africa policy brief no 1 january 2008

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Breaking Kenyas ImpasseChaos or Courts?Africa Policy Brief

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Breaking Kenyas Impasse: Chaos or Courts?

Introduction

The declaration of President Mwai Kibaki as the victor in Kenyas closely contested 27 December 2007election sparked an orgy of tribal-based violence which has threatened to rip Kenya apart and shattered

its image as an icon of peace and stability in a fragile continent. The brutal resurgence of ethnicity inthe calamitous election resulted in Kenyas worst civil unrest since the 1 August 1982 abortive coup detatby the Air Force. It has left some 700 people dead, some 300,000 others displaced and nearly Ksh60billion [US$850 million] lost. More subtly, it has witnessed the most deadly assault on the vision of civiccitizenship that has so far driven Kenyas 44-year old post-colonial nation-building project.

Mediators from South Africas Desmond Tutu to Ghanas John Kufor and former UN Secretary General,Kofi Annan, are trying their hands in breaking the impasse in Kenya. But efforts to pull Kenya back fromthe brink must go beyond the skin-deep tenets of liberal peace that seeks to merely broker dealsbetween warring factions and fractions of the political elite. Kenya must now go back to the drawingboard, boldly resuscitate the multi-ethnic vision based on the principles of civic citizenship, sanctity ofpublic order and supremacy of the courts as the only arbiter in all disputes.

Courts or Streets?

The immediate cause of Kenyas impasse is the disputed presidential results of the 2007 elections.Kalonzo Musyoka of the Orange Democratic Movement-Kenya (ODM-Kenya) endorsed the verdict of theElectoral Commission that put Kibaki ahead with 4.58 million votes against 4.35 million of Raila Odinga ofthe Orange Democratic Movement (ODM) and Musyokas 880,000 votes. However, Kenya teetered onthe brink of civil war as Raila and the ODM objected to the results, accusing the government of fraud,and rejected the court option to resolve the dispute.

When announcing the results, the beleaguered Chairman of Kenyas Electoral Commission, SamuelKivuitu, advised that the ODMs objections were a matter for the courts. Raila, however, rebuffed the

idea of seeking redress in the courts, demanding Kibakis resignation and calling for a million-strongcampaign of civil unrest to overturn the results in a civilian coup ala Ukraine and Philippines where civilaction swept official losers to power.

The ODMs rejection of the court option opened Kenya to what Robert Cooper and others have rightlydescribed as pre-modern chaos experienced in many parts of Africa like Somalia, Sierra Leone andLiberia, and seen in the breakdown of the state in parts of the former Yugoslavia. For a countrydescribed by the report of the Africa Peer Review Mechanism in 2005 as having developed a relativelyappreciable degree of institutionalization, the oppositions refusal to take the court path and theconsequent threat of riots and chaos came through as the proverbial return of barbarism to haunt

Africas nascent civic nation and culture.

Rome was burning! Frustrated ODM supporters went on a rampage, burning shops and shacks inNairobi, Kisumu, and Mombasa and re-settlement schemes in the Rift Valley belonging mainly to Kibakisethnic Kikuyus as well as the Gusii and Kamba. Election manipulations are as old as the hills even inmature democracies. Kenya is no exception. Its 2007 election was, indubitably, flawed at all its stagesand on multiple fronts by various actors through widespread ballot stuffing, voter bribery and extensiveuse of tribal militias to disrupt voting and disenfranchise hostile voters.

As the tussle between George Bush and Al-Gore during Americas controversial 2000 election shows,closely contested elections like Kenyas risk de-generating into political dispute. Recourse to courts as thesupreme arbiter in election-related disputes as well as the readiness by protagonists to abide by courtruling, however sleazy, guaranteed the continued stability of Americas democratic institutions in theaftermath of a highly divisive election.

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In its 44 years of independence, Kenya has made giant strides in setting up a functional modernbureaucracy, including a court system. However, whatever reasons the opposition gave in snubbing thecourts this decision marked a tragic move backward from the process of institutionalizing a civic cultureof politics. Accelerating this move away from the path to modernization of Kenyas political culture is the

brutal resurgence of the parochial and localized forces of ethnicity, with tribal-based chaos and disordermaking serious depredations on democracy. For all its goodwill, the push for peace talks between thegovernment and Railas ODM is systematically reinforcing this assault on Kenyas nascent institutionsand democratic culture.

Ethnic Assault on the Civic Nation

As the wave of democratization washed over Kenya from the 1990s, the countrys 42 tribes appeared inthe battlefront armour-plated to wage claims for power in the arena of civic nation on the basis of theirtribal identitiesKikuyu, Luo, Kalenjin, Maasai or Luhya. The ensuing ethnic assault on civic citizenshipreached its peak during the 2007 election. The palpable tension between ethnic citizenship and civiccitizenship became vivid from the self-fulfilling prophesy by Kenyas former strongman, Daniel Moi, that

the countrys return to multiparty democracy would trigger cataclysmic tribal violence that would destroythe nation. Bouts of tribal-based violence marred the 1992, 1997 and, to a lesser extent, the 2002elections. But none was deadlier than the 2007 violence.

The road to Kenyas 2007 election was a deadly minefield of ethnic fighting in many parts of Kenya,including Kerusoi and Mt Elgon in the Rift Valley and Western provinces, respectively. Hyped idiom ofwar during campaigns heightened tension to a perilous pitch. We shall attack the enemy from everydirection, Raila quoted Winston Churchills war-time speech, We shall launch a simultaneous attackfrom the land, the air and sea, until we secure victory.

The threat of violence became explicit during the ODMs final rally in Nairobi on 24 December when theparty leadership threatened to stage a Ukrainian-style civil unrest if the government rigged. On 30

December, violence flared up in Nairobis Kawangware, Kibera and Mathare slums, Kisumu, Mombasaand parts of the Rift Valley when the Electoral Commission declared Kibaki the winner and his swearing-in as president. This violence, mainly perpetrated by Luos and sections of the Kalenjins, was primarilydirected against Kibakis Kikuyu group as well as the Gusii and Kamba accused of voting for the rulingParty of National Unity (PNU). To a lesser degree, some retaliatory violence against the Luo wasreported and pitched battles with the Kalenjins took place in parts of Eldoret.

The worst case was the burning of up to 50 Kikuyu women and children sheltering in a Church inEldoret. This event prompted the Attorney General, Amos Wako, to remind perpetrators that they couldface international law regarding crime against humanity as government officials accused the ODM of

genocide against the Kikuyu. In response, the ODM alleged genocide against its own supporters bythe police allegedly with orders to shoot to kill.

Nairobi became a battle ground between the police armed with rungus (batons), tear gas and watercannons and rioting mobs as Odinga and his supporters pushed for a planned million-strong rally inNairobis Uhuru Park on 3 January, despite a government ban. The police successfully contained theriots, and ODMs bigwigs called off the rally. But Mudavadi promised daily attempts until the successfulholding of the rally to install Raila as a parallel presidenta move likely to plunge the country into aprofound political crisis. The government acknowledged that the country was sliding to the cliff-edge,with Kibaki describing the violence as senseless while his Attorney General, Amos Wako, described thesituation as quickly degenerating into a catastrophe of unimaginable proportions. At the centre ofKenyas crisis is the emergence of ethnic warlords, locally known as tribal mafias.

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Tribal Mafia Wars

From 2002, Kenya entered it night of the long knives as ethnic mafias battled out for the control ofthe state. Paradoxically, the clash of tribal mafias gained momentum after the historic December

2002 election that swept President Kibaki and the National Rainbow Coalition (NARC) to victory overMois handpicked success--Uhuru Kenyatta, the son of Kenyas first president, Jomo Kenyatta. Assoon as Kibaki came to power, cracks and rivalry within NARCs ethnic coalition of the Kamba, Kikuyu,Luo and Luhya re-surfaced.

At the center of the ensuing ethnic power wrangle was Raila Odinga who accused what he dubbed the Mt Kenya mafias of reneging on an MOU that promised him the non-existent position of executivePrime Minister. The NARC coalition came to an acrimonious end when Raila teamed up with Kalonzo(Kamba), William Ruto and Daniel Moi (Kalenjin) and Uhuru Kenyatta (Kikuyu) to defeat a referendumon a government-supported constitution in November 2005. Kibaki axed Odinga and other pro-OrangeMinisters. But out of this victory gave birth to the Orange Democratic Movement solidly based on ananti-Kikuyu platform which crystallized into the one-against 41 tribes campaign slogan.

Ahead of the 2007 elections, ODM split right through the middle with Kalonzo forming his own ODM-Kand Uhuru joining Kibaki in PNU, which also enjoyed Mois strong backing. Kibaki continued tocommand support across the country largely because of his economic performance, free primaryeducation and improvement in social services. But his campaign spin-doctors took off from the naveposition that Kenya is not ready for a Luo president.

Raila moved to counter his assumed inelectability by craftily pulling together a multi-ethnic coalitionknown as the Pentagon consisting of himself (Luo), William Ruto (Kalenjin), Mudavadi (Luhya), NajibBalala (Coastal arab/Muslim), Charity Ngilu (Kamba) and Nyaga (Mt. Kenya/Mbeere). AlthoughKibakis PNU transformed itself into a multi-ethnic umbrella party consisting of many parties, it was nomatch for the Pentagon as a publicity stunt. As the public face of the ODM campaign, the Pentagon

was calibrated to de-center politics by appealing to the multiple identities of ethnicity, gender,generation, nationalism, race, religion and regionalism.

Despite this, Pentagon was hoisted on a solid anti-kikuyu plank signified by its one-against-41campaign strategy aimed to replicate the victory of the November 2005 referendum. The motordriving the Pentagons anti-kikuyu alliance was the so-called the Rift Valley or Kalenjin mafiasconsisting mainly of wealthy Nandi, Kipsigis and some Maasai elite who called the shots in the Moiregime.

Moi may have eventually backed a Kikuyu (Uhuru) as his anointed successor, but this was too little toolate. The enduring legacy of his 24-year rule was an obsessive anti-kikuyu sentiment that came topervade Kenyas ethnic fabric. In the aftermath of Kenyas first multi-party election in 1992, Moi luredRailas father, Jaramogi Oginga Odinga, into an informal, albeit contentious, pact to counter theKikuyu maverick, Kenneth Matiba, as the new opposition chief.

The political imperative to neutralize another Kikuyu, Mwai Kibaki, as leader of the oppositionfollowing the disputed 1997 election compelled Moi to crystallize the Luo-Kalejin dtente, enchantedby the historian, Bethwell Ogot, as the Jie Speakers.

On 18 March 2002, Moi took a further step and merged the Luo-dominated National DevelopmentParty (NDP) of Raila with his own KANU to form the short-lived New KANU, with Raila as Secretary-General and cabinet minister. However, Mois decision to anoint a KikuyuUhuruas heir to hismantle enraged Raila who left the New KANU for Kibakis NARC, which pushed the Kalenjin mafiasout of power in 2002.

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The dismissal of Raila and Ruto from Kibakis cabinet in 2005 gave a new lease of life to the Luo-Kelenjinalliance cemented by a shared ambition to re-capture the state and a fervent dislike of the Mt Kenyamafias for keeping them out of power.

In the run-up to the 2007 election, the kid gloves came off, and the Kalenjin mafias pledged to use theboys to teach the Kikuyus a lesson they will never forget. One of the boys earmarked by the Rift valleyelite was William Ruto who broke his political teeth as an activist in Mois notorious vote-buying outfit,

Youth-for KANU 1992 (YK-92). The other boy was Raila, whom the former Moi stalwarts like the ODMchairman, Henry Kosgey, and former powerful Secretary to the Cabinet Sally Kosgei believed would pavetheir way back to power if he won, while his bravery as an opposition leader would be enoughprotection against the Kikuyus if he lost the presidential bid.

This clash of ethnic mafias turned the Rift Valleyonce enchanted by the British colonial supremacistsas the White Highlands--into a veritable battle-ground during the election and a theatre of the worsttribal carnage after the election. The situation become even more deadly with the entry of a dangerousstrand of Americas rightwing thinking on how to win a narrowly contested election.

Enter Dick Morris

A stridently negative campaign that became the hallmark of the 2007 election opened new fault-lines inKenyas volatile ethnic relations. This marked a dangerous shift from the post-colonial politics of nation-building which privileged bridging identity gaps within and between Kenyas 42 tribes to a new kind ofpolitics that brazenly exploited such wedge issues as class, ethnicity, generational gap and religion(Muslims-versus-Christians) to win the hearts and minds of voters. This unabashed divide-and-wincampaign strategy took a new turn following the frightful debut into Kenyan elections by the Americanpolitical strategist, Dick Morris, described by a famous BBC documentary as America's most ruthlesspolitical consultant.

On 13 November 2007, Morris announced that he would be offering his pro bono services for thecampaign to elect the Orange Democratic Party (ODM) presidential hopeful, Raila Odinga. The arrival ofDick Morris into Kenyan politics introduced his signature political strategy of combining a gamut ofnegative campaign themes, wedge issues and opinion surveys to help his clients either win or take overpower through civic action in case of disputed results in narrowly contest elections.

He had already tried out this strategy in Mexico, Ukraine and with the right-wing UK Independence Party(UKIP) with success. In Mexico, Morris outlined a strategy of negative campaign that utilized gender gapand vilified the leftist candidate, Lopez Obrador, as an ultra-leftist ally of Chavez and Castro to help thecentrist Felipe Calderon clinch a narrow win in the 2004 election. As a consultant to the Victor

Yushchenko Presidential campaign (2004-2005), Morris insisted on exit polls as a means of potentiallyexposing ballot tampering, which he claims played a significant role in forcing the government ofPresident Leonid Kuchma to acquiescence to a new election when official results varied materially fromthe exit survey. Yushchenko went on to carry out a successful civil coup in Ukraine.

Despite the visible obsession among Kenyans with things American, the ODM advertisement of Morris asa former advisor to Bill and Hillary Clinton and an architect of the US-backed Ukraine's Orange Revolutiondid not endear him to the Kenyan public. Four weeks to the National Elections, the editorial of one ofthe leading Dailies (The Standard) called into question the legalities of his consulting work from theperspective of his presence, and lack of legal ability to work, in Kenya "pro bono" or "through the backdoor".

Morris hastily left the country. However, the finger marks of his political strategy were all over the ODMscampaign plan. One of the central planks of Morris Kenyan script, outlined in the ODMs strategic plan forthe campaign rolled out on 8 September 2007, was an intense negative campaign of running down

Kibakis family and depicting his government as irredeemably corrupt and ethnic.

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Yet, the ODM was itself a den of Kenyas chronically corrupt elite, all of whom had been indicted by thefamous Ndungu Report as perpetrators of the most egregious cases of mega-corruption and land-grabbing. More importantly was the exploitation of fault-line issues, mainly anti-Kikuyu crusade, tobrand Kibaki as a Kikuyu chauvinist in order to alienate his national support and exploit anti-Kikuyu

sentiments to win the vote of other communities in multi-ethnic provinces.

Closely linked to the anti-Kikuyu crusade was the clamour for Majimboism (ethnic federalism) as adivide-and-win ploy targeting the Kalenjins in the Rift Valley and disaffected Arab-Swahili population atthe coast, but marketed as an instrument of devolution of power and resources to the grassroots.Majimboism fatally assaulted civic citizenship, polarizing Kenyas ethnic groups along the exclusivistbinaries of native-settler, citizen-alien and indigenous-migrant. Its advocates cynically played on thelegitimate and shared grievances arising from obvious inequalities, corruption, discrimination andexclusion within, between and across the country to stoke the embers of tribal hostilities, especially inre-settlement areas in the Rift Valley and western Kenya.

This partly contributed to the eruption of violence in Kerusoi and Mt Elgon in the Rift Valley and

Western, respectively. Whether by design or by coincidence, the violence effectively displaced Kikuyusand Gusiis, with displacement serving as a devise of killing hostile vote. It also set the stage for thepost-election violence. Conversely, the anti-kikuyu fever aided the Mt Kenya elite to successfullymobilize the Kikuyu, Meru, Embu and Mbeere behind Mwai Kibaki. For the first time since Kenyas returnto multi-party politics, the Mt. Kenya people united, bridging the proverbial Chania River divide.

Another key wedge issue was the age-gap. Although the Kibaki administration had reduced povertyfrom 58 to 46 percent, unemployed and poverty-stricken youth characteristic of developing countriesmade the concept of change that underlined the ODM campaign particularly attractive to Kenyasyoung people. In Central province, the age-gap caught up for a while, especially in the aftermath of thebloody confrontation between the Mungiki and security forces in parts of the country. .

However, ethnic solidarity soon trumped the generational identity, and the vast bulk of Mt Kenya youth

elected Kibaki as president. Despite this, the theme of generational change of guard became manifest inparliamentary elections where the old-guards lost to youthful politicians. Outside Central province, theyouth stratum provided fodder to the campaigns of politicians as militias or goons used in creatingmayhem in polling stations. In the post-election impasse, youth have served not as vanguards but asvandals responsible for burning and killing.

The Christian-Muslim divide in Kenya was also squeezed for any vote it could guarantee in thepredominantly Muslim North Eastern and Coast provinces. In this regard, the ODM flag-bearer, Odinga,signed the controversial Memorandum of Understanding (MOU) with a militant Islamic political groupingto protect Muslims from harassment and abuses linked to the US-led global war on terrorism. The MOUdrew the ire of Kenyas Christian community. But in Nyanza and the Rift Valley ethnicity, again, trumpedreligion as many Luos and Kalenjin voted Raila as president. After the elections, political Islam has

become a vehicle of mobilizing violent protests particularly in Mombasa, where over 5,000 mainly up-country (wabara) people were killed and 100,000 others displaced in politically-motivated violence in1997.

Opinion polls as an instrument of democracy made its debut in Kenya during the 2007 elections. But itemerged as the Frankensteins monster in Morris strategy that was to haunt post-election Kenya. As inUkraine, the results of opinion poll, some of which gave Raila a narrow lead, enabled the ODM to claimvictory, allege fraud and to prepare the way to reject unfavorable outcome and rationalize riots.

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The paper further alleges that fiddling had also taken place in Nairobi where Kibakis hardlinerssimply crossed out the number of votes as announced in the constituency and scribbled in highernumbers. The paper also alleges hat election monitors were turned away while tallying went on.

All that was needed were extra votes to squeak past Mr. Odinga in what had been amongthe most closely contested elections Africa had ever seen. That is why returns from CentralProvince, Mr Kibakis fiercely loyal heartland were inextricably held back. It is why, in someconstituencies, a large number of votes seemed mysteriously to vote only in presidentialrace and ignore the parliamentary ballot.

Who Stole the Election?

At the heart of Kenyas festering crisis is what is now dubbed as Kenyas stolen election. But whostole the Kenyan election? The Western worlds answer to this question is summed up by theEconomiststwilight robbery thesis: The decision to return Kenyas 76-year-old incumbent president,Mwai Kibaki, to office was not made by the Kenyan people but by a small group of hardline leadersfrom Kibakis Kikuyu tribeIt was a civil coup (05.01.2008: 34).

This, argues the Economist, was done through ballot stuffing. It continues:

One of the main sources of this rigging thesis was the European Union observer team whosepreliminary report said that the presidential poll had fallen short of international standards. Monitorsof the EU team even alleged having seen tens of thousands of votes pitched through crossing out thenumber of votes as announced in the constituencies. This deliberately one-sided perspective by theEU drew attention to the impartiality of international observers, and the almost nihilistic tendency tostoke rather than prevent fires arising from disputed elections in Africa.

The EU was initially reluctant to send observers, arguing that the resources for Africa were slim and

Kenya was too stable. As such, it entered the scene too late to grasp the intricate processes ofelectoral flaws that characterized Kenyas protractedly and heavily mined electoral field. Even beforeEU monitors parachuted into Kenya a few days before the polling day, opinion surveys that showedMr. Odinga with a razor-edge lead and images of a corrupt and crumbling Kikuyu kleptocracy hadalready swayed them to the opinion that nothing less than rigging would save the Kibaki presidency.

Further, western election observation orthodoxy is underpinned by the flawed thinking that onlygovernments can steal the votes from the innocent opposition underdogs.

Viewing events through this villain-victim prism, many international observers trained the sharpest oftheir cameras on the government zones in a forensic-like screening for all signs of election frauds. Inthe process, they utterly closed their eyes to the massive frauds by the ODM in its Nyanza home tuff,Rift Valley and Nairobi.

At least, the Economist was decent enough to acknowledge that Mr. Odingas supporters were notinnocent either, adding that: There were irregularities in his home province of Nyanza (p.34). But itnever went on to unearth the degree of these so-called irregularities. Rather, it chose to rub the pointhome that: Still, it was the meddling in Central Province that was decisive--a conclusion that electionfraud forensic experts will most certainly find disturbingly biased.


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Civil Coup?

What eluded many observers is that, from the outset, the very concept of rigging was the lynchpin ofa larger build-up to a post-election civilian coup. As one interviewee noted: Since September [2007],

the ODM chiefs have curiously alleged a rigging plot by the government, like an incantation, at leasttwice a day and in every public forum and media event.

Even before the term of the Electoral Commission Chairman, Samuel Kivuitu, expired in earlyDecember, the government acquiesced to the ODM pressure to re-appoint him following its claimsthat President Kibaki was appointing partisan Electoral Commissioners to aid his effort to sabotageboth the voting process and the results. The ODM then turned to the voters roll, alleging a conspiracyto alter voter registers and to do away with the black book in order to rig out ODM voters. Evenmore dramatic, it accused the government of plotting to print parallel ballot paper in Belgium, forcingthe ECK as well as Steve Ouzman Ltd, the British ballot printers, to come forward and clear the air.

The ubiquity of these rigging claims fostered a climate of distrust and gave rise to the not-so-far-

fetched view that this was a carefully calculated war cry. It was aimed at preparing the way for theODM to reject the election results if it lost. During their final campaign rally In Nairobis Nyayo stadiumon 24 December, the ODM overlords put the country on notice that they were not going to acceptanything less than a victory, alleging that the government had already rigged the election, and theycould not accept it.

Even more scary was the threat by Odingas running mate, Musalia Mudavadi, that ODM would pourinto the streets as in Ukraine where the official loser (Viktor Yushchenko) disputed the results,resorted to civic action and seized power (from Viktor Yanukovych) with international blessing. WasMudavadi consciously preparing ODM supporters for the partys plan to reject the election results, taketo the streets and grab power?

Thief in the N ightThe fact that Mr. Odinga opened an early lead in election returns in an ethnically polarized votebecame the cornerstone of the twilight robbery thesis that Kibaki could only have squeakedthrough, and fraudulently so. The PNU had raised its concerns to the European Union observers thatthe ODM planned to rig the elections by stuffing ballot boxes with marked ballots of Hon. Raila in LuoNyanza and other areas because there will not be any PNU agents and observers in place. Comingfrom the ruling party, this complaint appears to have been dimmed as of no merit.

The story of the meddling in Central Province has been told. What remains hidden in the dark is howthe ODM meddled massively in the voting in Nyanza and its Rift Valley strongholds hopefully to openan early lead, and eventually win the polls. Two subtle strategies were widely used to fraudulently

influence the outcomes of election in Luo Nyanza and the ODM zones in the Rift Valley.

The first was the systematic use of youth militias to foster a climate of insecurity and create artificialstampedes for two ends: scuttle rival voters and stuff ballot boxes. For instance, in Langata Nairobi,rival politicians charged that the ODM underwrote multiple gangs consisting of between 300-500-strong youth militias who provided safety to friendly polling stations and created stampede in centersconsidered as inhabited by rival groups to slow down the voting process and intimidate voters,particularly women. Not surprisingly, Langata had the lowest turn-out of less than 50 percent.Elsewhere, youth gangs created mayhem in unfriendly stations and inject pre-marked ballots intoboxes, leading to the suspension of voting in places like Kamukuji.

Insecurity served as a cover that was used to brazenly stuff boxes in Luo Nyanza and parts of the RiftValley. This became decisive in the ODM early lead in results.


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As table 1 shows, this resulted in some constituencies recording a voter-turn out in the presidentialballot that went way beyond a hundred per cent mark, and others recording over 100 per cent turn-out. Seven constituencies in Luo Nyanza recorded a voter turn-out that scandalously ranged between92 and 98 percent.

Over 90 Per cent presidential voter turn-out in ODM and P NU Areas

Turn-out in ODM Strongholds Turn-out in PNU Strongholds

Constituency Percentage Constituency Percentage

Rift Valley province Central province

Sigor 115% *Othaya 90%

Eldoret North 116%

Mosop 97%

Emgwen 103%

Baringo North 92%

Narok South 120%

Ainamoi 91%

Nyanza province

Bondo 102%

Kisumu Rural 102%

Karachuonyo 94%

Rangwe 92%

Ndhiwa 93%

Nyatike 95%

Mbita 95%

Source, Daily Nation (Nairobi) 31 December 2007; PNU submission to the Electoral Commission; Press Statement, 28 December2007. * ODM disputed 23 constituencies from Central and Upper Eastern, but all were below 83% voter turn out.

PNU pundits claimed that as a result of ballot stuffing in 14 constituencies in Luo Nyanza and the Rift

Valley, the opposition fraudulently gained no less than 900,000 presidential votes, enabling it to openan early lead. Despite this, the consistent claim that has torched the nation is that the presidentialresult was fiddled within the ECK, with active involvement of persons who favoured Kibakis re-electionan allegation made by ODM and taken up by some observers as a truism.

As the voting day dawned, the ODM was deeply worried that the plan to replicate the November 2005referendum was falling apart. On 23 December, the ODM pundits warned its strategic team that voterturn-out in Central and Eastern Province was likely to be many times higher than the pitiably low turn-out during the referendum. This expected voter avalanche, they warned, would decisively ensure aKibaki victory.

According to the partys media monitors, the expected high turn-out was because of FM stations

broadcasting in Kikuyu and Kimeru languages, which were drumming messages calling for a strongvoter turn-out. But it is also worth noting that ahead of the voting day, many businesspeople in theregion resolved to close up business on December 27 to allow workers to go to vote. Further, Kikuyuyouths launched operation firibi (operation whittle) to ensure that all registered voters in the provincecast their votes. Finally, on the voting day, an inked finger was a mandatory pass to access services,including transport, a beer in a local pub, a cup of tea in a kiosk or paraffin in a petrol station.

Although these measures resulted in unprecedented voter turn-out in the region, the figures remainedwithin a credible average of below 90 percent. This cast doubts on the veracity of the alleged massiveinflation of voting figures in Central province and Upper Eastern province.

The ODM strategy of countering this obstacle to its victory was quick and subtle. Its spin-doctorsadvised its agents in Central, Upper Eastern and Nairobi provinces to vigorously dispute every count

and demand a new full count before signing forms 16a and 16, which are passed on to the ECK inNairobi to announce results. Delaying votes from the Kikuyu areas was the ODM endgame: It wouldenable them to open an early lead while enabling the ODM chiefs to allege fiddling in particularly inCentral Province when Kibaki closed the gap. While diverting attention from meddling in Nyanza andODM Rift Valley, this strategy would refocus media spotlight on the Kikuyu-dominated areas as the realtheatre of rigging. And the strategy work, aided by a feloniously inept Electoral Commission.


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ECK: Compromised Broker?

From its formation in the 1990s, the Electoral Commission had developed a demonstrably reasonablecapacity to competently managed elections and to release of results on time. By December 27, it had

to its credit three multi-party elections, a referendum and numerous by-elections. What happened in2007? The commissions role particularly during the vote counting on 28-30 December has beencharacterized as doggy. Its snails pace and pattern of releasing results opened the ECKs competenceand preparedness to question at a particularly tense moment in the countrys history. This stokedsuspicions that the results were being cooked by returning officers to favour certain Presidentialcandidates.

Speaking later to the privately-run Kenya Television Network (KTN), Kivuitu disclosed that: "TheEuropean Union (EU) mission and Maina Kiai (Kenya National Commission on Human Rights) chairmanwanted me to postpone by a week so as I can investigate the allegations of irregularities". Kivuitufurther declared that: Kiai called me four times but the Party of National Unity (PNU) and the OrangeDemocratic Movement of Kenya (ODM) pressurized me to announce the results. At one point I

contemplated resigning but later thought that Kenya is bigger than me."

The visibly unprofessional way in which the Chairman of the Commission addressed some of theseanxieties did not help the situation. On 29 December, Kivuitu shook the nation with his announcementthat delays in the presidential elections were caused by the disappearance of senior poll officials whohad gone to "cook [results] for people who were paying them". As tension mounted, the ECKCommissioners were collectively and individually opened to pressure from both national andinternational interest groups.

On 29 December, Raila and some key ODM Pentagon members had their cover blown when they werefound holding a secret meeting at the Palacina Hotel in Nairobi with four ECK officials from WesternKenya as counting went on. The same four commissioners were later to allege that when confrontedby angry members of the public, the four officials were sneaked out of the hotel disguised in hoteluniform, but one was arrested by police with a tally recorder marked for Tigania East constituency andtaken to Kilimani police station.

Kivuitu may have been blamed for the post-election mess by declaring Kibaki as the president, pavingway for his swearing at State house the same day. For Kenyan observers, his admission that thepresidential election may have been tempered with simply confirmed what the PNU and ODM had toldthe commission, but it eroded its own credibility and that of the 2007 election. However, like a goodlawyer, he pointed to the direction that Kenya should take to resolve any dispute emanating from theelection: the courts. This is still the route that should be taken.


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Conclusion

Kenya is facing perhaps the most profound test of its stability and institutions as it moves into its fifthelection cycle. The 2007 election has ended in a dispute. The role of international mediators and well-

wishers ike Desmond Tutu, John Kufor and Kofi Annan who have played a pivotal role in trying to breakthe impasse and normalize the situation, but the crisis persists. But while their role is a welcomegesture of good will to the people of Kenya, overstretching mediation may permanently erode thecredibility of Kenyas established courts and other arbitration institutions which Kenyas people havepainfully nurtured for the last 44 years. What has come to be called the Kenyan crisis is a perfectlynormal situation that from time to time confronts in democratic systems. It should never be likened to

political crises in other parts of Africa like Somalia or Darfur-although Kenya may get there if this isnot addressed expediently.

Rather, what Kenya is witnessing is an election dispute like the one that engulfed America in 2000when the Democratic and Republican party candidates disagreed on the process and results. Whileelders like Jimmy Carter and James Baker were called by both sides to cool tempers, all parties to the

dispute were agreed that the court systemwith all its faults, including partisan and ideologicalinterests--was the way to go. Kenya will have many more disputed elections 200 years today. Nomatter how compromised the court system may be, it is still the only credible and sustainablearbitration mechanisms open to, and ever invested by, civilized societies.

Kenya needs the courts to suggest the way forward, not mediators to broker transient deals and powerpacts among powerful elites. Certainly, chaos in all its guises is never the way out. Kenya must nowreturn to reason. The opposition should stop all its mass action because it can only produce anotherdisputed, and possibly dictatorial, regime. The government should guarantee that the dispute will bedealt with within reasonable timeno more than three months. It might be necessary to call in judgesfrom other commonwealth countries to provide the necessary neutrality and restore the confidence ofthe parties to the dispute in the courts. Finally, all parties must be prepared to honor the final verdict

of the courts: a recount, a re-run, or a victory of either of the parties.

The role of the court should be supported by national mediators and the media who have to do thespade work in reconciling communities torn by violent conflict and calming the nation. The nationalhealing process must of necessity involve the resuscitation of Kenyas multi-ethnic vision based on civicrather than ethnic citizenship, sanctity of law and public order and the courts as the supreme arbiter inall disputes, including election ones.

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africa policy brief no 1 january 2008

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