Kenya's Elections: Key Challenges

Speaker:
Henry Maina, Warwick University

Discussant:
Jeremy Lind, Research Officer, LSE

Chair:
Councillor Marianne Alapini, Royal Borough of Kensington & Chelsea

Chatham House
14 December 2007

This summary is issued on the understanding that if any of the information is used, the speaker and Chatham House should be credited, preferably with the date of the event.

On December 27th elections will take place in Kenya. The incumbent President Mwai Kibaki, and his Party of National Unity coalition, faces a strong challenge from veteran Raila Odinga and his party, the Orange Democratic Movement. Henry Maina, Deputy Executive Director of
the Kenya Legal Resources Foundation offers an overview of the various key actors and suggests what this may mean for Kenya and the region.

Speaker

I would like to thank you for putting Kenya and indeed Africa at the heart of your programme. I would like to share with you some of the key challenges that the majority of Kenyans face as they prepare to cast their votes for the fourth time in an emerging multi-party democracy. Most of them will be voting for the first time. Kenya is a strong country. It takes its place of leadership in regional and international affairs and is a pace-setter in political and economic governance. Kenya is second-to-none in the region in terms of clear efforts to secure its lush forests and wildlife as viable endowments that have been "borrowed from our children." Kenya is also mentioned when discussing efforts on regional integration, conducting peace with war-torn neighbours and providing support for millions deprived of the safety of their homes in Somalia, Sudan, Ethiopia and Eritrea.

However, if the elections on the 27th are going to be successful there are still some major hurdles for us to clear. The picture now is not altogether an encouraging one. Numerous problems confront us, one of the biggest being the perception of Kenya as a democracy, inside and by the West. Yet we face real challenges that are ripping our nationhood apart: poverty, unemployment, insecurity, inequality, domestic violence, negative ethnicity (what some call
'tribalism') and corruption.

Within the context of the larger rubric, I wish to critically discuss some of the challenges facing Kenyans as we take the last gasp towards the finishing line during the election. The discussions around the country centre on the following:

A. Biased Development/Inequality

Kenya's economy has grown from a miserly -0.3 percent to nearly 7 percent in the last five years. This is a great achievement. But inflation and the increased cost of living have robbed Kenyans of all the gains that should have been the result of such an increase. The cost of a packet of maize meal is now twice what it was in 2001. Levels of impoverishment have increased.

Budget distribution has been inadequate. Any assessment of the government's bigger development budget will indicate so. Most politicians in the current administration as well as in the opposition would probably point to the Constituency Development Fund as a positive. A more accurate view is that it is a good initiative, poorly executed and hijacked into becoming a cash-cow for politicians. Its lack of success has contributed to the rage already shown in the primary elections where most incumbents were voted out.

B. Religious profiling/Discrimination

Clear patterns of discrimination have been sustained from the first two governments. People from the coast and North Eastern province have largely been isolated and prejudiced against. Worse still, in the "war on terror" and "wars of terror" they have faced rendition to other states and been subjected to torture and death. It is estimated that in the coming elections, 3 million
Muslims will be seeking to support leaders purely on the basis of promising to change the situation.

C. Impunity and disregard of rule of law

There are a number of systematic schemes where the executive has chosen to disregard the law. This in itself has two effects: citizens lose trust in the system and it maintains certain individuals' beliefs that they can continue operating without a duty of care and responsibility. It is no wonder that insecurity is a runaway threat to Kenyans.

D. Corruption

It should be remembered that in 2003 Kenya was rated among the most positive countries in the fight against corruption. We saw citizens arresting police officers who sought bribes. At the time the government introduced two pieces of legislation in the fight against corruption: The Public Officers Ethics Act (POEA) and Economic Crimes Act (ECA). Although useful, they are
not fully supported by the executive. The ethics act is good but criminalises more disclosure and transparency. Structurally, it enables only minnows such as district officers to be prosecuted.

The wealth declaration forms are in themselves not useful if they do not get to be scrutinised by the public. The ECA on the other hand has not been utilised at all. The result is that the alleged fight on grand corruption has stalled in its tracks. The Goldenberg Inquiry turned into a money guzzling fiasco and the Anglo-leasing affair, born by the previous government, has simply been
nurtured and matured during Narc's reign. Something must be done.

Impeaching corrupt ministers has proven to be extremely difficult. Why do I highlight MPs? Because the President's party as well as opposition have a clique of corrupt groups, all of whom buy into the rhetoric of cleanliness, but who are in fact far from it themselves. The biggest problem of corruption lies with KANU, which of course forms part of the PNU going into the upcoming elections. We have a problem where the leader of the opposition is now backing the incumbent, and he himself is linked to corruption through his father, Kenya's first President. Kibaki is also being backed by former president Daniel arap Moi, who would see three of his sons become ministers if the current president is re-elected. The underlying point here is that if the opposition doesn't offer us any hope by broadening democracy, how can any movements be made on tackling corruption? This is a tricky moment as politicians seem to agree only in as far as they remain in power.

E. Disenfranchisement of voters and unfair practices

There are cases of increased misuse of state resources during the holding of by-elections after a number of legislators perished in an air crash. This type of action continues to occur as people campaign today. There are also cases of ethnic violence and clashes in certain regions thought to be opposition strong holds. The government is not doing enough to offer security. The net effect is that citizens in those regions may not vote. As we speak, Kenya has embraced the mould of privatisation. Studies show that some sectors can be successfully privatised more than others. However, the privatisation of public services is being done in a rush and national resources are being thrown away in the name of efficiency. We are looting the country for a few rich people. According to the Elections Code of Conduct, Kenya Broadcasting Corporation, with its affiliate radio and television stations is supposed to give equal air time to all presidential candidates.

However, while President Kibaki has been covered, due coverage has not been given to the other two main opposition presidential candidates. In fact most of us would not know that there are nine presidential candidates in Kenya.

F. After the elections

After the election the key challenge will be to entrench democracy and the positive changes the current administration has made through all political parties. Will these parties become instruments of exercising and mobilizing Kenyans around social issues and informing national decisions, or just vehicles to sanitise "crooks?" What is disturbing is the seeming obsession with power and position. There is a need for senior politicians to understand that leadership is not just about position; it is about positive influence.

The fact that the whole political spectrum has some of those suspected to have engaged in corruption, means that there is a likelihood that the war on corruption will once again be aborted if it is not centred outside the executive. It has been speculated that 900 million KES has been used for corruption around the elections just up to this date and it is estimated that by the time we reach the elections this figure could top 2 billion KES. The questions how, why and by whom we do not know, but it is critical that we find out.

This brings me back to the question of values. We need to shift decisively from a world where a small minority lord it over the majority. Many of us here are privileged in many ways; we must bring the rest of our sisters and brothers with us. The values that should drive the image ofKenya's future are the values of dignity, justice, honesty, integrity and hard work. They are the values of humility and mutual respect and the equitable distribution of the burdens and the benefits of belonging.

The "new leadership" that emerges from this election must become the voice of a new generation of Kenyans, who are emerging to answer new historical challenges; the voice of young men and women who will define themselves as leaders by their capacity to identify the issues that unite us as a nation.

Jeremy Lind, LSE

The position and situation of Muslims in Kenya has been disproportionate. Before now their collective head has been below the parapet. However, they could now vote in a single block, making them potentially quite powerful in the elections. There has been an ongoing renditions controversy with people being extradited to Somalia and Ethiopia. Also, supported by the US and the UK, Kibaki has pursued a strict anti-terrorism crackdown, which has led to claims of illtreatment from the Muslim community. The indications are that they will support ODM.

The UK government's position in Kenyan affairs has weakened considerably. Although the UK is still the largest investor in Kenya, only about 5-10 percent of Kenya's government budget is supported by UK's official development assistance. The UK's position has become increasingly associated with that of the USA and its actions: the war in Iraq, resentment for not speaking out
against the Israeli bombing of Lebanon last year and the lack of response to issues in the Horn of Africa have all damaged the perception of the UK amongst Kenyans. Also, the UK's counter terrorism operations have damaged their moral authority to speak out on human rights issues in Kenya.

Question & Answer

Q. After all that's been done in the last three years, could you rig an election in Kenya?

A. It would be hard to rig them by stashing ballot papers like in 1988 or 1993. However, I'm sure there will still be some orchestrated clashes occurring, which will prevent some people from voting. Also, voting can be swayed if there is fighting and the government are not seen to be quelling it. Rigging also occurs in other ways such as the President being given 75 percent of the television market when laws exist that should ensure equal coverage.

Q. Is there a significant distinction between the position of non-Muslims and Muslims with regard to feeling on the US?

A. Is terrorism a Muslim condition? I worked for the Anti-terrorism Coalition in Kenya for three years. We worked tirelessly to prevent the terrorism bill from being adopted because it is not a law that would work in a democracy. In the UK this type of bill would not even have been drafted because of the extent that people's civil liberties would come under threat. We were facing a reality where people's property could routinely be confiscated and there would be a "shoot now ask questions later" policy. We have been criticised for not doing enough by our international partners, but we cannot go around blaming our own innocent people. Many of the people extradited to Ethiopia and Somalia were not Muslims. These are tactics that should not have been allowed. For example, the four Kenyans who now reside in Guantanamo Bay were not on
any US list, but were conveniently added to it after capture. This shows Kenya has lost total objectivity in the process. There is great resentment over this issue – it is not just about Muslims. Kenya should not allow other nations to impose on their sovereignty by telling them what to do. Let us run our country by ourselves.

Q. We seem to be caught between the west and its war on terror, and the bad guys who will come and bomb Kenya. What is the future of Kenya given that scenario?

A. There are two wars: the war of terror and the war on terror. The problem is that we do not know what terrorism is and with whom we are waging this war. What a waste of the essence of elections when we do not give democratic processes and structures a chance. If Somalis thought that the Islamic Courts would bring them stability and peace, should the West not work with them? The TFG is only there because the US and Ethiopia are backing it. Internally,
everyone else is fighting it. The clampdown on Hamas in Palestine is another example. Yet the UK said nothing about the inconsistency of George Bush being elected ahead of Al Gore.

Q. Do you think that the Muslim vote can be the deciding vote?

A. (Jeremy Lind) Muslims make up approximately 10-20 percent of the population, so their vote could make the difference.

A. As a group Muslims face the worst inequality and poverty in the country. If you add this issue to the war on terror, they have been made into second class citizens. All of the main parties are trying to secure memoranda of understanding with Muslim leaders. However I disagree that the Muslims will vote together as a block. They do not have a galvaniser such as the late Sharif
Nasir.

Q. What more can the UK do to help tackle corruption in its position as a historical partner to Kenya?

Q. Could you also elaborate a bit on the structure of the elections?

A.1. I believe the UK can help Kenya as it is doing currently, by helping to institutionalise change. DFID has a Government, Justice and Law & Order Plan that it is funding in Kenya but so far it has only led to cosmetic change. You can't continue to fund the judiciary if they continue to not work properly from the inside.

A.2. These upcoming elections have three possible outcomes: In the first instance, there can be a simple majority; in the second instance, a candidate must win 25 percent of votes in at least five provinces; and in the third instance a candidate cannot win if he is not elected as a minister.

This means that it is possible for a candidate to gain a simple majority but without the 25 percent needed in the five provinces. This could lead to contestation and questioning of whether there is a legitimate winner. It is a challenge that the Law Society in Kenya (ECK) is discussing right now. There is no unanimous position between academics on what would happen in such a
scenario. The primaries indicated that the Kenyan people are questioning who is steering the main parties behind the scenes. Kenyans are holding their politicians accountable. The problem occurs between elections, when these cliques of powerful politicians prevent those in opposition from growing, so that we can maintain a viable democracy.

http://www.chathamhouse.org.uk/publications/papers/download/-/id/586/file/11375_141207kenya.pdf