On September 17, 2008, Judge Johann Kriegler, the chair of the Independent Review Commission, concluded that the 2007 elections were so “materially defective” that no one could know who won them.
In contrast, CJ Willy Mutunga declared on March 30, 2013, that this year’s presidential elections were “free, fair, and transparent”. That’s the “legal opinion” of a “unanimous” Supreme Court.
But a “legal opinion” and “material reality” could differ. Even though most people have accepted the court’s ruling, a large number are using Judge Kriegler’s words to describe this year’s election — they are unconvinced the election wasn’t “materially defective”.
That’s called freedom of thought and conscience. But there’s a bigger question. Why did the Kenyattas top the Odingas — again?
Scholars will forever debate whether Jubilee flag-bearer Uhuru Kenyatta won the election, or Cord’s Raila Odinga lost it. I am convinced we’ll never know the truth. That’s because the Supreme Court’s judgment is final, and there’s no opportunity for further review.
In reality, this leaves the country divided down the middle. Whether President-elect Kenyatta can overcome this chasm remains to be seen. His predecessor, President Mwai Kibaki, never overcame the illegitimacy of the 2007 elections.
But no matter where you fall on the political divide, you must ponder what Mr Kenyatta’s “defeat” of Mr Odinga means for Kenya. Tribal jingoism and chest-thumbing can’t wish this pivotal question away. These two key protagonists represent more than their individual selves.
There are four reasons Mr Kenyatta “vanquished” Mr Odinga. The first reason is simply who controls the State. This is a historical matter. Some have argued, incorrectly, that both Mr Odinga and Mr Kenyatta belong to the same political class. I say baloney.
Mr Kenyatta is a bona fide “insider” while Mr Odinga is an “outcast” and an “outsider”. Mr Kenyatta belongs to the faction of the ruling elite that’s always controlled the Kenyan state.
Mr Odinga has led an elite that’s always knocked on the door, only to be turned away at every turn. Even as Prime Minister, the closest he’s ever come to the inner sanctum of power, Mr Odinga was relegated to the margins.
It’s true Mr Kibaki and State House mandarins may have tried to stop Mr Kenyatta from succeeding him, but he outsmarted them. Mr Kibaki’s aides thought Mr Kenyatta woes at The Hague wouldn’t be good for business.
Nor did the optics of one Kikuyu succeeding another look attractive. Word was that State House fronted UDF leader Musalia Mudavadi as a “safe pair of hands”.
That term simply meant someone who wouldn’t disrupt the status quo. That’s because Mr Mudavadi — though Luhya — is a true insider. By birth and ideology, he’s part of the multi-tribal elite that’s run the Kenyan state since independence.
But Mr Kenyatta cannibalised Mr Mudavadi’s candidacy through chicanery and skullduggery. He outfoxed Mr Kibaki’s aides. In the end, Mr Mudavadi’s lone entry into the race ate into Mr Odinga’s support among the Luhya.
This brings me to the second reason why Mr Kenyatta emerged “victorious”. He was able to cobble together a large collection of tribal voters while “dispersing” some critical Cord strongholds, most principally the Luhya.
The tribe remains king in Kenya’s electoral map. The Big Five — the main ethnic groups that make up 70 per cent of Kenya’s population — determine presidential elections.
I doubt Mr Kenyatta reached the required 50 per cent plus one vote to win outright — given the irregularities adduced at the Supreme Court — but I think he assembled enough tribal votes for a run-off. That wouldn’t have been possible but for the tribe.
The third reason for Mr Odinga’s “defeat” is “patronage” and “patrimony”. The Odingas and the Kenyattas come from different worlds. The Kenyattas — according to public records and Forbes magazine — are one of Africa’s wealthiest families.
There’s no doubt Mr Kenyatta used his large family fortune to bankroll the Jubilee campaign. The Odingas aren’t paupers, but they are poor compared to the Kenyattas.
Once Mr Kenyatta swept Mr Mudavadi aside, he quickly mobilised a large portion of the Kikuyu business elite to back him. He built a formidable election war chest.
Political democracy isn’t simply about ideas and votes. The right to speak — and canvass for votes — is a contest between those who have more money, and those with less.
The last reason for Mr Kenyatta’s triumph lies in the historical contest between the Kikuyu and the Luo — and their location in the State. Mr Odinga’s father, the opposition doyen Jaramogi Oginga Odinga, went mano-a-mano with Mzee Jomo Kenyatta, and lost big. This struggle was tribalised as a contest for power between the Luo and Kikuyu.
That narrative took hold with the elimination by the State of Luo political rock star Tom Mboya and Foreign minister Robert Ouko, not to mention the detention of Mr Odinga himself under the regime of Kanu’s Daniel arap Moi. The 2013 election was a continuation of the Odinga-Kenyatta face-off.
No one knows what’s in store for the man known as Agwambo after his “defeat” by “kamwana”. Will this be his last run at the highest office in the land, or will he hang up his boots? Have the Kenyattas conquered the Odingas for good? Is that family — and ethnic feud — over? May be not. I am not ready to write Mr Odinga’s — or his family’s — political obituary.
Apart from his father, he’s Kenya’s most important political post-independent reformer. His story isn’t a Greek tragedy because Kenyans enjoy many civil and political rights today because of him.
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.