Kenya: At a Political Crossroads

Kenyans are set to go to the polls for general elections in March 2013, and will once again have the opportunity to cast their votes and elect new leaders. History has shown, however, that political contestation has not always been smooth sailing, and many past elections have been marred by irregularities. Most notably, the 2007 elections led to a national dispute over the outcome of the presidential race, and ultimately the outbreak of widespread violence. Electoral irregularities and resultant conflict are not inevitable – in 2002, the Kenya African National Union party suffered a landslide defeat after forty years of near autocratic rule – but when these do occur they reverberate through the East African region and across the continent as a whole. Anticipation, and the sensitivity around successful elections is therefore of great concern to more than just the Kenyan people.

Kenya’s fate as a country in transition was sealed by the tragic post-election violence that occurred in December 2007 and January 2008. A number of institutions have since been established to deal not only with this recent conflict, but also with a longer legacy of injustice since independence in 1963. Some of these institutions have already concluded their work, including the Commission for the Investigation of Post Election Violence and the Independent Review Commission, which recommended far-reaching changes in electoral processes and the disbandment of the Electoral Commission of Kenya in the aftermath of the events of 2007.

The work of the Truth, Justice and Reconciliation Commission (TJRC) will soon draw to a close after its mandate was extended following resolution of a dispute among commissioners concerning the appointment of a Chair – one which unfortunately planned the better part of the life of the commission overall. Despite resultant challenges to its credibility, as well as budgetary constraints, the commission will release a long-awaited and important report providing a narrative on sensitive and historic issues in Kenya’s past. It is hoped that this process will lead to a collective and consensus-based truth that a majority of Kenyans are able to agree upon.

The belief, however, that the TJRC’s report may lead to the possibility of re-opening national wounds or exacerbating political tensions, particularly by candidates in the run-up to elections, has prompted some calls for the document to be embargoed until polling has concluded next year. It is plausible that its content, which will shed light on events spanning the post-independence period, may be used to sow more divisions in an already fragmented country. It will be a true test of the functioning of the National Cohesion and Integration Commission (NCIC), also formed after the violence and unrest of 2007, to chart the direction for a more unified country.

The NCIC may further be pushed to prosecute leaders and candidates for hate speech in cases in which this could lead to divisive or tribal politics or ‘ethnicism’ as it is mandated to do through the National Cohesion and Integration Act that legislated its formation. A range of other outstanding issues must also be addressed before Kenya can hold elections. The new constitution promulgated in August 2010, a further outcome of the 2008 political settlement, created numerous new elective posts that need to be enacted in law and implemented in practice. Parliament has had the unenviable task of numerous, long and intensive sittings to debate, amend and pass legislation consistent with the new constitutional framework. This has not been an easy task, as many of the new laws and policies under consideration involve the very issues that threaten to tear Kenyans apart – including access to land, equitable distribution of resources and devolved governance structures.

The International Criminal Court’s (ICC) interventions in Kenya are also bound to affect the country’s future. Two of the four Kenyans charged with responsibility for the post-election violence are presidential aspirants and come from ethnic groups that have dominated this highest office – Uhuru Kenyatta, deputy prime minister and son of Kenya’s first president, and a former Cabinet minister, William Ruto. These external interventions have become increasingly politicised in the lead-up to the trials of the accused, and leaders of some ethnic groups have denounced the ICC investigations as attacks on their own communities, and attempts to eliminate specific candidates from the run for the presidency. These seeds of discontent, if not carefully managed, could erupt into violence.

Meanwhile, the resettlement of those internally displaced by the post-election violence continues with varied success. Government’s efforts in this area must be acknowledged, although much more work and support for victims is needed. In this regard, beyond the ICC interventions, perpetrators of these crimes have not yet been brought to account in most cases. Where some prosecutions have been initiated, criminal cases have often been thrown out of court, sometimes as a result of the poor quality of investigations. Concerted efforts must be made to remedy this situation.

Yet while the past five years have marked a difficult transitional phase for Kenya, tentative gains have certainly been made in growing political stability and democracy, working towards greater respect for the rule of law, and opening up a national dialogue about the country’s past and future. Successful and peaceful elections in 2013 may solidify these ideals and serve as a benchmark for a successful transition in Kenya.

This piece first appeared in South Africa Reconciliation Barometer Newsletter Volume 10, 2012 also available at http://reconciliationbarometer.org/newsletter/volume-ten-2012/

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