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| Kenyans rally for the new constitution (2010) that made this moment possible |
In Kenya’s last
presidential election, President Obama’s State Department decided to assert
itself by warning Kenyans of the consequences of electing two men under
investigation by the International Criminal Court for allegedly fomenting
violence during the country’s disputed 2007 election. Britain and other European countries joined
in issuing these unveiled criticisms of Uhuru Kenyatta and William Ruto, the
two men on the ticket for the country’s top job.
Predictably, the
intervention by the U.S. and Britain backfired spectacularly. The spectacularly wealthy Kenyatta, son of
the country’s first president, lashed back at his critics, asking Kenyans
whether they were going to let foreigners tell them how to vote. He wondered aloud why the ICC only pursued
African leaders (a fair enough question, though not in itself an argument in
his defense). And he campaigned claiming
to be a nationalist under assault from the very kind of neo-colonial interests
that his father allowed in the door after independence.
The disappearance of
witnesses led to the ICC dropping the case against Kenyatta after he won the
presidential election, and he governed as an industry-, infrastructure-, and
business-friendly technocrat, saving his populism for the campaign trail. He has made skillful use of social media,
even while seeking to restrict the ability of the national media to shed light
on some of the goings on in his government.
And he was widely
believed to have a strong edge in the 2017 election, having built a strong
political coalition, hitched to the machine of his running mate, Ruto, whose
Rift Valley machinations have drawn comparisons to the powerhouse Moi family,
the patriarch of which served as Kenya’s president-dictator from 1978 until
2002.
In 2017, international governments
and observers believed they had learned their lesson. Kenyatta had proven himself more than capable
of leading a government with which they could do business, Barack Obama paid a
nostalgia filled visit to the country under a presidency his administration had
sworn would see Kenya isolated, and many believed that Kenyatta would not need
to manipulate the election in order to win a clean victory. The culture of impunity fostered by his
escape from the ICC was a thing of the distant past.
And so observers brushed
aside the under-substantiated complaints from opposition leader Raila Odinga’s NASA party about
irregularities, and declared the election free and fair.
Three weeks later, Chief
Justice David Maraga, presiding over an emboldened judiciary built by Willy
Mutunga and others, announced the Supreme Court’s decision to annul the results
of the election, citing unspecified irregularities and ordering a new contest
within two months.
Odinga supporters greeted
the news ecstatically, believing that the cloud it set over the head of “Uhuruto”
and the Jubilee Alliance will give Odinga a better chance at the presidency
that has so far been denied him by means fair and foul. He is an emotive populist to Kenyatta’s slick
technocrat, and
upon hearing the court’s decision, thundered that if on election day
Kenyans had “crossed River Jordan and went until the great wall of Jericho,” then
in two months’ time “we will have made it to Jerusalem.”
But other Kenyans are
taking pride in the court’s decision because it marks the triumph of
institutions above individuals. In 2010,
the country’s citizens voted to establish a new constitution, which has become
a kind of touchstone for the country’s soul ever since.
The new constitution was
designed to replace the governmental hardware and infrastructure inherited from
the colonial state in the 1960s, which had enabled decades of dictatorship,
abuse, and uneven development with more responsive, credible, and democratic
institutions. It strengthened the
judiciary. And it devolved significant
powers to counties and governors in an effort to bring government and the
development the state can foster closer to Kenyan citizens.
I was in Kenya during the
campaign for and referendum on the new constitution, and it embodied the same
kind of optimism and excitement that had rippled through the country years
earlier with the return of democratic politics.
This morning, Chief
Justice Maraga reminded Kenyans, that “the greatness of a nation lies in its
fidelity to its constitution and strict adherence to the rule of law and above
all the fear of God,” collapsing the country’s considerable religiosity with
the civic reverence for the document representing the second coming of
independence.
The
Daily Nation newspaper declared
that the court’s decision was “the single most outstanding explication of the
supremacy of the rule of law and maturation of our democracy,” demonstrating “independence
of the Judiciary and signaled the end of the era of impunity that has painfully
assailed this country for far too long.”
To his credit, Kenyatta
accepted the ruling, but
promptly began attacking the court, wondering why “six people have deiced
that they will go against the will of the people,” and accusing the judges of
having been “paid by foreigners and other fools,” while reminding Maraga that
he was “dealing with the serving president.”
It is a style of politics
that has worked for Kenyatta and other incumbents in the past. But those shadowy outsiders will be more
difficult to identify, particularly because they signed off on Kenyatta’s
victory. And Kenya’s judiciary, a source
of national pride, will make for a trickier target than inept American and British
diplomats who failed to grasp the basic elements of “geopolitics 101.”
Kenyatta’s greater
advantages might very well be the resources of his party and the impressive
power of incumbency. Much will depend on
the court’s full articulation of the basis for its annulment of the earlier results,
and the extent to which the alleged improprieties can be addressed in the
coming sixty days. And it will be
fascinating to see whether the opinion polls that will soon again become a
staple of reporting and analysis will reflect election fatigue and a desire to
abandon or punish Odinga, a revitalization of his base (into which Kenyatta and
Ruto made some inroads), or any signs that the independence of Kenya’s
judiciary might provoke movement and re-thinking within the component parts of
the two main alliances’ constituencies, something
tentatively forecast in the immediate reactions of one keen-eyed analyst.
Whatever happens, this is
an event of monumental significance in a country in which for some of its
national community, the strong always seemed to prevail and impunity seemed to
define relations between the people and their government. Odinga’s father wrote a famous book, Not Yet Uhuru, which highlighted
impediments to full independence (uhuru). The
insertion of a single comma gives a new lease on life to the phrase.
