Another difficult week for Kenya begins, with a contested swearing-in of opposition leader Raila Odinga expected to take place on the same day as the 53rd commemoration of the country’s attainment of republican status.
Attorney-General Githu Muigai has already declared that swearing-in Odinga as president would be tantamount to treason.
For their part, the police have announced a ban on opposition activities on that day.
In these circumstances, it is easy to predict what is likely to happen. If the opposition invites its supporters to the swearing-in fete, there will almost certainly be violence, with the possibility of injury and death.
Foreign powers have weighed in on the unfolding situation, with the US advising against the swearing-in, and recommending that the opposition and Jubilee should hold dialogue.
The US disapproval of opposition plans may have an impact on policing tactics and instructions on the day. Throughout the election period, excessive force by police on crowds has been evident.
With the clear support of the US government, police are likely to go overboard in stopping the planned ceremony. Whatever the intentions, the US has taken an unhelpful position on Kenya’s domestic affairs, one that will compromise its claim as a disinterested arbiter.
Something needs to be said about the decision to swear in Odinga as president, and its legal consequences.
The attorney-general considers this a high crime. This characterisation probably borrows from what happened in Uganda, where opposition leader Kiiza Besigye faces treason charges after taking an oath as president in relation to the February 2016 elections, where President Yoweri Museveni was declared winner.
Though Besigye was sworn in as president, there has been no practical change in his status. Also, Museveni’s position as President has not been threatened by Besigye’s action. At a practical level, therefore, no changes to Uganda’s political circumstances have occurred as a result of what Besigye did.
Why, then, did Besigye get himself sworn in as president? It was simply a gesture of protest, a statement that, in different circumstances, a person other than Museveni would have been declared president of Uganda.
In the same way, what the opposition plans in the coming week can be seen as a gesture of defiance against the official results of the 2017 elections.
The plans fall in the realm of expression and association, both of which are protected by the Constitution. As long as it is peaceful, the categories of expression are limited only by human imagination.
Ultimately, of course, the opposition hopes that swearing-in Odinga as the “people’s president” will increase his political leverage in the contested leadership of the country, particularly in a situation where Uhuru Kenyatta, after overriding objections about the quality of the election, has already been sworn in as President for a second term.
Predictably, Kenyatta now hopes negotiations with the opposition will help to overcome the contest over his leadership and allow him to govern.
However, unlike in 2007 when there was a negotiation between Kenyatta’s predecessor Mwai Kibaki and Odinga, the circumstances now are different and give the opposition no incentive to talk.
To begin with, the cumulative failures in elections since 2007 justify a conclusion that, other than for a chosen few, the path to the highest public office in Kenya is blocked.
For now, and in the foreseeable future, a person has to be in Jubilee to be president, and no amount of political effort seems sufficient to change this fact.
If this is the case, there is no benefit in maintaining an opposition since such an outfit has no chances of accessing political power.
Talks that do not include discussing free and fair elections would not interest the opposition since, five years on, they will find themselves in the cold again.
Secondly, while Jubilee might need to negotiate, the opposition has no reason to do so.
Kenyatta is in a stronger position than Kibaki was in 2007 when he entered into negotiations with Odinga, culminating in the grand coalition government.
In the relevant elections, Kibaki had lost much of the country’s support and held fewer seats in Parliament than the opposition.
Still, having sworn himself in as president, Kibaki entered these negotiations from a position of strength. Jubilee controls the majority in both Houses of Parliament and also has the majority of governors.
Kibaki was forced to negotiate because he could not otherwise govern. With some difficulty, Jubilee can govern without the support of the opposition. If the only purpose of a negotiation is to ease Jubilee’s second term in office, while leaving unaddressed all the grievances that have accompanied these elections, there is no natural reason for the opposition to be part of such a negotiation.
Thirdly, because of their varying electoral strengths, a negotiation with the opposition would bring together two parties with significant asymmetry in power relations and, in these circumstances, the opposition would have little leverage in the negotiation.
The irony is that the opposition is being told that the very actions that might give it a modicum of leverage in its relationship with Jubilee are now prohibited.
In effect, the US is presenting another “accept and move on” situation to the country.
Inherent in the ongoing crisis is an opportunity to address the deeply held grievances that are tearing the country apart.
To make that possible, there is a need to reflect on three considerations. First, the opposition has no incentive to negotiate with Jubilee. Such an incentive must form a condition precedent to a negotiation with Jubilee.
Second, assurances must be given that despite the power asymmetry, conditions of equality in any negotiation will be created.
Thirdly, there is a need to recognise that the purpose of any negotiation is not to share power but to clarify and open the path to power, which a section of the country considers as clogged.