Kenya is in a classic Mexican standoff, defined as a confrontation between two or more parties in which none can win. Though it is not known why the other co-principals did not turn up for the ‘swearing-in’ — tactics or fallout?
Mr Raila Odinga had to be sworn in to keep his base united.
For his part, Mr Uhuru Kenyatta cannot yield to Mr Odinga’s demands for a fresh, free and credible presidential election without a ruinous collapse of his authority.
Mr Odinga’s problem is that his base is now more militant and intransigent than he himself ever was.
His second problem is that neither of the other principals has quite the same problem.
Jubilee’s problem is that Mr Kenyatta and Mr William Ruto’s interests are now strategically misaligned: Mr Kenyatta wants a legacy, Mr Ruto wants the presidency in 2022. Mr Kenyatta can secure his legacy by talking to Mr Odinga.
Mr Ruto fears that any talks between the two will dissipate his momentum for 2022 and cost him the presidency.
Unfortunately, the things that Mr Kenyatta can offer Mr Odinga in any future talks — a share in government and cabinet positions — won’t satisfy Mr Odinga or many of his supporters.
So that though they may feel political pressure to talk, Mr Kenyatta and Mr Odinga do not have any credible bargains that would satisfy their allies or their supporters.
Not only are the key protagonists psychologically paralysed, their positions, as stated, cannot be reconciled.
Mr Kenyatta’s legal advisers say the National Super Alliance is committing treason, a capital offence.
Assuming that Nasa principals have not fallen out, further escalation can only help their battle of nerves with the government. Mr Kenyatta’s choice is stark: arrest Mr Odinga and Mr Musyoka for treason or impotently ignore them.
If he arrests them, he will stoke a costly intifada-like uprising if not in Nairobi, then at least in many of Mr Odinga’s strongholds.
If he dismisses the swearing-in and lets Nasa off, they will sense weakness and will press for more.
Mr Kenyatta’s instincts, if the past is a guide, will be to repress and claw back freedoms.
TV STATIONS SHUT OFF
His first action Tuesday was to shut down free-to-air television — NTV and Citizen — a misguided and unconstitutional over-reaction that he must sustain or abandon before the court orders him to. Mr Kenyatta has, in short, walked down the very path of escalation that Mr Odinga wants him on.
Mr Kenyatta does not need this. He cannot salvage a legacy if the economy doesn’t grow to deliver on his ‘big four’ agenda.
That won’t happen if the country is wracked by frequent violence and economic shut-downs. Protests will undermine revenues — which are weak to start with. Kenya cannot service the expensive debt that the government has racked up since 2013 with violence in the streets.
The trouble is that Mr Kenyatta left matters too late.
He had the opportunity to reach out to Nasa when the Supreme Court outlawed the August 8 election last year. His advisers argued that he could only negotiate from strength if he first secured the presidency however anaemic its legitimacy.
They assumed, foolishly, that the stamp of legality would answer the legitimacy crisis that his detractors were harping on.
For its part, Nasa has — short of secession — unleashed its most potent weapon.
The tactical question is whether the principals can survive the corrosive effects that such deep conflicts of legitimacy often carry.
The lessons out there — especially from Cote d’Ivoire and Gambia — are not encouraging. In 2010, the Electoral Commission declared that former prime minister Alassane Dramane Ouattara had won the presidential election in Cote d’Ivoire. The Constitutional Council — a lickspittle of then incumbent president Laurent Gbagbo — declared for Gbagbo, provoking a deadlock in which each swore himself in as president.
Five months of conflict and violence followed, threatening to tip over the country back to civil war. Ouattara finally triumphed on the back of muscular support from Ecowas — the 13-member states’ body for West Africa.
A similar standoff was replayed in the Gambia in 2016: long-serving president, Yaya Jammeh lost to opposition leader Adama Barrow.
He prevaricated: first conceding and then retracting the concession. Barrow fled to neighbouring Senegal and had himself sworn in as president in the Gambian embassy in Dakar.
Once again, Ecowas acted, threatening military action and forcing Jammeh to flee the Gambia to bring in Barrow.
Though Nasa may have successfully sworn in Mr Odinga, it is unlikely to pull off the diplomatic coups and pledges of support that both the Cote d’Ivoire and Gambia opposition were able to.
The East African Community has never had real spine about political affairs in neighbouring countries.
Moreover, the region is in such a dizzying downward spiral from democracy, it is hard to see that any member state has the moral standing to say anything that would persuade anyone.
Africa’s recent history shows that the African Union and the UN often wait for regional bodies to take the first action in a crisis before they act.
But this analysis assumes that Nasa will stick together, the absence of Kalonzo Musyoka, Moses Wetang’ula and Musalia Mudavadi at the swearing-in notwithstanding.
If their absence is tactical, that is to say, that it is a decision consciously taken to fragment the troops so as to confuse the adversary, then the only thing that has been really lost is some political drama. If they stayed away because of disagreement provoked by Mr Kenyatta’s hard-ball tactics, then Raila will be left dangerously exposed and little will be left to salvage his political career outside of Luo Nyanza.
It is not the denouement to a long political career he would have wanted.
GOVERNMENT IN EXILE
Mr Odinga’s other choice — one that he has hinted at himself — is to set up a government in exile. That too seems unpromising. Governments in exile are notoriously dependent on — and vulnerable to — international recognition.
There are many examples — from Biafra to Georgia to the breakaway sub-regions of Russia — Nagorno-Karabakh and South Ossetia — that show how frail such governments tend to be.
It seems, then, that Mr Odinga’s real power vis-a-vis Mr Kenyatta won’t come from either diplomatic recognition or ability to operate from a safe haven abroad.
It will, instead, be determined by whether he can keep his base together and enthusiastic. If he does, he will make it impossible for Jubilee to govern, which will gut Mr Kenyatta’s legacy.
But Mr Kenyatta is also guilty of poor political play. His advisers assumed, naively, that Nasa would run out of steam or that the principals would fall out so acrimoniously that this point would never be reached.
In this, they failed to see that in fact, events have dealt Mr Odinga the better hand. The picture of Mr Odinga as the perennial electoral rebel without a cause was dealt a major blow when the Supreme Court invalidated the election.
Nasa did not fragment after Mr Odinga boycotted the re-run. Instead, the party returned to its base and remobilised. Throughout those efforts, the principals surprised many by holding together.
In fact, internal party quarrels in the opposition have been the most muted we have seen in the multiparty era. The reason, it seems to me, lies in the fact that the principals have lost control of their bases. They cannot abandon the cause and remain relevant in their backyards.
This, then, is a dangerously destabilising stand-off. Can a deadly confrontation now be avoided?
Game theory assumes that in a Mexican standoff, the parties die because they cannot see beyond self-interest.
Yet, it is possible, though difficult, to walk away from the deadly situation when parties see that the stand-off harms all equally and that walking away is in the interest of all. Our tragedy is that Kenyan politics does not work that way.
Wachira Maina is a constitutional lawyer.