Kenya headed for a referendum hoping to end divisive elections

Kenya, often regarded as a progressive democracy in the region, is bracing itself for the next General Election in 2022, hoping to slay the dragon of divisive politics that have led to election disputes and bloody ethnic tensions in the recent past three election cycles.

In August 2017, the presidential election result drove the country close to the brink after the Supreme Court overturned President Uhuru Kenyatta’s victory and ordered a repeat poll.

President Kenyatta was declared winner of the repeat election that was however boycotted by the opposition candidate, Raila Odinga, sparking weeks of protests in parts of the country, culminating in the controversial mock swearing-in of the latter as the ''People’s President'' on January 30, 2018.

The Supreme Court battle was a sequel to the one in 2013 when Mr Odinga also petitioned Kenyatta’s victory, albeit unsuccessfully.

Mr Odinga’s decision to accept the court judgment in 2013 is believed to have spared the country a recurrence of the political violence that claimed an estimated 1,300 lives and internally displaced up to 650,000 people following the disputed presidential election outcome in December 2007 in a race between Mr Odinga and then incumbent President Mwai Kibaki.

Relative political stability

It took international mediation efforts led by the late Kofi Annan to bring Kenya back from the brink then, with a powering sharing agreement dubbed ''the National Accord'' that created the position of Prime Minister for Odinga in a Grand Coalition government led by Kibaki as president.

The Grand Coalition government was credited with the relative political stability that characterised Kibaki’s second and final term in office.

The country is again trying to borrow a leaf out of the Annan team’s book of compromise in a new attempt to avoid divisive elections in the 2022 and future elections.

The Building Bridges Initiative (BBI) taskforce, set up by President Kenyatta and Mr Odinga in May last year—following the famous handshake of March 9, 2018 — to evaluate the inclusivity challenges of national elections and suggest appropriate reforms, is widely expected to recommend a constitutional referendum to expand the Executive to accommodate as many of the country’s ethnically influential politicians as possible.

Mr Odinga on Thursday told a crowd in Turkana County in northern Kenya that they were awaiting the BBI report to pave the way for a referendum, even as he dismissed the parallel Punguza Mizigo (lighten the burden) campaign championed by Thirdway Alliance party leader Ekuru Aukot, a losing presidential candidate in the 2017 election.

BBI referendum Bill

Punguza Mizigo seeks constitutional changes to introduce fiscal discipline in governance by reducing the number of national legislators and independent commissions. A referendum Bill on the same is currently before the 47 County Assemblies for debate.

But the little-known Thirdway Alliance which is sponsoring the Bill faces an uphill task securing the support of 24 County Assemblies required to pass it.

On the other hand, a BBI referendum Bill would have little trouble getting legislative approval in the counties, with the country’s heavy political hitters having thrown their weight behind the process in support of Mr Odinga and President Kenyatta.

Apart from Kenyatta and Odinga, the BBI enjoys the backing of two former vice-presidents, Kalonzo Musyoka and Senator Gideon Moi, the scion of Kenya’s longest-serving president, Daniel arap Moi.

William Ruto, Kenya's current deputy president, is the only notable member of the country’s dominant political elite to have publicly expressed reservations about the BBI.

John Onyando, the author of Kenya: The Failed Quest for Electoral Justice, says that it is almost a foregone conclusion that the BBI team's final report will prescribe a referendum, citing the political clout of the pro-referendum leaders and the many presentations it received urging it to do so.

“The BBI was from the onset a front for the two leaders, Kenyatta and Odinga. An expanded Executive will also make it possible to accommodate Musalia Mudavadi, Kalonzo and Moi,” said Mr Onyando, who worked for Mr Odinga’s 2017 presidential campaign team.

Forgone conclusion

Ndung’u Wainaina, the executive director of the International Centre for Policy and Conflict, also expects the BBI report to call for constitutional amendments making it easy for the top politicians to share the spoils of disputed elections and manage President Kenyatta’s succession.

“Public pronouncements by key players leave no doubt there are already predetermined positions and outcomes from the BBI. The people of Kenya are only being made to legitimise the final product,” said Mr Wainaina.

A document leaked to the media this July, and believed to be the taskforce’s preliminary report, proposed a return to a parliamentary system of government, and the creation of the positions of a prime minister and two deputy prime ministers.

The three positions were a key plank of the Annan-mediated National Accord in 2008, which also allocated Kibaki and Mr Odinga a share of Cabinet appointments each and set the roadmap to the constitutional referendum of 2010.

The leaked report further recommended that the country reverts to having Cabinet ministers appointed from among members of parliament.

In a country where individuals are generally perceived to represent the interests of their ethnic communities in government and in the sharing of the so-called national cake, opening up Cabinet appointments to politicians comes in handy for a president seeking to create a sense of ethnic balance and curry favour with them.

Before the 2010 Constitution—which emphasises a lean Cabinet of mostly technocrats—came into force, the president enjoyed the discretion to distribute appointments, including that of assistant ministers, as widely as he chose.

For instance, the Grand Coalition Cabinet, the last one under the old Constitution, had 40 ministers and 51 assistant ministers.

Power-sharing deals

An expanded Executive is further seen as affording the president or political parties wiggling room to negotiate power-sharing deals with election losers, as was the case with the Kibaki-Raila Grand Coalition and the Kanu-NDP merger between 2001 and 2002.

The latter contributed to the easing of political tensions amid threats of mass action by the opposition to protest the outcome of the 1997 presidential election, which the incumbent Moi won narrowly with a 40.6 per cent of the vote and helped then ruling party Kanu govern with a hung parliament.

The restriction the current Constitution places on post-election power-sharing deals is thought to have prompted President Kenyatta and Mr Odinga to innovate a way out of the political crisis following the 2017 election dispute, resorting to a gentleman’s agreement to consummate the handshake.