Uncertainty will remain even after Kenyatta’s swearing-in

The bitterness arising from the just-concluded presidential election will continue even after Tuesday, the day Uhuru Kenyatta will be sworn in as President for his second term.

An unprecedented experience of two presidential elections has left the country divided in a way never seen before.

While one half of the country is celebrating, citizens in the other half are gnashing their teeth in anger.

After the Supreme Court annulled the first presidential election, held in August, the country went into a first-ever fresh presidential election last month, which was marred by a boycott by Raila Odinga, the candidate for the opposition Nasa, which also carried out a successful campaign to suppress voter turnout, especially in their strongholds.
COMPETITIVE POLITICS

The big question is what direction the country should move in, after Kenyatta is sworn in on Tuesday.

In other countries, the reality of competitive politics is that all parties will eventually spend time in the political cold.

If this logic was to be applied in Kenya, it would mean that Nasa, adjudged to have lost the 2017 election, should accept its place as the opposition party, allowing Jubilee to govern the country.

However, Nasa claims that an ingrained culture of electoral fraud prevents the opposition from ever winning an election.

There is a high likelihood that Jubilee will seek out Nasa for a negotiation after Kenyatta is sworn on Tuesday.

It is likely that Jubilee’s negotiating tactics will be to offer Nasa a share of the spoils.

Already, there have been noises in the political space to the effect that the Constitution needs to be amended to accommodate a more expansive Executive, as a way of increasing inclusion.

In resolving the 2007 crisis, the country followed two tracks.

The first was providing accommodation for the previously-warring political elites, in the form of a coalition government, and the second was a search for electoral justice through the Kriegler Commission.

EXPANDED GOVERNMENT

Once the expanded government was formed, the appetite to rock the boat disappeared and, with it, the space to pursue electoral justice.

Also, the first track ultimately proved an unhappy one. In theory, as Prime Minister, Odinga was an equal principal with Kibaki in the coalition government.

In practice, however, the bureaucracy remained loyal to Kibaki and staged passive resistance against Odinga. After a credible claim that he had won the 2007 election, Odinga’s stay in the coalition was an act of daily humiliation.

If Jubilee’s hope is to offer Nasa some spoils, Nasa’s reaction will significantly be conditioned by the experiences of 2007. On the evidence, such an offer will not be very attractive.
Nasa will, however, have to think through opposing considerations including the readiness to nurse the opposition through another five years in the political wilderness.

In 2007, a younger opposition leadership played a waiting game and was, therefore, amenable to power-sharing proposals which were in effect an opportunity to re-arm for 2013. Also, current opposition unity is predicated on arrangements that promise to transmit leadership among the principal actors, in successive elections.

A power-sharing deal would scupper this arrangement or postpone it to a time that is too distant to be practical.

Questions of legacy also come into play. In the eyes of his supporters, if there was justice, Odinga would have been president already because of his larger-than-life political career.

INJUSTICE

The presidency, the one thing that would be worth negotiating for, is, at the same time, the only thing that Jubilee cannot give up.

In the view of this category of supporters, there is nothing to negotiate with Jubilee about. A deep injustice is felt among Nasa supporters, which the range of negotiable possibilities cannot address.
Nasa might want to add another five years to its stay in the opposition if it believes that doing so can be rewarded with a victory in 2022.

There would have to be an assumption that the 2022 elections will be run differently from all the recent elections that have been the subject of complaints by the opposition.

However, the essence of the current crisis is the complaint that, because of fraud, only the ruling party can ever be declared the winner of an election.

It follows that the only logical demands by Nasa are that Jubilee agrees to an immediate new election to be run differently from the recent election, or provides guarantees that future elections will be run differently from the recent election.

Questions of good faith are also at play and will affect the readiness to negotiate, as well as the quality of the negotiations.

Kenyatta is following the script that his predecessor, Mwai Kibaki, employed in the disputed 2007 presidential election.

As the country burnt following the announcement of the disputed results in that election, Kibaki bravely swore himself into a second term and then formed a limited cabinet.

LEGITIMACY CRISIS

After that, he agreed to negotiate with Odinga, his main challenger. Through these unilateral acts, Kibaki, who had suffered a serious legitimacy crisis in the election, significantly strengthened his own position, presenting Odinga with a fait accompli when he turned up to negotiate.

Similar brinksmanship has been evident in moving a discordant country into the poorly-organised fresh presidential election, whose inevitability increased, even as its quality decreased.

As part of this, when it emerged that a case in the Supreme Court might threaten the fresh election, a sitting of the court inexplicably failed to materialise, and by default the election went ahead.

At the same time, however, the great determination to proceed with the election offered an attractive target of resistance in the parts of the country that did not want the election to take place, turning it into a referendum on whom between Kenyatta and Odinga, the country listened to.

The manner in which Kibaki treated Odinga and which Kenyatta is now following, feeds a grievance of political domination that the part of the country feels.

Odinga is seen as both a victim of that domination and also the champion against it.

After electrifying campaigns, and disputed election results, the country enters an uncertain territory.

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