Africa Policy Brief No.

1 January 2008

Breaking Kenya’s Impasse Chaos or Courts?

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Breaking Kenya’s Impasse: Chaos or Courts

Executive Summary & Recommendations
KENYA’S 2007 ELECTION HAS PRECIPITATED THE COUNTRY’S WORST CRISIS SINCE THE ABORTIVE AUGUST 1982 coup by the Air Force: 700 deaths, nearly 300,000 others displaced, an estimated 60 billion Kenya shillings ($850 million) and continuing instability which has undermined the country’s international image and rapidly eroded donor confidence. Typically, international observers viewed Kenya through the prism of other failed states in Africa, and proffered the obvious ‘liberal peace’ solution: peace talks leading to a power sharing deal between the various ‘warlords’ or elites. As a result of this flawed diagnosis, Kenya has witnessed a parachuting of international mediators (Desmond Tutu, John Kufor and Kofi Annan) to broker yet another peace deal in a troubled continent. But the Kenyan crisis is not in the same league as the crises in other parts of Africa like Somalia or Darfur--although it may get there if the right prescription is not provided as is happening now. Kenya’s crisis is uniquely and squarely a crisis of democratic transformation typically experienced by countries— even in mature democracies--facing a closely contested election! Despite the high level of post-election violence in parts of the country, the crisis requires a democratic solution, not conflict resolution, not deals by ethnic elites. Kenya’s Attorney General, Amos Wako, and the Chairman of the Electoral Commission, Samuel Kivuitu categoriclly pointed to the judicial system as the natural route to resolve the country’s electoral dispute. The ‘liberal peace’ route can potentially cripple the country’s capacity to fall back to its institutions such as courts and other arbitration institutions to deal with what are normal challenges of pluralist democracy. What Kenya is witnessing is an election dispute like the one that engulfed America in 2000 when the Democratic and Republican party candidates—George W Bush and Al-Gore-- disagreed on the process and results. While elders like Jimmy Carter and James Baker stepped in to cool tempers on both sides, no one was crazy enough to prescribe peace talks between George Bush and Al-Gore as a lasting prophylaxis for America’s democracy. All agreed that America’s courts system was the way to go—and American courts had their day, and their say. Why mediation and not courts for Kenya? The prescription of elite deals as solutioin to Kenya’s crisis unveils the prevailing cultural biases inherent in relations between civilizations in the globalizing world. Conflicts in Africa are viewed as generically pre-modern, and ill-suited for modern solutions as in civilized nations. As such Africa has become a growth industry for peace mediations, which are typically set for conflicting nations or peoples presumed not to be under common institutions. Mediators have a role to reconcile local communities torn by violence and to calm and heal the nation. But what Kenya urgently needs is a chance for its courts to pronounce themselves on the way forward. Certainly, chaos in all its guises is never the way out, and should never be used as a subterfuge to reject the path civilized nations take to deal with disputes arising from the democratic process. The international community including the UN, the US, the EU African institutions and leaders should now insist on the courts as the most credible and sustainable way of breaking the impasse in Kenya, and endeavour to provide the needed support to ensure the impartiality and expediency of the courts in dealing with the election dispute; The Opposition Orange Democratic Movement should halt all its plans to go to the streets and use mass action to redress the grievances arising from the election, but instead seek redress within the judicial system of Kenya; The government and the Party of National Unity should offer guarantees that the courts will deal with the dispute within reasonable time—no more than three months. It might be necessary to call in judges from other commonwealth countries to provide the necessary neutrality and restore the confidence of the parties to the dispute in the courts; The Government and the opposition should be prepared to abide by the final verdict of the courts: a recount, a re-run, or a victory for either of the parties; The government should firmly reassert the rule of law and deal once and for all with the evolving culture of impunity relating to ethnic violence by arresting and bringing to book all perpetrators and inciters of ethnic cleansing, including considering taking some of the most egregious cases like burning people arrive to the International criminal court; Parliament should set aside a post-violence reconstruction and rehabilitation programme and providing funds to aid resettlement, reconstruction of rebuilding of destroyed homes and property; Kenyans must re-commit themselves to the vision of a multi-ethnic vision based on civic rather than ethnic citizenship, sanctity of law and public order, and the courts as the supreme arbiter in all disputes, including election ones.

Africa Policy Brief No.1 January 2008

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Breaking Kenya’s Impasse: Chaos or Courts?

Introduction The declaration of President Mwai Kibaki as the victor in Kenya’s closely contested 27 December 2007 election sparked an orgy of tribal-based violence which has threatened to rip Kenya apart and shattered its image as an icon of peace and stability in a fragile continent. The brutal resurgence of ethnicity in the calamitous election resulted in Kenya’s worst civil unrest since the 1 August 1982 abortive coup detat by the Air Force. It has left some 700 people dead, some 300,000 others displaced and nearly Ksh60 billion [US$850 million] lost. More subtly, it has witnessed the most deadly assault on the vision of civic citizenship that has so far driven Kenya’s 44-year old post-colonial nation-building project. Mediators from South Africa’s Desmond Tutu to Ghana’s John Kufor and former UN Secretary General, Kofi Annan, are trying their hands in breaking the impasse in Kenya. But efforts to pull Kenya back from the brink must go beyond the skin-deep tenets of ‘liberal peace’ that seeks to merely broker deals between warring factions and fractions of the political elite. Kenya must now go back to the drawing board, boldly resuscitate the multi-ethnic vision based on the principles of civic citizenship, sanctity of public order and supremacy of the courts as the only arbiter in all disputes. Courts or Streets? The immediate cause of Kenya’s impasse is the disputed presidential results of the 2007 elections. Kalonzo Musyoka of the Orange Democratic Movement-Kenya (ODM-Kenya) endorsed the verdict of the Electoral Commission that put Kibaki ahead with 4.58 million votes against 4.35 million of Raila Odinga of the Orange Democratic Movement (ODM) and Musyoka’s 880,000 votes. However, Kenya teetered on the brink of civil war as Raila and the ODM objected to the results, accusing the government of fraud, and rejected the court option to resolve the dispute.

Africa Policy Brief When announcing the results, the beleagured Chairman of Kenya’s Electoral Commission, Samuel No.1 January 2008 Kivuitu, advised that the ODM’s objections were a matter for the courts. Raila, however, rebuffed the idea of seeking redress in the courts, demanding Kibaki’s resignation and calling for ‘a million-strong’ campaign of civil unrest to overturn the results in a ‘civilian coup’ ala Ukraine and Philippines where civil action swept official losers to power.
The ODM’s rejection of the court option opened Kenya to what Robert Cooper and others have rightly described as ‘pre-modern chaos’ experienced in many parts of Africa like Somalia, Sierra Leone and Liberia, and seen in the breakdown of the state in parts of the former Yugoslavia. For a country described by the report of the Africa Peer Review Mechanism in 2005 as having developed a relatively appreciable degree of institutionalization, the opposition’s refusal to take the court path and the consequent threat of riots and chaos came through as the proverbial return of barbarism to haunt Africa’s nascent civic nation and culture. Rome was burning! Frustrated ODM supporters went on a rampage, burning shops and shacks in Nairobi, Kisumu, Mombasa and re-settlement schemes in the Rift Valley belonging mainly to Kibaki’s ethnic Kikuyus as well as the Gusii and Kamba. Election manipulations are as old as the hills even in mature democracies. Kenya is no exception. Its 2007 election was, indubitably, flawed at all its stages and on multiple fronts by various actors through widespread ballot stuffing, voter bribery and extensive use of tribal militias to disrupt voting and disenfranchise hostile voters. As the tussle between George Bush and Al-Gore during America’s controversial 2000 election shows, closely contested elections like Kenya’s risk de-generating into political dispute. Recourse to courts as the supreme arbiter in election-related disputes as well as the readiness by protagonists to abide by court ruling, however sleazy, guaranteed the continued stability of America’s democratic institutions in the aftermath of a highly divisive election. Kenya has made giant strides in setting up a functional modern bureaucracy, including a court system. However, whatever reasons the opposition gave in snubbing the courts, this decision marked a tragic move backward from the process of institutionalizing a civic culture of politics. Accelerating this move away from the path to modernization of Kenya’s political culture is the brutal resurgence of the parochial and localized forces of ethnicity, with tribal-based chaos and disorder making serious depredations on democracy. For all its goodwill, the push for “peace talks” between the government and Raila’s ODM is systematically reinforcing this assault on Kenya’s nascent institutions and democratic culture.

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Breaking Kenya’s Impasse: Chaos or Courts?

Ethnic Assault on the Civic Nation
As the wave of democratization washed over Kenya from the 1990s, the country’s 42 tribes appeared in the battlefront armour-plated to wage claims for power in the arena of civic nation on the basis of their tribal identities—Kikuyu, Luo, Kalenjin, Maasai or Luhya. The ensuing ethnic assault on civic citizenship reached its peak during the 2007 election. The palpable tension between ethnic citizenship and civic citizenship became vivid from the self-fulfilling prophesy by Kenya’s former strongman, Daniel Moi, that the country’s return to multiparty democracy would trigger cataclysmic tribal violence that would destroy the nation. Bouts of tribal-based violence marred the 1992, 1997 and, to a lesser extent, the 2002 elections. But none was deadlier than the 2007 violence. The road to Kenya’s 2007 election was a deadly minefield of ethnic fighting in many parts of Kenya, including Kerusoi and Mt Elgon in the Rift Valley and Western provinces, respectively. Hyped idiom of war during campaigns heightened tension to a perilous pitch. “We shall attack the enemy from every direction”, Raila quoted Winston Churchill’s war-time speech, “We shall launch a simultaneous attack from the land, the air and sea, until we secure victory.” The threat of violence became explicit during the ODM’s final rally in Nairobi on 24 December when the party leadership threatened to stage a Ukrainian-style civil unrest if the government rigged. On 30 December, violence flared up in Nairobi’s Kawangware, Kibera and Mathare slums, Kisumu, Mombasa and parts of the Rift Valley when the Electoral Commission declared Kibaki the winner and his swearing-in as president. This violence, mainly perpetrated by Luos and sections of the Kalenjins, was primarily directed against Kibaki’s Kikuyu group as well as the Gusii and Kamba accused of voting for the ruling Party of National Unity (PNU). To a lesser degree, some retaliatory violence against the Luo was reported and pitched battles with the Kalenjins took place in parts of Eldoret. The worst case was the burning of up to 50 Kikuyu women and children sheltering in a Church in Eldoret. This event prompted the Attorney General, Amos Wako, to remind perpetrators that they could face international law regarding crime against humanity as government officials accused the ODM of ‘genocide’ against the Kikuyu. In response, the ODM alleged ‘genocide’ against its own supporters by the police allegedly with orders to shoot to kill. Nairobi became a battle ground between the police armed with rungus (batons), tear gas and water cannons and rioting mobs as Odinga and his supporters pushed for a planned million-strong rally in Nairobi’s Uhuru Park on 3 January, despite a government ban. The police successfully contained the riots, and ODM’s bigwigs called off the rally. But Mudavadi promised daily attempts until the successful holding of the rally to install Raila as a parallel president—a move likely to plunge the country into a profound political crisis. The government acknowledged that the country was sliding to the cliff-edge, with Kibaki describing the violence as “senseless” while his Attorney General, Amos Wako, described the situation as “quickly degenerating into a catastrophe of unimaginable proportions”. At the center of Kenya’s crisis is the emergence of ethnic warlords, locally known as ‘tribal mafias’.

Africa Policy Brief No.1 January 2008

Tribal ‘Mafia’ Wars
From 2002, Kenya entered it night of the long knives as ethnic mafias battled out for the control of the state. Paradoxically, the clash of ‘tribal mafias’ gained momentum after the historic December 2002 election that swept President Kibaki and the National Rainbow Coalition (NARC) to victory over Moi’s handpicked success--Uhuru Kenyatta, the son of Kenya’s first president, Jomo Kenyatta. As soon as Kibaki came to power, cracks and rivalry within NARC’s ethnic coalition of the Kamba, Kikuyu, Luo and Luhya re-surfaced. At the center of the ensuing ethnic power wrangle was Raila Odinga who accused what he dubbed the ‘Mt Kenya mafias’ of reneging on an MOU that promised him the non-existent position of executive Prime Minister. The NARC coalition came to an acrimonious end when Raila teamed up with Kalonzo (Kamba), William Ruto and Daniel Moi (Kalenjin) and Uhuru Kenyatta (Kikuyu) to defeat a referendum on a government-supported constitution in November 2005.

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Breaking Kenya’s Impasse: Chaos or Courts?

Kibaki axed Odinga and other pro-Orange Ministers. But out of this victory gave birth to the Orange Democratic Movement solidly based on an anti-Kikuyu platform which crystallized into the ‘one-against 41 tribes’ campaign slogan. Ahead of the 2007 elections, ODM split right through the middle with Kalonzo forming his own ODM-K and Uhuru joining Kibaki in PNU, which also enjoyed Moi’s strong backing. Kibaki continued to command support across the country largely because of his economic performance, free primary education and improvement in social services. But his campaign spin-doctors took off from the naïve position that “Kenya is not ready for a Luo president”. Raila moved to counter his assumed ‘inelectability’ by craftily pulling together a multi-ethnic coalition known as ‘the Pentagon’ consisting of himself (Luo), William Ruto (Kalenjin), Mudavadi (Luhya), Najib Balala (Coastal arab/Muslim), Charity Ngilu (Kamba) and Nyaga (Mt. Kenya/Mbeere). Although Kibaki’s PNU transformed itself into a multi-ethnic umbrella party consisting of many parties, it was no match for the Pentagon as a publicity stunt. As the public face of the ODM campaign, the Pentagon was calibrated to de-center politics by appealing to the multiple identities of ethnicity, gender, generation, nationalism, race, religion and regionalism. Despite this, Pentagon was hoisted on a solid anti-kikuyu plank signified by its “one-against-41” campaign strategy aimed to replicate the victory of the November 2005 referendum. The motor driving the Pentagon’s anti-kikuyu alliance was the so-called the “Rift Valley” or “Kalenjin mafias” consisting mainly of wealthy Nandi, Kipsigis and some Maasai elite who called the shots in the Moi regime. Moi may have eventually backed a Kikuyu (Uhuru) as his anointed successor, but this was too little too late. The enduring legacy of his 24-year rule was an obsessive anti-kikuyu sentiment that came to pervade Kenya’s ethnic fabric. In the aftermath of Kenya’s first multi-party election in 1992, Moi lured Raila’s father, Jaramogi Oginga Odinga, into an informal, albeit contentious, pact to counter the Kikuyu maverick, Kenneth Matiba, as the new opposition chief. The political imperative to neutralize another Kikuyu, Mwai Kibaki, as leader of the opposition following the disputed 1997 election compelled Moi to crystallize the Luo-Kalejin détente, enchanted by the historian, Bethwell Ogot, as the ‘Jie Speakers’. On 18 March 2002, Moi took a further step and merged the Luo-dominated National Development Party (NDP) of Raila with his own KANU to form the short-lived “New KANU”, with Raila as SecretaryGeneral and cabinet minister. However, Moi’s decision to anoint a Kikuyu—Uhuru—as heir to his mantle enraged Raila who left the New KANU for Kibaki’s NARC, which pushed the ‘Kalenjin mafias’ out of power in 2002. The dismissal of Raila and Ruto from Kibaki’s cabinet in 2005 gave a new lease of life to the LuoKelenjin alliance cemented by a shared ambition to re-capture the state and a fervent dislike of the ‘Mt Kenya mafias’ for keeping them out of power. In the run-up to the 2007 election, the kid gloves came off, and the ‘Kalenjin mafias’ pledged to “use the boys to teach the Kikuyus a lesson they will never forget”. One of the ‘boys’ earmarked by the Rift valley elite was William Ruto who broke his political teeth as an activist in Moi’s notorious vote-buying outfit, Youth-for KANU 1992 (YK-92). The other ‘boy’ was Raila, whom the former Moi stalwarts like the ODM chairman, Henry Kosgey, and former powerful Secretary to the Cabinet Sally Kosgei believed would pave their way back to power if he won, while his ‘bravery’ as an opposition leader would be enough protection against the Kikuyus if he lost the presidential bid. This clash of ‘ethnic mafias’ turned the Rift Valley—once enchanted by the British colonial supremacists as “the White Highlands”--into a veritable battle-ground during the election and a theatre of the worst tribal carnage after the election. The situation become even more deadlier with the entry of a dangerous strand of America’s rightwing thinking on how to win a narrowly contested election.

Africa Policy Brief No.1 January 2008

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Breaking Kenya’s Impasse: Chaos or Courts?

Enter Dick Morris
A stridently negative campaign that became the hallmark of the 2007 election opened new fault-lines in Kenya’s volatile ethnic relations. This marked a dangerous shift from the post-colonial politics of nation-building which privileged bridging identity gaps within and between Kenya’s 42 tribes to a new kind of politics that brazenly exploited such ‘wedge issues’ as class, ethnicity, generational gap and religion (Muslims-versus-Christians) to win the hearts and minds of voters. This unabashed divide-andwin campaign strategy took a new turn following the frightful debut into Kenyan elections by the American political strategist, Dick Morris, described by a famous BBC documentary as America's most ruthless political consultant. On 13 November 2007, Morris announced that he would be offering his pro bono services for the campaign to elect the Orange Democratic Party (ODM) presidential hopeful, Raila Odinga. The arrival of Dick Morris into Kenyan politics introduced his signature political strategy of combining a gamut of negative campaign themes, wedge issues and opinion surveys to help his clients either win or take over power through civic action in case of disputed results in narrowly contest elections. He had already tried out this strategy in Mexico, Ukraine and with the right-wing UK Independence Party (UKIP) with success. In Mexico, Morris outlined a strategy of negative campaign that utilized gender gap and vilified the leftist candidate, Lopez Obrador, as an ultra-leftist ally of Chavez and Castro to help the centrist Felipe Calderon clinch a narrow win in the 2004 election. As a consultant to the Victor Yushchenko Presidential campaign (2004-2005), Morris insisted on exit polls as a means of potentially exposing ballot tampering, which he claims played a significant role in forcing the government of President Leonid Kuchma to acquiescence to a new election when official results varied materially from the exit survey. Yushchenko went on to carry out a successful civil coup in Ukraine.

Africa Policy Brief No.1 January 2008

Despite the visible obsession among Kenyans with things American, the ODM advertisement of Morris as a former advisor to Bill and Hillary Clinton and an architect of the US-backed Ukraine's Orange Revolution did not endear him to the Kenyan public. Four weeks to the National Elections, the editorial of one of the leading Dailies (The Standard) called into question the legalities of his consulting work from the perspective of his presence, and lack of legal ability to work, in Kenya "pro bono" or "through the back door". Morris hastily left the country. However, the finger marks of his political strategy were all over the ODM’s campaign plan. One of the central planks of Morris Kenyan script, outlined in the ODM’s strategic plan for the campaign rolled out on 8 September 2007, was an intense negative campaign of running down Kibaki’s family and depicting his government as irredeemably corrupt and ethnic. Yet, the ODM was itself a den of Kenya’s chronically corrupt elite, all of whom had been indicted by the famous Ndung’u Report as perpetrators of the most egregious cases of mega-corruption and landgrabbing. More importantly was the exploitation of fault-line issues, mainly anti-Kikuyu crusade, to brand Kibaki as a ‘Kikuyu’ chauvinist in order to alienate his national support and exploit anti-Kikuyu sentiments to win the vote of other communities in multi-ethnic provinces. Closely linked to the anti-Kikuyu crusade was the clamour for Majimboism (ethnic federalism) as a divide-and-win ploy targeting the Kalenjins in the Rift Valley and disaffected Arab-Swahili population at the coast, but marketed as an instrument of devolution of power and resources to the grassroots. Majimboism fatally assaulted civic citizenship, polarizing Kenya’s ethnic groups along the exclusivist binaries of ‘native-settler’, ‘citizen-alien’ and ‘indigenous-migrant’. Its advocates cynically played on the legitimate and shared grievances arising from obvious inequalities, corruption, discrimination and exclusion within, between and across the country to stoke the embers of tribal hostilities, especially in re-settlement areas in the Rift Valley and western Kenya. This partly contributed to the eruption of violence in Kerusoi and Mt Elgon in the Rift Valley and Western, respectively. Whether by design or by coincidence, the violence effectively displaced Kikuyus and Gusiis, with displacement serving as a devise of killing hostile vote. It also set the stage for the post-election violence. Conversely, the anti-kikuyu fever aided the ‘Mt Kenya elite’ to successfully mobilize the Kikuyu, Meru, Embu and Mbeere behind Mwai Kibaki. For the first time since Kenya’s return to multi-party politics, the Mt. Kenya people united, bridging the proverbial Chania River divide.

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Breaking Kenya’s Impasse: Chaos or Courts?

Another key wedge issue was the age-gap. Although the Kibaki administration had reduced poverty from 58 to 46 percent, unemployed and poverty-stricken youth characteristic of developing countries made the concept of ‘change’ that underlined the ODM campaign particularly attractive to Kenya’s young people. In Central province, the age-gap caught up for a while, especially in the aftermath of the bloody confrontation between the Mungiki and security forces in parts of the country. . However, ethnic solidarity soon trumped the generational identity, and the vast bulk of Mt Kenya youth elected Kibaki as president. Despite this, the theme of generational change of guard became manifest in parliamentary elections where the old-guards lost to youthful politicians. Outside Central province, the youth stratum provided fodder to the campaigns of politicians as militias or goons used in creating mayhem in polling stations. In the post-election impasse, youth have served not as vanguards but as vandals responsible for burning and killing. The Christian-Muslim divide in Kenya was also squeezed for any vote it could guarantee in the predominantly Muslim North Eastern and Coast provinces. In this regard, the ODM flag-bearer, Odinga, signed the controversial Memorandum of Understanding (MOU) with a militant Islamic political grouping to ‘protect’ Muslims from harassment and abuses linked to the US-led global war on terrorism. The MOU drew the ire of Kenya’s Christian community. But in Nyanza and the Rift Valley ethnicity, again, trumped religion as many Luos and Kalenjin voted Raila as president. After the elections, political Islam has become a vehicle of mobilizing violent protests particularly in Mombasa, where over 5,000 mainly upcountry (wabara) people were killed and 100,000 others displaced in politically-motivated violence in 1997. Opinion polls as an instrument of democracy made its debut in Kenya during the 2007 elections. But it emerged as the Frankenstein’s monster in Morris strategy that was to haunt post-election Kenya. As in Ukraine, the results of opinion poll, some of which gave Raila a narrow lead, enabled the ODM to claim victory, allege fraud and to prepare the way to reject unfavourable outcome and rationalize riots.

Africa Policy Brief No.1 January 2008

Who Stole the Election?
At the heart of Kenya’s festering crisis is what is now dubbed as “Kenya’s stolen election”. But who stole the Kenyan election? The Western world’s answer to this question is summed up by the Economist’s ‘twilight robbery’ thesis: “The decision to return Kenya’s 76-year-old incumbent president, Mwai Kibaki, to office was not made by the Kenyan people but by a small group of hardline leaders from Kibaki’s Kikuyu tribe…It was a civil coup” (05.01.2008: 34). This, argues the Economist, was done through ballot stuffing. It continues: “All that was needed were extra votes to squeak past Mr. Odinga in what had been among the most closely contested elections Africa had ever seen. That is why returns from Central

Province, Mr Kibaki’s fiercely loyal heartland were inextricably held back. It is why, in some constituencies, a large number of votes seemed mysteriously to vote only in presidential race and ignore the parliamentary ballot”.

The paper further alleges that fiddling had also taken place in Nairobi where ‘Kibaki’s hardliners’ simply crossed out the number of votes as announced in the constituency and scribbled in higher numbers. The paper also alleges hat election monitors were turned away while tallying went on. One of the main sources of this rigging thesis was the European Union observer team whose preliminary report said that the presidential poll had fallen short of “international standards”. Monitors of the EU team even alleged having seen tens of thousands of votes pitched through crossing out the number of votes as announced in the constituencies. This deliberately one-sided perspective by the EU drew attention to the impartiality of international observers, and the almost nihilistic tendency to stoke rather than prevent fires arising from disputed elections in Africa. The EU was initially reluctant to send observers, arguing that the resources for Africa were slim and Kenya was “too stable”. As such, it entered the scene too late to grasp the intricate processes of electoral flaws that characterized Kenya’s protractedly and heavily mined electoral field.

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Breaking Kenya’s Impasse: Chaos or Courts?

Even before EU monitors parachuted into Kenya a few days before the polling day, opinion surveys that showed Mr. Odinga with a razor-edge lead and images of a ‘corrupt’ and crumbling Kikuyu kleptocracy had already swayed them to the opinion that nothing less than rigging would save the Kibaki presidency. Further, western election observation orthodoxy is underpinned by the flawed thinking that only governments can steal the votes from the ‘innocent’ opposition underdogs. Viewing events through this villain-victim prism, many international observers trained the sharpest of their cameras on the “government zones” in a forensic-like screening for all signs of election frauds. In the process, they utterly closed their eyes to the massive frauds by the ODM in its Nyanza home tuff, Rift Valley and Nairobi. At least, the Economist was decent enough to acknowledge that “Mr. Odinga’s supporters were not innocent either”, adding that: “There were irregularities in his home province of Nyanza” (p.34). But it never went on to unearth the degree of these so-called irregularities. Rather, it chose to rub the point home that: “Still, it was the meddling in Central Province that was decisive”--a conclusion that election fraud forensic experts will most certainly find disturbingly biased.

Civil Coup?
What eluded many observers is that, from the outset, the very concept of ‘rigging’ was the lynchpin of a larger build-up to a post-election civilian coup. As one interviewee noted: “Since September [2007], the ODM chiefs have curiously alleged a rigging plot by the government, like an incantation, at least twice a day and in every public forum and media event”. Even before the term of the Electoral Commission Chairman, Samuel Kivuitu, expired in early December, the government acquiesced to the ODM pressure to re-appoint him following its claims that President Kibaki was appointing partisan Electoral Commissioners to aid his effort to sabotage both the voting process and the results. The ODM then turned to the voters roll, alleging a conspiracy to alter voter registers and to do away with the “black book” in order to rig out ODM voters. Even more dramatic, it accused the government of plotting to print parallel ballot paper in Belgium, forcing the ECK as well as Steve Ouzman Ltd, the British ballot printers, to come forward and clear the air. The ubiquity of these rigging claims fostered a climate of distrust and gave rise to the not-so-farfetched view that this was a carefully calculated war cry. It was aimed at preparing the way for the ODM to reject the election results if it lost. During their final campaign rally In Nairobi’s Nyayo stadium on 24 December, the ODM overlords put the country on notice that they were not going to accept anything less than a victory, alleging that the government had already rigged the election, and they could not accept it. Even more scary was the threat by Odinga’s running mate, Musalia Mudavadi, that ODM would pour into the streets as in Ukraine where the official loser (Viktor Yushchenko) disputed the results, resorted to civic action and seized power (from Viktor Yanukovych) with international blessing. Was Mudavadi consciously preparing ODM supporters for the party’s plan to reject the election results, take to the streets and grab power?

Africa Policy Brief No.1 January 2008

Thief in the Night
The fact that Mr. Odinga opened an early lead in election returns in an ethnically polarized vote became the cornerstone of the “twilight robbery” thesis that Kibaki could only have “squeaked through”, and fraudulently so. The PNU had raised its concerns to the European Union observers that the ODM planned to rig the elections by stuffing ballot boxes with marked ballots of Hon. Raila in Luo Nyanza and other areas because there will not be any PNU agents and observers in place. Coming from the ruling party, this complaint appears to have been dimmed as of no merit. The story of the meddling in Central Province has been told. What remains hidden in the dark is how the ODM meddled massively in the voting in Nyanza and its Rift Valley strongholds hopefully to open an early lead, and eventually win the polls. Two subtle strategies were widely used to fraudulently influence the outcomes of election in Luo Nyanza and the ODM zones in the Rift Valley.

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Breaking Kenya’s Impasse: Chaos or Courts?

The first was the systematic use of youth militias to foster a climate of insecurity and create artificial stampedes for two ends: scuttle rival voters and stuff ballot boxes. For instance, in Langata Nairobi, rival politicians charged that the ODM underwrote multiple gangs consisting of between 300-500strong youth militias who provided safety to friendly polling stations and created stampede in centers considered as inhabited by rival groups to slow down the voting process and intimidate voters, particularly women. Not surprisingly, Langata had the lowest turn-out of less than 50 percent. Elsewhere, youth gangs created mayhem in unfriendly stations and inject pre-marked ballots into boxes, leading to the suspension of voting in places like Kamukuji. Insecurity served as a cover that was used to brazenly stuff boxes in Luo Nyanza and parts of the Rift Valley. This became decisive in the ODM early lead in results. As table 1 shows, this resulted in some constituencies recording a voter-turn out in the presidential ballot that went way beyond a hundred per cent mark, and others recording over 100 per cent turnout. Seven constituencies in Luo Nyanza recorded a voter turn-out that scandalously ranged between 92 and 98 percent.
Over 90 Per cent presidential voter turn-out in ODM and PNU Areas Turn-out in ODM Strongholds Turn-out in PNU Strongholds Constituency Percentage 115% 116% 97% 103% 92% 120% 91% 102% 102% 94% 92% 93% 95% 95% Constituency Percentage 90%

Rift Valley province
Sigor Eldoret North Mosop Emgwen

Central province
*Othaya

Africa Policy Brief No.1 January 2008

Baringo North Narok South Ainamoi

Nyanza province
Bondo Kisumu Rural Karachuonyo Rangwe Ndhiwa Nyatike Mbita

Source, Daily Nation (Nairobi) 31 December 2007; PNU submission to the Electoral Commission; Press Statement, 28 December 2007. * ODM disputed 23 constituencies from Central and Upper Eastern, but all were below 83% voter turn out.

PNU pundits claimed that as a result of ballot stuffing in 14 constituencies in Luo Nyanza and the Rift Valley, the opposition fraudulently gained no less than 900,000 presidential votes, enabling it to open an early lead. Despite this, the consistent claim that has torched the nation is that the presidential result was ‘fiddled’ within the ECK, with active involvement of persons who favoured Kibaki’s reelection—an allegation made by ODM and taken up by some observers as a truism. As the voting day dawned, the ODM was deeply worried that the plan to replicate the November 2005 referendum was falling apart. On 23 December, the ODM pundits warned its strategic team that voter turn-out in Central and Eastern Province was likely to be many times higher than the pitiably low turnout during the referendum. This expected voter “avalanche”, they warned, would decisively ensure a Kibaki victory. According to the party’s media monitors, the expected high turn-out was as a result of FM stations broadcasting in Kikuyu and Kimeru languages, which were drumming messages calling for a strong voter turn-out. But it is also worth noting that ahead of the voting day, many businesspeople in the region resolved to close up business on December 27 to allow workers to go to vote. Further, Kikuyu youths launched “operation firibi’ (operation whittle) to ensure that all registered voters in the province cast their votes. Finally, on the voting day, an ‘‘inked finger” was a mandatory pass to access services, including transport, a beer in a local pub, a cup of tea in a kiosk or paraffin in a petrol station.

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Breaking Kenya’s Impasse: Chaos or Courts?

Although these measures resulted in unprecedented voter turn-out in the region, the figures remained within a credible average of below 90 percent. This cast doubts on the veracity of the alleged “massive inflation of voting figures” in Central province and Upper Eastern province. The ODM strategy of countering this obstacle to its victory was quick and subtle. Its spin-doctors advised its agents in Central, Upper Eastern and Nairobi provinces to vigorously dispute every count and demand a new full count before signing forms 16a and 16, which are passed on to the ECK in Nairobi to announce results. Delaying votes from the Kikuyu areas was the ODM endgame: It would enable them to open an early lead while enabling the ODM chiefs to allege fiddling in particularly in Central Province when Kibaki closed the gap. While diverting attention from meddling in Nyanza and ODM Rift Valley, this strategy would refocus media spotlight on the Kikuyu-dominated areas as the real theatre of rigging. And the strategy work, aided by a feloniously inept Electoral Commission.

ECK: Compromised Broker?
From its formation in the 1990s, the Electoral Commission had developed a demonstrably reasonable capacity to competently managed elections and to release of results on time. By December 27, it had to its credit three multi-party elections, a referendum and numerous by-elections. What happened in 2007? The commission’s role particularly during the vote counting on 28-30 December has been characterized as ‘doggy’. Its snail’s pace and pattern of releasing results opened the ECK’s competence and preparedness to question at a particularly tense moment in the country’s history. This stoked suspicions that the results were being ‘cooked’ by returning officers to favour certain Presidential candidates.

Africa Policy Brief No.1 January 2008

Speaking later to the privately-run Kenya Television Network (KTN), Kivuitu disclosed that: "The European Union (EU) mission and Maina Kiai (Kenya National Commission on Human Rights) chairman wanted me to postpone … by a week so as I can investigate the allegations of irregularities". Kivuitu further declared that: “Kiai called me four times but the Party of National Unity (PNU) and the Orange Democratic Movement of Kenya (ODM) pressurized me to announce the results. At one point I contemplated resigning but later thought that Kenya is bigger than me." The visibly unprofessional way in which the Chairman of the Commission addressed some of these anxieties did not help the situation. On 29 December, Kivuitu shook the nation with his announcement that delays in the presidential elections were caused by the disappearance of senior poll officials who had gone to "cook [results] for people who were paying them". As tension mounted, the ECK Commissioners were collectively and individually opened to pressure from both national and international interest groups. On 29 December, Raila and some key ODM Pentagon members had their cover blown when they were found holding a secret meeting at the Palacina Hotel in Nairobi with four ECK officials from Western Kenya as counting went on. The same four commissioners were later to allege that when confronted by angry members of the public, the four officials were sneaked out of the hotel disguised in hotel uniform, but one was arrested by police with a tally recorder marked for Tijana East constituency and taken to Kilimani police station. Kivuitu may have been blamed for the post-election mess by declaring Kibaki as the president, paving way for his swearing at State house the same day. For Kenyan observers, his admission that the presidential election may have been tempered with simply confirmed what the PNU and ODM had told the commission, but it eroded its own credibility and that of the 2007 election. However, like a good lawyer, he pointed to the direction that Kenya should take to resolve any dispute emanating from the election: the courts. This is still the route that should be taken.

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Breaking Kenya’s Impasse: Chaos or Courts?

Conclusion
Kenya is facing perhaps the most profound test of its stability and institutions as it moves into its fifth election cycle. The 2007 election has ended in a dispute. The role of international mediators and wellwishers ike Desmond Tutu, John Kufor and Kofi Annan who have played a pivotal role in trying to break the impasse and normalize the situation, but the crisis persists. But while their role is a welcome gesture of good will to the people of Kenya, overstretching mediation may permanently erode the credibility of Kenya’s established courts and other arbitration institutions which Kenya’s people have painfully nurtured for the last 44 years. What has come to be called the Kenyan crisis is a perfectly normal situation that from time to time confronts in democratic systems. It should never be likened to ‘political crises’ in other parts of Africa like Somalia or Darfur-although Kenya may get there if this is not addressed expediently. Rather, what Kenya is witnessing is an election dispute like the one that engulfed America in 2000 when the Democratic and Republican party candidates disagreed on the process and results. While elders like Jimmy Carter and James Baker were called by both sides to cool tempers, all parties to the dispute were agreed that the court system—with all its faults, including partisan and ideological interests--was the way to go. Kenya will have many more disputed elections 200 years today. No matter how compromised the court system may be, it is still the only credible and sustainable arbitration mechanisms open to, and ever invested by, civilized societies. Kenya needs the courts to suggest the way forward, not mediators to broker transient deals and power pacts among powerful elites. Certainly, chaos in all its guises is never the way out. Kenya must now return to reason. The opposition should stop all its mass action because it can only produce another disputed, and possibly dictatorial, regime. The government should guarantee that the dispute will be dealt with within reasonable time—no more than three months. It might be necessary to call in judges from other commonwealth countries to provide the necessary neutrality and restore the confidence of the parties to the dispute in the courts. Finally, all parties must be prepared to honor the final verdict of the courts: a recount, a re-run, or a victory of either of the parties. The role of the court should be supported by national mediators and the media who have to do the spade work in reconciling communities torn by violent conflict and calming the nation. The national healing process must of necessity involve the resuscitation of Kenya’s multi-ethnic vision based on civic rather than ethnic citizenship, sanctity of law and public order and the courts as the supreme arbiter in all disputes, including election ones.
_____________________________________________________ This report was researched and written by Dr Peter Kagwanja with input from API researchers in Nairobi and Pretoria. It is based on research carried out between August 2007 and January 2008.

Africa Policy Brief No.1 January 2008