Flawed election could turn out to be Uhuru Kenyatta’s poisoned chalice

President Uhuru Kenyatta. PHOTO | NATION MEDIA GROUP 

In 1966, President Jomo Kenyatta amended the Constitution to force 29 members of the National Assembly and the Senate who had defected from the ruling party, Kanu, to Jaramogi Oginga Odinga’s Kenya People’s Union, (KPU), into a series of by-elections that came to be called “the little general election”.

Kanu won a majority of the now vacant seats and though KPU won the popular vote, Jomo Kenyatta was able to leverage the result to further amend the Constitution and, eventually, decimate the opposition.

Fifty years later, his son President Uhuru Kenyatta, lacking the legal means to force his opposition into a similar debacle, rushed headlong into an election boycotted by his principal opponent, Raila Odinga, and unwittingly converted what should have been a coronation into a referendum on his government.

The results — already controversial because the Independent Electoral and Boundaries Commission (IEBC) has results from areas that never voted – will almost certainly damage and weaken Uhuru’s political authority beyond repair.

This was supposed to be the election that buried Odinga’s political career like the little general election buried his father’s. Instead, it will realise none Uhuru’s hopes and bring about all the consequences that a more reflective leader would have foreseen.

Shrunken electoral mandate

First, it will bolster Odinga’s political legitimacy as it retrospectively undermines Uhuru’s earlier claim that he had overwhelmingly won the election of August 8.

Second, it will strengthen deputy president William Ruto, as Kenyatta becomes ever more reliant on him.

Third, a weakened Uhuru must become more authoritarian and yet, without the reservoirs of legitimacy that come from an electoral mandate, he will find the population increasingly resistant. The upshot will be that what was initially a political crisis will metastasise, becoming a constitutional crisis that must undermine the very stability that the business community craved when they argued for an early election.

Central to Kenyatta’s problems is his shrunken electoral mandate. The final turnout figures have not been announced. The chair of the IEBC, Wafula Chebukati, had initially announced a voter turnout of 48 per cent.

No sooner had he done that than he tried to walk that number back — saying it was “a best estimate” — as results from monitors in the field showed that this was patently false. On the most optimistic outlook, the real number will probably be nearer or lower than 40 per cent. If that turns out to be the case, the implications are devastating.

In the first election on August 8, five out of every six registered voters turned out to vote. A 40 per cent — or lower — turnout means that less than three out of six voters have come out to vote barely two months later.

This raises six problems. One, the vote is essentially a Kikuyu/Kalenjin vote, a hugely unsettling political fact in a country of 44 ethnic groups.

Two, voter turnout among the Kikuyus and the Kalenjin did not come anywhere near what it was in August. Though electoral studies show that such a turnout is normal in electoral reruns, Kenyatta’s opponents will seize on this as proof of, at best, growing fatigue and at worst, dwindling support for Kenyatta in his own backyard.

Three, Odinga will spin the low turnout as his doing, evidence, he will say, of a country responding to his call to boycott the election.

Divisive figures

Four, it will leave Kenya even more divided than it was before: Kenyatta has been as divisive a figure as his main opponent Odinga. This election has sharpened those divisions and Kenyatta’s headstrong — some would say hubristic — refusal to even consider putting off the vote to increase cross-party trust and improve the environment, will have curdled political sentiment, perhaps irretrievably.

Five, the result will reenergise Odinga and, thus pumped up, he will be more intransigent to any overtures from Kenyatta.

Six, and most unsettling from an ethnic voting point, the result in central Kenya exposes Kenyatta’s tenuous hold on the Kikuyu. The turnout supports what many always feared, Kenyatta’s base is anti-Raila rather than pro-Uhuru: Without Odinga in the running, they were not motivated to vote.

Ruto, Kenyatta’s presumptive heir, will note this with alarm. Can Kenyatta really deliver the Kikuyu vote to him in 2022?

Few unattractive options

Unfortunately, Kenyatta has few options now and none are attractive. This has exposed his soft underbelly, serving up a lame duck second term even if he is able to hold on to the end of his presidency. That has three implications, each of which he will find unsettling:

One, looking at these numbers any Nasa (opposition coalition) leader Kenyatta reaches out to with promises of goodies so as to outflank Odinga will be coy. Is it worthwhile to accept a position in an administration at a time when that seems so obviously like a kiss of death?

Two, that Kenyatta is serving his last term will fray his own support within Jubilee, a party teeming with young politicians with political gifts to burn and years of political life ahead. If they see Kenyatta as a liability — as these numbers say that he is — their support will be mostly equivocal and low key, all geared to wait out Kenyatta’s five years as they consolidate their experience.

Three, unable to co-opt the opposition, Kenyatta will be thrown back on his allies, principally Ruto, on whom he must increasingly rely to get his measures through parliament. Ruto in turn will have two concerns: First, a legitimate worry — in the wake of this election — that he cannot rely on Kenyatta to deliver the Kikuyu block and second, a realisation that though another Kikuyu/Kalenjin alliance remains numerically attractive, fronting it in 2022 will be fatally toxic in terms of ethnic relations in Kenya.

At a minimum, Ruto must see that any winning future coalition must reach beyond Mt Kenya and the central highlands of the Rift Valley.

Kenyatta has just thrown his deputy a curve-ball: Ruto must now try to keep his current coalition in power even as he cobbles up a wider coalition that can win in 2022.

Political business

This dual play is both a boon and a bane from where Kenyatta sits: In keeping the current coalition together Ruto will be helping keep Kenyatta in power but whatever he does to build a new coalition for 2022 will undermine him.

And then there are Kenyatta’s “political business” allies, the oligarchs who finance his politics and the real power behind the throne. Many will already have been thinking ahead, scouting for politicians to fund for 2022 as Kenyatta’s second term ends. This election result must have shocked them. Some will recalculate their risks; some may even defect — if not to the opposition then to the heir apparent, Ruto — especially if the crisis deepens.

In a way, this was inevitable: In five years, Kenyatta has done everything to undermine institutions and empower the “contractor elite” — the oligarchs — around him.

That he must soon find that very elite fickle in their support is his own doing. Two thousand years ago Aristotle presciently said that democracy — together with its institutions — was safer than oligarchy because oligarchies suffer a double risk.

First, oligarchs often fall out with each other and, second— and more usually — they invariably fall out with the people. A Kenyatta who cannot deliver the goods is ripe for betrayal by his allies. Thus abandoned, he will be further weakened if the opposition confronts him with violent upheavals.

Double crisis bites

Some will think that Kenyatta’s now fragile coalition can survive the coming turbulence. Perhaps that is so but it seems unlikely. Part of the problem is that the administration is facing deeper problems that will feed Kenyatta’s political nightmares. The economy is not doing well.

The political uncertainty has had an effect on it to be sure, but then so has the weather, with its knock-on effect on food production. Our growing debt and its onerous interest repayments will eventually bite. Given the administration’s appetite for expensive debt — a few other costly loans are lined up — there is more trouble to come.

Juggling a tanking economy and fissiparous politics would tax a leader with better political skills and a more equable temper than Kenyatta, who started out desperate to be liked in 2013 and now seems keener to be feared. Without political resources to draw down and short of economic performance to brag about, he will — at least in the short run — turn to repression, becoming more authoritarian as the double crisis bites.

Unfortunately, the authoritarian option is never a good one. First, autocracy invariably solves all political conflicts violently. Second, its success depends on the coherence of the ruling elite. Let’s explore each of these two problems.

Using violence to solve political problems is both inefficient and unpredictable. It is inefficient because it means significant investments in surveillance and control. It is unpredictable because what the state can do, the public can do too.

The dramatic collapse of the Romanian dictator Nicolae Caeusescu in December 1989 is a case in point. The dictator had run a vicious and violent regime. In the face of economic crisis, he imposed a severe austerity programme that eventually provoked riots in the town of Timisoara, Romania’s third largest city and a key economic and cultural centre.

Christmas Day

Caeusescu called for a rally in Bucharest, the capital city, intending to condemn the protestors and check the spread of discontent. The crowd grew unruly and demanded that the dictator step down. Caeusescu unleashed his dreaded security forces, the Securitate, on them but in the week that followed protests flared up across the country.

At that point, the security forces baulked at shooting at the unarmed public and Caeusescu then fled Bucharest with his wife, deputy prime minister Elena Caeusescu, on December 22, 1989. Three days later he was arrested, summarily tried and executed on Christmas Day.

The rapid collapse of longtime Tunisian dictator Zine El Abidine Ben Ali in January 2011, hot on the heels of violent protests triggered by the self-immolation of Mohammed Bouazizi, a hawker, on December 17, 2010, following economic and political crises, underlines the same lesson.

That brings the second point into play: The coherence of the ruling elite. All regimes must strike some bargain with their supporters, implicitly or explicitly.

Repression — as happened in Romania and Tunisia — forces regime supporters to recalculate the actuarial risk of losing power. Whether repression succeeds over time also depends on the co-operation of the security forces. When there is an economic crisis — such as the one we seem headed into — and the country is sharply and deeply divided, as Kenya was and is now more so, there is a dual risk.

The economic crisis erodes the support of the political elite and the political divisions fragment the security forces into ethnic militia. This means that though Kenyatta may be tempted by the authoritarian option, it is a dangerous and fickle mistress that he will be courting.

Majority rule

Given this, his advisers — who have been criminally inept in the past — may suggest that he tries, instead, a softer version of authoritarianism, what is often called “rule by law” rather than the “rule of law.” According to Javier Corrales’ essay, Autocratic

Legalism in Venezuela this softer authoritarianism has three elements: The use, abuse and non-use of the law in service of the presidency.

Given his legislative majorities, Kenyatta could find this appealing and cost-effective. He has already tried it, with some success, in the recent amendments to the election laws.

In some ways, Kenyatta will be genetically familiar with this instrumental use of the law. His father was a master of it. If the constitution did not give him power to do something that he desired to do, he simply ignored or amended it.

In 1975, for example, he famously amended the Constitution and then backdated the amendment, all so that he could pardon his friend Paul Ngei, who had been barred from a by-election because he had committed an election offence, a crime for which the president could not pardon Ngei with the constitution as it then stood.

The problem with “autocratic legalism” is that it depends on a quiescent judiciary. Right now, there is a coterie of intrepid judges whom Kenyatta cannot bend to his will. These judges are backed by an unforgiving Constitution that, properly interpreted, will nullify the laws Kenyatta may need to achieve his aims.

Autocratic legalism then — and the soft authoritarianism that Kenyatta needs to govern a divided country over which he has lost political control — does not look like a feasible option.

This brings Kenyatta to the place where he was before this election: He urgently needs to talk to Raila Odinga. Ill-advised procrastination and a flawed election have robbed him of his two most precious assets: Initiative and leverage.

And, sadly, Kenya seems set to lose again, as it did the last time a Kenyatta and an Odinga quarrelled.

*Article first published on http://www.theeastafrican.co.ke/

Wachira Maina is a constitutional lawyer.

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