Key events and unlikely actors that will shape Kenya in 2014

The supreme court of Kenya judges. President chooses, he will share the spotlight with the Chief Justice. It seems inevitable that almost every major political dispute in the future will end up in the Supreme Court. PHOTO/FILE

What you need to know:

  • Will Kenya begin to consolidate its position as one of the continent’s economic and political success stories?
  • The President promises the youth a role in government, but satisfies his conservative supporters with the appointment of the likes of Francis Muthaura. 
  • The President has two choices. First, he can govern in an inclusive and open style.
  • This would require him to respect the position of the Supreme Court if it rules any of his legislation unconstitutional, to appoint more Cabinet Secretaries from other communities, and to fulfil the Jubilee Alliance’s election promise to build technology centres in every former province. 

Kenya finds itself in a familiar position. 

Just as at various other points in its 50-year history as an independent state, the country is caught between the opposing forces of democracy and autocracy.

On the one hand, the 2010 Constitution ushered in a more democratic political system and the 2013 elections were relatively peaceful.

On the other hand, the Jubilee Alliance Government has moved against civil liberties. 

Moreover, the government’s resort to autocratic methods of rule appears to increase in order to disguise moments of incompetence, such as the response to the Westgate terrorist attack.

2014 is therefore a critical year.

Will Kenya begin to consolidate its position as one of the continent’s economic and political success stories?

Or will it lurch back to the authoritarian tendencies of the Daniel arap Moi era – where, lest we forget, both the President and his deputy cut their political teeth.

As we look ahead to the year, we have identified four key individuals and four themes that we think might shape debates in the months ahead.

We are not fortune-tellers.  The defining images of 2013 – from the CCTV cameras and journalists’ cameras at the Westgate mall – were not ones that we would have predicted in January of last year.

No doubt similarly unexpected events will come to define 2014.

Some of our choices will seem obvious, but others are less so.

As the most recent Synovate poll revealed, readers do not need to be told that the cost of living, a shortage of jobs, crime and insecurity or corruption will be major political issues in 2014. 

Nor do we need to stress the point that there is widespread disgruntlement with the government.

PRESIDENT KENYATTA

With an approval rating of 53 per cent, however, Kenyatta can take some succour from the Synovate poll.

Blame for the failings of his government is being apportioned elsewhere. But the President deserves as much criticism for the shortcomings of his government as did any of his predecessors. 

In theory, the 2010 Constitution should have limited the scope of Kenyatta’s powers. 

However, the President has taken advantage of uncertainty, ambiguity and confusion about the division of power in the new Constitution to retain considerable influence beyond that designated to his office. 

This will make him the key actor in 2014, although perhaps he should not be.

Mr Kenyatta’s high approval rating is probably due to his successful execution of a difficult trick in the few months he has spent in office so far. He has, to date, managed to appear all things to all men and women. 

The President promises the youth a role in government, but satisfies his conservative supporters with the appointment of the likes of Francis Muthaura. 

Kenyatta advocates austerity and fiscal discipline, while also championing some of the most ambitious development projects in the country’s history.

He presents himself as the face of corporate Kenya open to foreign investment, but accuses friendly governments and local political opponents alike of neo-colonialism.

Most important of all, he has simultaneously played the role of democrat committed to the defence of the new Constitution and the autocrat set on limiting the powers of the press.

In 2013, the President was able to use this ambiguity to his advantage, presenting himself as the guardian of the rule of law while effectively presiding over a period of democratic backsliding. 

This trick can be performed for a few months, but to sustain it over several years would seem unlikely. 

At some point soon, each of these apparently irreconcilable positions will require clarification.

The President has two choices. First, he can govern in an inclusive and open style.

This would require him to respect the position of the Supreme Court if it rules any of his legislation unconstitutional, to appoint more Cabinet Secretaries from other communities, and to fulfil the Jubilee Alliance’s election promise to build technology centres in every former province. 

Or, second, he can choose to take on his enemies, real and imagined, and consolidate his power.

If he chooses this course of action – and his approval of the media Bill suggests he will –it will undermine the new Constitution, the opposition, and Kenya’s international reputation.

CHIEF JUSTICE WILLY MUTUNGA

Whichever course of action the President chooses, he will share the spotlight with the Chief Justice.

It seems inevitable that almost every major political dispute in the future will end up in the Supreme Court. 

Following the controversy that surrounded the Supreme Court’s rejection of Cord’s election petition, the reputation of Dr Mutunga, and the court more generally hangs in the balance.

How Dr Mutunga and the court perform this year will determine whether Kenyans, and more specifically civil society and the opposition, feel that they can trust the Judiciary.

The Supreme Court is likely to have to rule on the constitutionality of the Information and Communications Bill.

The legislation is clearly unconstitutional, so what will be tested in this case will not be the law but the Supreme Court’s willingness to enforce it.

Other major cases may also come before the Court in 2014 if the government continues its attack on the media and civil society.

This will test Dr Mutunga in two ways. First, it will test his commitment to the new Constitution. Second, it will test his authority within the Supreme Court.

We have already seen that the Chief Justice is not always able to carry his colleagues with him – most notably in the case of the Gender Quota when he was heavily outvoted and expressed his frustration by publishing a dissenting opinion.

In that case, Dr Mutunga’s determination to stand up for the Constitution counted for little once the votes had been counted.

He will need the same determination and a more persuasive argument if the Supreme Court is to defend the gains that Kenyan democracy made with the passing of the 2010 Constitution.

As a result, the Chief Justice’s personal story will be intimately entwined with that of the nation.

GOVERNOR EVANS KIDERO

If Dr Mutunga will tell the story of judicial independence, then any account of the future of Kenya’s experiment of devolution will inevitably feature the governor of the country’s most populous and important county.  

Dr Kidero proved he has the capacity to win a challenging election in 2013, but he will have to prove his mettle as a governor and leading opposition politician in 2014. 

With Raila Odinga’s decline and the vacuum at the head of the Orange Democratic Movement, Dr Kidero is well placed to become the new focal point of the opposition.

But while the Nairobi Governor has won one of Kenya’s largest political prizes, it will count for little if he cannot effectively run the capital and project his power on to the national stage.

Given his business experience as CEO of Mumias Sugar Company, many commentators expect Dr Kidero to be a reform-minded leader capable of getting things done.

No one can accuse the governor of resting on his laurels. The Nairobi City County Finance Act abolished all the by-laws and resolutions of Nairobi City Council and sought to secure the capital’s finances for generations to come.

This was clearly a necessary move, and one that suggested that Dr Kidero is keen to follow in the footsteps of Babatunde Fashola, Governor of Lagos State in Nigeria, who has raised tax revenues so high that the state is no longer dependent on transfers from the central government.

But Dr Kidero appears to have ignored two of the most important lessons of the Lagos success story: tax increases need to be legitimised by better public services if they are to be accepted, and taxes should never be used to dissuade people from doing things that benefit the community.

Governor Fashola would never have asked Lagosians to pay Sh5,000 to grow a tree in their own compound and Sh15,000 to operate a plants nursery.

In his zeal to transform the city, Dr Kidero forgot to take the public with him, a mistake that has called into question the credibility of his leadership.

The governor’s embarrassing scrap with Nairobi Women Representative Rachel Shebesh did little to strengthen his reputation.

The incident also raised important questions about where Dr Kidero’s loyalties lie.

Following the elections he was widely seen to be sympathetic to the Jubilee Alliance, and was taken on President Kenyatta’s tour of China.

But the governor’s refusal to toe the party line and stay in the background is said to have enraged a number of Kenyatta’s most prominent supporters – including Ms Shebesh.

This seems to suggest that Dr Kidero does not feel strongly about party loyalty and is first and foremost out for himself.

In 2014, Dr Kidero may have to take sides. If he chooses to distance himself from the ODM, it will create another barrier to the opposition uniting under an effective leadership.

RACHEL SHEBESH

The controversy surrounding Dr Kidero’s altercation with Nairobi Women’s Representative Shebesh — and her dispute with Senator Mike Sonko — is indicative of her emergence as a significant political figure.

With Martha Karua’s retirement from politics and Charity Ngilu’s “flip flopping” ahead of the 2014 elections, Ms Shebesh has emerged as one of the country’s most well known female political leaders.

As Temporary Deputy Speaker she has even reached a position of genuine political importance.

But her performance to date has done little to demonstrate the great value that women can add to Kenya’s political landscape.

The taint of scandal that has accompanied her rise to prominence has done nothing to persuade Kenyans that more women should be elected to public office.

In 2014, Ms Shebesh has the opportunity to make amends. This will be a critical year for women in Kenyan politics.

If the gender quota set out in the Constitution is to be implemented ahead of the next election, planning needs to start now.

Given the lack of political will shown by the National Assembly on this issue in the past, moving this debate forwards is likely to require strong and effective leadership – and this is the challenge for those MPs, like Ms Shebesh, who were elected as County Women’s Representatives.

Ms Shebesh may not seem like an obvious person to lead this charge, but away from the political fray she has held a number of important positions: as a member of the Kenya Women’s Parliamentary Association, as a champion of the Kenya Disability Network, and as a Presidential Adviser on the United Nations Development Fund for Women (UNIFEM).

These are all important causes and if she starts to use her position within Parliament to advance the position of Nairobians and of Kenyan women more generally, she can rehabilitate her own reputation by ensuring the implementation of the Constitution.

DEVOLUTION AND DECENTRALISATION

As our choice of Ms Shebesh and the three other key actors suggests, we and every other political analyst expect the major political battles of 2014 to be fought about the distribution of powers between the different branches of government. 

History suggests that the conservative, centralising force within Kenyan politics will win in its struggle with the devolutionary instinct that seemed to have popular support in the 2010 referendum.

This will place great tension on the Jubilee Alliance.

Pro-devolutionary supporters of Mr Ruto will find continued frustration by Mr Kenyatta’s faction of the process of a transfer of power to the counties difficult to tolerate. Promises of a future endorsement by Mr Kenyatta of Mr Ruto when it is the latter’s turn to run for president may be enough to keep these disputes over devolution to manageable levels for the lifetime of the current government, but that is far from certain.

We have all become accustomed to the disputes over the counties’ functions and the funding disputes between central and local government.

But one trigger for an escalation of these rows will likely be debates surrounding the impending new mining, oil and gas laws needed to regulate mineral exploration and production.  

Counties will demand a significant share of royalties accrued from the exploitation of Kenya’s local resources. 

With expensive election manifesto promises to keep and with no money to spare elsewhere in the budget, central government will be reluctant to surrender too great a share of the revenues to the counties.

OPPOSITION

Given Cord’s stance on devolution, one might expect the opposition in Parliament to mount a fierce defence of the process of devolution.

Although unable to challenge Jubilee’s control of the two houses in Parliament, the opposition has a strong representation across the country in county assemblies and in gubernatorial posts.

Despite this strength, the opposition’s record since the election has been poor. 

Cord’s politicians have been unable to seize the initiative in debates with the government, lacking effective leadership and outwitted at every turn by the Jubilee Alliance.

The effect has been to leave important voices outside of party politics isolated. 

The churches and human rights groups have been steadfast in their defence of the Constitution and on the ICC, but without great effect. Press freedom needed far more vigorous defence than Cord managed.

In 2014, Cord has its own dilemma to resolve.  It needs to decide what the purpose in opposition is.

Should it, as seems to be the case now, wait for the Jubilee Alliance’s internal divisions to cause the government’s collapse in the hope that a deal can be struck with Mr Ruto ahead of the next election? 

Or should it take a stand on matters that affect all Kenyans and hold the government to account?

FOREIGN RELATIONS

One area of policy that a vigorous opposition should be scrutinising is the country’s foreign relations. 

Although some of the current major trends in Kenya’s foreign policy pre-date the current government, dramatic changes have taken place in recent times and deserve far greater public debate than has hitherto occurred.

Obviously, the ICC cases have harmed relations with erstwhile Western allies over the course of the past 12 months.

Should Kenyatta’s case be dropped due to a lack of evidence, relationships with the United States, Britain and other European countries will become easier.

However, the allegations of witness tampering made by Fatou Bensouda will continue to cast a shadow over the Kenyatta government’s reputation in Western capitals.

By contrast, the diplomatic effort to have the cases dismissed has strengthened Kenya’s relations with its African counterparts. 

Relations with some of its neighbours are particularly good. New Year’s Day marked another milestone in the process of regional integration with the implementation of the new Single Customs Territory.

No doubt numerous summits of East African leaders will reiterate commitments to monetary union and political federation throughout the coming year.

However, the East African Community needs urgent attention if it is to survive the current wrangles between its members. 

After a year of disputes over the DRC and infrastructure development, the EAC is a house divided. Kenyan diplomats would do well to try to facilitate a rapprochement with Tanzania.

But Kenyatta’s government will face far greater challenges than attempting to reconcile the EAC’s self-styled ‘Coalition of the Willing’ with Tanzania and Burundi.

Shared security and development priorities mean Kenya’s future is closely tied to that of its neighbours, so requiring a more pro-active diplomatic effort.

Brokering peace in South Sudan will be one immediate priority. But no other country is as important to Kenya now as Somalia. 

The public has borne the increased security threat posed by Al-Shabaab since Operation Linda Nchi began in 2011 with patience and grace.

But another attack like that witnessed at the Westgate mall may change the public mood about the necessity for a continued military presence in Somalia.

SHORT ATTENTION SPANS

The Westgate attack is yet another episode from which the Kenyan public has been urged to ‘Move On!’ 

Beginning with the short shrift given to those who questioned the conduct of the election and ending with MPs’ attempts to edit the Truth, Justice and Reconciliation Commission report, the year was marked by several attempts to silence the past.

Detailing his frustration with this effort to forget the past, Patrick Gathara recently labelled 2013 as ‘The Year of Forgetting.’ There seems little prospect of change in 2014.

It now seems likely that the charges at the ICC against Kenyatta will be dropped. In such circumstances, it is uncertain whether or not Ruto’s case would continue.

In the event of one or both trials halting, Kenya will face the question about whether or not to restart public debate about the violence of 2007-8.

Whatever one thinks about the ICC, it has been the only mechanism for continued interest in the causes of the post-election violence over the past few years.

If the cases there are dropped, the temptation to forget the victims entirely will be almost overwhelming.

Politicians from all parties have reason to fear any future effort to prosecute those responsible for the post-election violence.  And many ordinary citizens will, understandably, feel revisiting the past to be unhelpful.

But can the country or the government afford to forget the violence of six years ago? Events in 2013 suggest not.

The State’s security forces were shown to still need urgent reform by the mishandling of the Westgate attack.

And the clashes witnessed across northern sections of the country over the final few weeks of the year suggest we still know little about how to prevent such violence. 

If Bensouda does withdraw the charges against Kenyatta, the fevered political atmosphere may reduce just enough to allow a renewed national debate about political violence. 

The current government is secure in its position and elections are not due until 2017. If not in 2014, when will such a debate ever be possible?