the swearing in of the 12th Parliament scheduled for August 22nd 2017. Based on data from the Independent Electoral and Boundaries Commission (IEBC), Parliament’s membership falls short of the legal requirements of the Constitution in Articles 27(8) and 81(b), as more than two-thirds of the Members of Parliament (MP) are male. This situation was not unexpected. In Advisory Opinion 2 of 2012, the Supreme Court ordered that Parliament must enact a law to implement article 81(b) on the Gender Principle by August 27, 2015. Despite the Supreme Court decision and at least two other High Court decisions in 2015 and 2017, the 11th Parliament, on three separate occasions, failed to pass a law implementing Article 81(b), which states that “not more than two-thirds of the members of elective public bodies shall be of the same gender”. Again, business and religious leaders were silent, as were most politicians. The international community expressed their dissatisfaction with these repeated violations of the Kenyan Constitution to exclude women by having António Guterres, the then newly elected Secretary-General of the United Nations, celebrate the International Women’s Day in Kenya.

In Advisory Opinion 2 of 2012, the Supreme Court ordered that Parliament must enact a law to implement article 81(b) on the Gender Principle by August 27, 2015. Despite the Supreme Court decision and at least two other High Court decisions in 2015 and 2017, the 11th Parliament, on three separate occasions, failed to pass a law implementing Article 81(b), which states that “not more than two-thirds of the members of elective public bodies shall be of the same gender”.

On March 29th 2017, in a case brought by the Centre for Education Rights and Awareness (CREAW) and CRAWN Trust, the High Court issued a judgement that gave Parliament 60 days to enact a law on Article 81(b), failing which any person could petition the Chief Justice, and pursuant to Article 261(7), “the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.” Parliament did not comply. This means that Parliament and the Jubilee administration went into the 2017 general election fully cognisant of the risk of dissolution of a newly elected 12th Parliament. By August 18th at least two separate cases have been filed challenging the validity and constitutionality of the 12th Parliament; the first by CREAW and CRAWN Trust and the second by the International Federation of Women Lawyers (FIDA).

The cavalier disregard for constitutional principles and judicial decisions by Parliament must concern all Kenyans, because it attempts to restructure our system of governance by destroying the principle of equality of the three branches of government, negating the principle of separation of powers and exempting the executive and legislature from compliance with the Constitution and judicial decisions.

Kenyans must demand higher standards regarding fidelity to the law from the elected leadership, as well as from the business, religious, human rights and international community who claim to speak for law and peace. We went into one of the most expensive elections in history with the seeds of at least two post-election crises that could have been averted with appropriate action by the government. Additionally, in both cases, the same leadership class was silent about the violations of the law and the risks these violations posed to Kenya.

Whether from ignorance, ineptitude or misogyny, the silence and complicity of these groups means that they lack the moral credibility to offer non-partisan leadership to Kenyans. The current administration’s de facto policy of violating the Gender Principle, and the acquiescent brand of leadership practised by the business and religious community, are largely to blame for our current situation.

Whether from ignorance, ineptitude or misogyny, the silence and complicity of these groups means that they lack the moral credibility to offer non-partisan leadership to Kenyans. The current administration’s de facto policy of violating the Gender Principle, and the acquiescent brand of leadership practised by the business and religious community, are largely to blame for our current situation.

What can we learn from these crises? First, that a crisis starts small but its grows from minimising, silencing and dismissing dissent much like we are doing now; second, that the Constitution will be undermined from unequal application of the law especially on unpopular provisions, such as the Gender Principle; and finally, we aren’t out of the woods yet and will not be if, as citizens and leaders, we do not demand greater fidelity to the Constitution and to the law.

We are at a crossroads as a nation. This is about significantly more than the presidential election; it is about whether we, especially the government, will accept to be governed and guided by the Constitution of Kenya 2010 or whether we want to precipitate further political instability by breaking the legal and moral compact we agreed to as a nation on August 27, 2010.


Published by the good folks at The Elephant.

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The Elephant


By Charles Hornsby

The grand bowl

While the elections that took place in Kenya this month have played out like the latest episode in a familiar political drama series, the global and regional backdrop has continued to change. The pace of transformation is increasing, the big picture is blurred, and although the 2013 cocktail of ethnic alliances remained unchanged in 2017, the winners of the contest will be governing in a world that is significantly different from the one in 2013.

There was a time when Kenya’s developmental partners presented a united front when dealing with the government of the day, especially during ruptures like the 2007-2008 post-electoral violence. Now the Western donor frontline is fragmented and China’s growing influence is based on a different geopolitical optic. The Chinese are providing a financial alternative to the hegemony of the Bretton-Woods institutions, but with a different local cost-and-benefit equation.

The Donald Trump disengagement factor should be a significant concern for a country like Kenya, but it is not likely to materialise on the scale initially anticipated. Two-thirds of the American public still supports foreign assistance even though they think their largesse is much larger than it actually is. Renewed growth and the Merkel-Macron axis are now stabilising forces of populism that were never absent but less visible within European Union nations. While the UK sorts out the Brexit problem that induced Theresa May’s awkward flirtation with Donald Trump and his proposed special trade relationship, the EU will provide a useful counterbalance.

Otherwise, all is quiet on the Western donor front, at least for the time being, as the host of international election observers in Kenya have just confirmed. In any case, Kenya’s foreign policy wonks have been adjusting to the transition to a multipolar international order for over two decades. This process remains on course, while Kenya’s geopolitical location reinforces the multilateral status quo that includes reducing levels of external donor support. That this foreign policy did not feature prominently in the campaigns is indicative of its relative priority in the larger scheme of things.

There are still important issues waiting to be addressed, as David Mondo pointed out in a recent article on the subject, including the rebalancing of relations with China. Saudi Arabia’s militant activism demands vigilance in respect to relations across the Horn of Africa region and its direct ramifications for the situation in Somalia. But most of the challenges are closer to home.

Multiple developments, from the security threats posed by non-state insurgents to the parochial influence of social media, the emergence of highly contagious disease vectors, the spread of ethnic and regional nationalism and the implications of new technologies, are driving the overall pattern of change across the world.

Multiple developments, from the security threats posed by non-state insurgents to the parochial influence of social media, the emergence of highly contagious disease vectors, the spread of ethnic and regional nationalism and the implications of new technologies, are driving the overall pattern of change across the world. The organisational structure of governance is in flux, but this has been the case in Africa since the 1970s. African states have for the most part successfully resisted and selectively curbed the international pressures from above while conceding influence to the ethnic forces from below. The only news here is the resurgence of tribal identity across other world regions.

So maybe things are not so different after all?

Think again.

Although the day-to-day realities appear to be the same, over time both forces have reduced the political space that the traditional nation-state carved out over the last five hundred years, while liberalisation has further eroded the state’s control over the economy. Supra-national organisations and transnational networks are flattening the top-down hierarchical world order from above. The influence of new and old tribes are doing the same from below; free-scale networks are spreading, and all of these changes are reducing the economic primacy the state has long enjoyed.

The import of these shifts for the landscape of eastern Africa highlights the quest to achieve a flexible balance of national governance, economic integration, and enhanced cooperation among and across local and international system scales. Somalia and other areas of cross-border turbulence are regional problems that demand regional solutions. The dynamic is the same in respect to devolution; the counties are now the focal points of local development.

The required adjustments by the state in both instances serve the national interest; the problem is that the required concessions entail conceding a degree of national-level sovereignty. This is easier said than done in a world where the nation-state and the economic agents of centralisation appear to be driving globalisation. Bigger is better is still assumed to be the policy default. The corollary assumption presumes that material progress is a function of strong leadership at the top. Imperialism was one of the more draconian examples of how this principle actually works. The nation-state has long been the repository of global power, but in today’s world the influence of political leaders at the apex of the planet’s food chain is more a mirage than reality.

History shows that authority concentrated at the centre can be very effective in the beginning, but typically ends badly. A similar hegemonic model worked for a while in Somalia, but we saw how that turned out.

That China is the reigning contemporary exemplar highlights the economic strength of the command economy, but so was Stalin’s Soviet Union once upon a time. History shows that authority concentrated at the centre can be very effective in the beginning, but typically ends badly. A similar hegemonic model worked for a while in Somalia, but we saw how that turned out. On the neoliberal side of the ideological divide, Whitehall’s entrenched control of the British homeland may result in the break-up of the United Kingdom during the coming years.

These comparisons demonstrate the limits of sustained centralisation. The predicament facing governments across the globe is how to manage the directionality of political change in a milieu where small has gone from beautiful to powerful. This is not easy in countries like Kenya where the state has long enjoyed supremacy as the only game in town.

The Jubilee Party may have gained ground, but the inevitable partisan hangover and the problems of promoting progress in a deeply polarised nation are not going away.

The morning after

Nairobi dwarfs the rest of the country economically and across most other categories. Ninety-three per cent of its households fall within the top two quintiles of the country’s wealth index and only two per cent fall within the bottom twenty per cent, according to the 2014 Demographic and Health Survey.

Contemporary Kenya presents a distinctively problematic socio-economic equation. Its relatively sophisticated private sector is offset by problems of extreme poverty, endemic corruption, declining agricultural productivity, increasing seasonal water shortages in high rainfall areas, vulnerability to the effects of climate change, undiminished security challenges, and a perverse combination of reduced funding for civil society and sustained support for an ineffective military counterterrorism strategy.

Urban areas across the world are by definition more prosperous than the rural hinterland. But in this case the wealth concentrated in the capital translates into shortfalls elsewhere. No other city in Kenya really qualifies as a sectoral hub in comparison, and even though Mombasa and Nakuru formerly enjoyed this status due to the port and agricultural processing industries, both cities’ position has eroded relative to the capital.

Nairobi disproportionally benefits from the wealth generated in the countryside even though its contribution to the national economy in the form of industrial production is stagnant. Ownership of mobile phones and radios are the only exception to the pattern of material consumption for rural Kenya.

The concentration of wealth and power in the world’s capital cities fuel growing local demands for redistributed decision-making authority, secessionist movements, and the rise of militancy on the peripheries of the state-centric system. In Kenya, extending the national infrastructure is only part of the formula for alleviating the disparities between urban centers and the hinterland. It is a routine function that governments everywhere undertake, although this has been a major selling point for the current government.

In Kenya, the country’s spatial and regional socio-economic inequality is one major divide; the other is demographic. Kenya’s population is now approaching 50 million, and has doubled since 1992. The median age is 19, and three-quarters of the population is under 30. The fertility rate has abated from the apex of 3.9 per cent per annum in 1989, but at 2.7 per cent the decline remains higher than the decrease predicted by demographic transition models.

In Africa, two decades of colonial intervention effectively redirected Africa’s historical trajectory—accelerating socio-economic change in some areas while effectively ensuring that wide expanses would sink into a state of malaise and stagnation. It will take much longer to restore the natural equilibrium turned upside down by imperial intervention.

Nairobi dwarfs the rest of the country economically and across most other categories. Ninety-three per cent of its households fall within the top two quintiles of the country’s wealth index and only two per cent fall within the bottom twenty per cent, according to the 2014 Demographic and Health Survey.

Kenya’s ongoing transition entails a gradual unwinding of the old order and the incremental redistribution of administrative decision-making and political power across local and regional system scales. The process of reconfiguration has just begun, and over time it should produce far greater benefits than the agrarian capitalism introduced by the colonial administration. Rectifying the structural inequalities it created is a prerequisite for this to happen, and this cannot occur in isolation. Overlapping economic unions like IGAD and the East African Community mark the commitment of the region’s governments to regional integration. Convergence will eventually create a more balanced and robust regional political economy. This, perhaps more than the efforts of individual governments, may prove to be the key that unlocks prosperity for this region’s surging populations. The problem is that although some of the national economies may achieve lift-off over the next decade, integration will probably take much longer. In the meantime, the new Kenyan government will inherit a politically, economically, spatially, and demographically divided land of contrasts.

Contemporary Kenya presents a distinctively problematic socio-economic equation. Its relatively sophisticated private sector is offset by problems of extreme poverty, endemic corruption, declining agricultural productivity, increasing seasonal water shortages in high rainfall areas, vulnerability to the effects of climate change, undiminished security challenges, and a perverse combination of reduced funding for civil society and sustained support for an ineffective military counterterrorism strategy.

All of these issues feed the stark realities that the new Kenyan government will have to confront once the political noise and legal controversies stirred up by the polling season subside. In a country where the recent crisis in Laikipia is only the most recent indicator of the intensifying competition over land and natural resources, Kenya’s pursuit of transformation is a race against time. The prospects for winning the race are not exactly sanguine at this juncture.

Devolution and the Vision thing

Many Kenyans retain an entrenched mentality about the developmental capacity of the central government. Despite the new constitution’s provisions for addressing structural inequalities, the ethnic power map still holds sway and manifests in the foot-dragging, revisionism, and state elites’ reluctance to embrace constitutionalism—even while devolution is opening up new pathways for problem solving, citizen participation in governance, and formerly inert communities’ developmental horizons.

In his influential work on economic history, Capitalism in the 21st Century, Thomas Picketty documents how a country’s rate of population growth translates over time into an equivalent percentage of economic growth. The corollary observation is that the government’s contribution to Kenya’s economy is actually considerably less than what the growth rates associated with the conventional indicators suggest.

The 70 per cent of Kenya’s citizens who think the country is not on the right track may discern a glimmer of hope in the technology-driven future. Innovations, like the blockchain, for example, can deliver results where previous attempts to reform the system have hit the wall of impunity and public apathy.

Vision 2030 is the latest top-down iteration of the five-year development plan. The technically well-informed document is still the grandchild of a century-old strategy that overestimates the capacity of the state relative to the pressures building up on the ground. In reality, government policy makers are banking on the prospects that an oil export boom and other extractive industries will provide an economic lifeline.

There’s nothing wrong with thinking big when conditions and resources favour implementation of visionary schemes. China became an industrial power over the course of a generation and the Americans took less time to land a man on the moon.

But historically, this region’s conditions have not been conducive to large-scale project interventions. The Lamu Port and South Sudan Ethiopia Transport (LAPSSET) project, the latest product of this set piece way of thinking, is doomed to fail in its present form. Its planning was predicated on incorrect economic and political assumptions, including the value of the untapped crude oil justifying its US$24 billion price tag. Irrational initiatives, like the aborted plan to transport oil from Turkana in lorries, are indicative of the desperation to cash in on the fading demand for carbon energy resources. Even though it is now in limbo, the project is generating deep frictions among the communities in the areas it traverses.

The majority of Kenyans elsewhere, however, are reluctant to discriminate between the illusions spun by such “vision” statements and practical policies parlaying demographic-driven growth into economic transformation. The success of a given political party in these circumstances should not be seen as uncritical support for conventional development planning from above. Very few people bothered to read, much less debate, the Jubilee and NASA party manifestos, and Kenya’s developmental monoculture no longer holds sway in many areas.

Biological monocultures, like the fir forests in Scandinavia and the waves of amber grains spanning the American heartland, dominate in resource-rich environments. Biodiversity thrives in landscapes where climatic variation and the uneven distribution of ecological resources prevail. These initial conditions shaped the region’s cultural ecologies. Kenya’s cultural and linguistic diversity is the by-product of multiple niche adaptations. Clans served as the basic unit of economic production that merged into larger fuzzy-edged collectives that the colonials defined as tribes.

The Lamu Port and South Sudan Ethiopia Transport (LAPSSET) project, the latest product of this set piece way of thinking, is doomed to fail in its present form. Its planning was predicated on incorrect economic and political assumptions, including the value of the untapped crude oil justifying its US$24 billion price tag.

The edges became sharp and less permeable under the influence of the modern state. Three decades of reforms may have diminished the Leviathan but have left the motivations of the political class intact. The influence of neoliberal economic policies in Africa has converted the developmental focus of the post-independence era into a more transactional political economy over time. Liberalisation has also reactivated the environmental and spatial dynamics held in check by decades of centralised governance.

Infrastructure is a basic prerequisite for economic progress, as discussed in an insightful essay by Kenya’s Harvard-based Calestous Juma. Governments everywhere since antiquity have developed roads and ports. Fostering economic inclusivity is the real big project in the present Kenyan context. Enhancing the developmental capacity of county governments and empowering local aspirations to benefit from their natural resource endowments will go a long ways toward this goal.

It is not a simple matter of sharing some revenue with the counties. It follows that the current budget allocation formula favouring areas that benefitted from Kenya’s Sessional Paper No. 10 should be reviewed and adjusted as a matter of procedure. Although the county governments have issues of their own, in general they have displayed better problem-solving skills and have been more responsive to feedback and complaints than the monolithic central government.

After twenty years of failed sectoral reforms, the governor of Nyeri broke the stranglehold of the coffee barons. Now the county’s farmers are producing some of the best specialty coffees in the world. Mandera has raised water development to an unprecedented level. Kwale led the country in fiscal management, and there are many other feel-good county stories.

Despite problems of revenue generation and the duplication of services, in general devolution has been a success. And this is just the beginning. The government overseeing the second phase of the roll-out process will require a more creative mindset than what was on display during the just concluded elections if it wants to harness the energies generated and create new synergies.

Unfortunately, the winners of Kenya’s contested national elections will probably treat their victory as a mandate to conduct business as usual. This is a dilemma for counties on the margins who will continue to fight for their share of the spoils while state compradors cut deals with foreign investors. The constraints facing the counties in general reflect a yet bigger problem. Until proven otherwise, the transformational language of the victorious party’s manifesto will be seen as a smokescreen for the unrelenting appetite to eat at the centre. The violent suppression of protest and bellicose responses to criticism in general are also not consistent with a government confident of its performance and political legitimacy.

Are the nation’s political leaders capable of seeing the shape of things to come? This may not be the right question in light of the state’s tendency to shun opportunities to offset the inequities of the past.

The 70 per cent of Kenya’s citizens who think the country is not on the right track may discern a glimmer of hope in the technology-driven future. Innovations, like the blockchain, for example, can deliver results where previous attempts to reform the system have hit the wall of impunity and public apathy.

The state’s role as an agent of development may be antiquated, but its function as a vehicle for governance is likely to become even more critical as it is the one public institution with a democratically approved mandate to negotiate the relationship between society and technology-driven capitalism.

Blockchains are a peer-based accounting mechanism that gained fame for enabling the rise of crypto-currencies, such as Bitcoin and Etherium. Tech analysts believe their role in the management of commercial ledgers and financial flows also has revolutionary implications for the problems of corruption and mismanagement of public assets. Technological forces are also reconfiguring the prospects for more productive livelihoods. Data-based applications and machine-learning algorithms originally designed for large-scale technologies are now catalysing transformative efficiencies in areas such as precision agriculture, resource management, and a range of small-scale enterprises.

As Malcolm X declared, “The future belongs to those who prepare for it.” Governments that do not see the need to keep pace with these developments risk becoming irrelevant. It will be hard for policy makers to choose one set of technological innovations that improve economic productivity while rejecting others that enhance transparency and improve the management of public resources.

More devolution or the building of a Konza techcity will not alter the challenges on this front. Rather, as Professor Juma states, “new approaches will need to be pursued to ensure that the past failures of industrial policies are not repeated.” This imperative to facilitate what he describes as “adaptive open competitive and collaborative innovation ecosystems” is complicated by the looming scenario the good professor does not refer to: the fast approaching economic singularity and attendant loss of employment.

A recent article in Quartz magazine opined that Africa could suffer a forty per cent loss of it formal sector jobs to the machine economy over the next two decades. We still do not know how these fast-moving developments will impact society, but based on present evidence, I personally think the current pace of automation makes this prediction look optimistic.

The state’s role as an agent of development may be antiquated, but its function as a vehicle for governance is likely to become even more critical as it is the one public institution with a democratically approved mandate to negotiate the relationship between society and technology-driven capitalism. The implications of this remind us that despite its shortcomings, the nation-state is still the world’s most successful form of multicultural organisation.

Deep neural networks cannot replicate our uniquely human traditions of collective leadership and consultation or replace the role of a vibrant civil society. In his seminal treatise on the emergence of a distinctively African capitalism, John Illife addresses this quandary by concluding that “political skills on both sides of the state-society divide will determine whether or not African capitalism can establish itself as a creative force”.

The regime of capitalism in Kenya presently favours rent-seeking elites. Most of the key decision makers are neither creative nor visionary. After decades of accumulation where are the Kenyan Dangotes, where is the noblesse oblige?

The regime of capitalism in Kenya presently favours rent-seeking elites. Most of the key decision makers are neither creative nor visionary.

It is naive to expect that the latest government of the day will exchange its legacy of patrimonial governance for the kind of forward-looking leadership Kenya’s youth demographic deserves. But we can anticipate that the nation’s youth will assert themselves within the mix of new and existing selective forces that will begin to sort things during the run-up to the 2022 elections.

An oft-cited tech sector rule observes that just as we tend to overestimate what can be accomplished over the short term, we can also underestimate the scope of change that can occur over the longer term. In the case of Kenya, reversing the political status quo will begin with small steps. Ditching the Vision 2030 blueprint would be a good place to start. This will allow the executive to impart substance to its rhetoric of transformation by involving individual leaders from different sectors in tandem with the county governments to formulate a new vision for 2040.

Kenyans, as the 2017 World Athletic Championship once again demonstrated, may not be very competitive in the sprints, but they excel in the long distance race.


Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Follow us on Twitter.