With broken institutions and a reeling opposition, what’s next for Kenya?

I remember walking through the rubble of burnt out buildings some months after Kenya’s 2008 post-election violence. Houses owned by ethnic Kikuyu were razed to the ground in the city of Kisumu. A large night club was also raided and then set on fire.

A friend and guide who was showing me around refused to follow me into the ruins. She herself had feared for her life in the chaos that followed that election. Though she was ethnic Luhya, youths had encircled her house in the dead of night, believing her to be Kikuyu and threatening to torch her house. She hid with her son the entire night and eventually the youths went away.

Stopping by a demolished wall I read in paint, “No Raila, No Peace”. This was a reference to Raila Odinga, who disputed the election of Mwai Kibaki as president in December 2007. He is now leader of the opposition coalition National Super Alliance (NASA).

Kenya has just conducted a rerun of the 8 August 2017 presidential elections that were invalidated by the Supreme Court following copious evidence of irregularities. In line with the Constitution, the rerun had to take place within 60 days. And so on 26 October Kenyans went to the polls once more, though not everyone.

Odinga was on the ballot even though he had declared that he would play no part. In the run up to the repeat election, Odinga demanded the electoral commission make reforms that he believed necessary to avoid the previous mistakes. NASA provided a list of “irreducible minimums” that had to be implemented before free and fair elections could be guaranteed.

Declaring that these reforms had not been made, Odinga announced that he would not stand for election. He also called on his supporters to boycott the vote and hold rallies in protest of the electoral commission in the preceding weeks. Turning up the temperature even higher, a day before the repeat election he announced that NASA was no longer a political coalition but a “resistance movement”.

On 26 October, his supporters honoured his call to boycott the vote. This led to a drop in turnout that affected not only his traditional heartlands but the country’s north east and coastal areas as well. This is a contrast to Kenya’s record of extremely high political participation.

Odinga’s call was for peaceful non-participation. But confrontation did mar election day. MPs and other politicians in Odinga’s Nyanza region had, in the run-up to election day, been threatening retaliation against the security forces. Their supporters in four counties created enough disturbance that polling had to be delayed and postponed. Youth gangs were out in force roaming numerous tallying centres to harass both election officials and voters.

More alarmingly still, police brutality was also evident on election day. Over 20 people suffered gun shot injuries in Kisumu alone. Reports indicated that many of those attacked over the course of the campaign period were confronted by the police in slum areas, stoking suspicions that these were extrajudicial killings utterly unnecessary for establishing law and order.

A broken election

What has become a broken election was doomed at the start by the almost impossible time frame given by the Supreme Court. After ruling that the Independent Electoral and Boundaries Commission (IEBC) had made fatal mistakes in the conduct of the 8 August election, it took another 21 days to provide the details of exactly what those mistakes were.

With the 60 day countdown looming, the ground shifted again when the High Court ruled that the election was open to additional candidates, not just the incumbent Uhuru Kenyatta and Odinga.

The back and forth between the courts did not end there. On October 25 the Supreme Court was called upon to decide whether the new polls were being lawfully held. The grounds for this opposition-backed petition was that the IEBC had failed to facilitate fresh nominations.

Only two judges were available to hear the petition; five are required to form a quorum. So the petition was postponed, further destroying the election’s credibility in the eyes of those opposed to Kenyatta.

Broken institutions

The institutions steering this election – the IEBC, the courts and parliament – have evidently broken down. They have become the shattered remains through which an iron fist is descending on the country to reestablish political stability by any means necessary.

In a sign of what was to come, the electoral commission’s CEO took three weeks’ leave in the runup to election day, bowing to pressure from the opposition coalition.

Shortly beforehand, IEBC Commissioner Roselyn Akombe fled to New York, stating ominously that her fear over the safety of election staff in the field,

was met with more extremist responses from most Commissioners, who are keen to have an election even if it is at the cost of the lives of our staff and voters.

Odinga is partly to blame for the ease with which this iron fist is descending. He started his opposition through the courts but then failed to follow through, switching to mass action instead. He declared he would not contest the election but then failed to submit the relevant form to the IEBC – so there was no legal requirement to have the ballot papers changed.

That was a strategic blunder that inadvertently framed Kenyatta as the one campaigning for Kenyans to have a chance to vote. It’s a strategic blunder that will likely end Odinga’s political career. It also means he cannot subsequently claim in the Supreme Court that the election should not have gone ahead.

NASA’s decision to declare the coalition a “resistance movement” signifies that it believes the IEBC and Kenya’s core political institutions are fully undermined. What they fail to see is that this has a direct effect of splitting the opposition in two.

While the presidential election required a rerun, all other elected positions continue in place. There are MPs, governors and senators of the NASA coalition who will not leave their positions to join a less formalised resistance movement, though they will show their support for Odinga in rhetoric. This breaks the opposition into insiders and outsiders, rendering it even weaker than previously feared.

Dominic Burbidge, Postdoctoral Researcher, Faculty of Law, University of Oxford

This article was originally published on The Conversation. Read the original article.

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