Kenya: How the Appeal Court could shape the 2022 election 

The Judges are to assess the High Court’s declaration in May that the Building Bridges Initiative (BBI) – an elaborate plan billed to end “winner takes all” ethnic politics – is unconstitutional. This follows two deadly bouts of election violence, in 2007-2008 and 2017, in which most of the country’s political elite played a role.

This latest row over the BBI points to schisms within the ruling class, according to historian Dr. Ngala Chome: “Over the past thirty years, the story of Kenyan politics is about elites trying to figure out the rules of the game and also how to evade them because they don’t trust each other.”

He describes the elite as one whose power and dominance has never been fully consolidated and is now rapidly fragmenting. “The disagreement is actually both on the formal aspects of governance but also on how to share the spoils.”

And this, argues Dr. Chome, is adding to the pressure on public institutions: “In today’s Kenya, the judiciary ends up being the arena where the contestation plays out.”

That explains how it is that the Appeal Court is to rule on a project to redraw the constitution, some four years after the Supreme Court invalidated the official results of the presidential election and ordered a rerun.

The Appeal Court now finds itself at the centre of high politics, ruling on the President’s Building Bridges plan. The BBI, also known as the “handshake”, is central to the political deal made between President Kenyatta and erstwhile oppositionist Raila Odinga in 2018. It gives the President the power to appoint a prime minister and two deputy prime ministers and creates another 71 parliamentary constituencies.

Big tent, or one-party rule?

Its logic is that it pitches a tent in the middle of Kenya’s politics that is big enough to contain all the rival parties and factions. In so doing it creates lots of new political jobs across the country. To its critics, that sounds like suspiciously like a one-party state.

Those critics, led by Deputy President William Ruto, add that the BBI is a selfish initiative to entrench political dynasties and a power grab to stage-manage President Kenyatta’s succession at the end of his second term next year.

More liberal critics – who may not necessarily overlap as supporters of Ruto – also argue the BBI also undermines the independence of institutions such as the judiciary, the Office of the Public Prosecutors and the police. It also recommends abolishing parliamentary vetting of presidential appointees, ministers and permanent secretaries.

In part, it is a reversal of the 2010 constitution which devolved power to 47 counties, strengthened parliament and was overwhelmingly supported in a referendum.

So sweeping are those proposed changes, the High Court judges ruled that they amounted to constitutional changes and would have to be subject to another national referendum.

That creates dangerous complications for the Kenyatta-Odinga partnership. First, it puts at risk the carefully constructed parliamentary majority to support the BBI. The architects of the plan may have to redesign it before they take it back to parliament.

Secondly, redrawing the plan and winning support for the changes in parliament and the counties will take several months, making it near impossible to hold another referendum this year.

Pushing a constitutional referendum into next year would entangle it with the start up of campaigning, likely to be fiercely even violently contested, for parliamentary and presidential elections. Deputy President William Ruto and his United Democratic Alliance are already on the vote trail.

Constitutional changes such as the BBI or ending terms limits for presidents depend not just on matters of law and procedure but on the messy realities of how power has been shared by the political elite, whether in a stable or disorganised way. Kenya is a good example of elite disorganisation, which has produced both political violence and bold democratic reform.

Third termism

In the early 1990s, most African countries adopted term limits in their constitutions. Over the past three decades incumbent African presidents have only challenged term limits 50% of the time they reach them, but once they do, they have a 75% chance of success.

Presidents who can count on a cohesive ruling party and legislative majority are more likely to succeed in evading or manipulating terms limits, as are presidents who have a military background. The incumbents’ toolkit also includes “money, violence, intimidation, control of state media, and ethnic manipulation”. Success is less likely when electoral competition is high, according to researchers.

Although Kenya’s BBI isnt’t trying to manipulate term limits, it rearranges the executive to allow President Kenyatta to potentially remain in power under a new post of executive prime minister. On his part, Kenyatta has said he is “not interested” in a third term.

“The African trend is that once the formal process of constitutional amendments of this scope begins, the incumbent is very likely to succeed,” says Charles Onyango-Obbo, journalist and long-term Africa analyst. “Starting the formal process is already signalling a win.”

It is tampering with the constitution itself that projects power, as it implies the weakening of the checks and balances that should limit the executive. It can also undermine the judiciary, parliament and civil society.

Perhaps that power is what delivers the win – all the African incumbents who have removed presidential term limits have gone on to win subsequent elections, and have remained in power.

Yet Africans voters say they want presidential term limits to be respected, even in countries where such limits have been removed, as data from Afrobarometer shows. It suggests that elections are not the platform where the voice of African citizens is heard. “Term-limit advocates fight for space, often in the streets and at great risk to their lives,” says Afrobarometer.

Apart from the streets, parliaments have also been an arena where third-term bids have been fiercely contested: in Zambia (2001), Malawi (2003) and Nigeria (2006).

In Kenya today, the courts are hosting this kind of contestation. The interest over the BBI case, covered live on daytime television, can be understood against this backdrop.

“Historically, Kenya has had decades – going back to the 1970s – of democratic activism that was almost entirely domiciled in Kenya and fully organic,” says Onyango-Obbo. “This is unlike many other countries in Africa where democratic agitation was significantly driven by activists in exile or an active diaspora population – think apartheid South Africa, Idi Amin’s Uganda, or even the Ethiopian diaspora in North America.”

“But in Kenya there are no huge exits of activists or a dislocation of that democratic agitation, it remains domestic – and the result of that is that as party politics and elections become increasingly dysfunctional, the judiciary becomes that significant site of activism. There are only a few countries where these deeply philosophical contests about power, democracy, and sovereignty of the people happen in the courts with the possibility that the outcome could go either way,” says Onyango-Obbo.

Is Kenya an illiberal democracy?

The BBI process, no matter what the outcome, points to Kenya as a hybrid regime or illiberal democracy, as the 2020 Democracy Index would define it.

Most authoritarian African regimes wouldn’t subject a politically driven project to the uncertainty of a court case. Other countries have too many institutions with their own deep authority for the elite to attempt such an unconstitutional process as has been tried with the BBI. In Kenya it could go either way.

The country has changed but how the elites think about governance have not, says Dr. Chome.

“You still have a cabal in Kenya who believe that a handful of people can control everything, from land to security and resource governance, and can determine the fate of everyone else as during the colonial period,” said Dr. Chome. “This not been the case since the 1990s, and today is even less so.”

This may explain why much of Uhuru Kenyatta’s era has hearkened to an earlier, less complicated age where the president ruled by decree, unquestioned and accountable only to himself. Kenyatta as president seems to be driven by nostalgia as much as anything else – it is as if he wants to ‘make Kenya great again’.

But that time is gone forever. Today’s political disorganisation might result in chaos and violence, but it can also create opportunities for democratic reform and consolidation. It’s going to be hard fought either way.