Why Kenya’s judges will shape next year’s presidential elections

By Christine Mungai
Posted on Friday, 27 August 2021 15:37, updated on Saturday, 28 August 2021 09:27

Kenya's President Uhuru Kenyatta
Kenya's President Uhuru Kenyatta is harking back to an earlier age. REUTERS/Gonzalo Fuentes/Pool

When the Court of Appeal in Nairobi on 20 August ruled that President Uhuru Kenyatta’s plans to redesign government and hold a referendum were unconstitutional, they upended the ruling party’s succession plans.

Five of the seven judges on the Appeal Court bench backed an earlier ruling by the High Court that President Kenyatta could not launch constitutional changes through his Building Bridges Initiative, a plan he has put together with his new found ally Raila Odinga.

Their proposals would have created more posts at the centre of government, devolved more financial power to the county governments and created more parliamentary constituencies. Opponents saw it as a way to perpetuate roles for Kenyatta and Odinga in government.

Judge Patrick Kiage argued the President cannot initiate constitutional changes, then hold a referendum to get citizens to approve them. “Popular initiative is citizen-conceived and driven .. it must be initiated by the mwananchi (citizens) not the President,” said Kiage.

His fellow judge David Musinga went further: “The Constitution of Kenya Amendment Bill 2020 in unconstitutional and a usurpation of the people’s exercise of sovereign power.”

The proposed reforms, known as the Building Bridges Initiative (BBI),  had been presented by its proponents – primarily President Kenyatta and opposition leader Odinga – as a panacea to Kenya’s political dysfunction, making the system more inclusive and less contentious.

Power grab pushed back

But critics, including civic activists and religious groups, reject the plan as a selfish initiative to entrench political dynasties, a power grab to stage-manage President Kenyatta’s succession at the end of his second term next year.

The Appeal Court judges’ ruling against the plan is as big a show of the courts’ independence as was the Supreme Court’s annulling of the 2017 election results, then ordering a rerun.

President Kenyatta says he accepts the Appeal Court ruling but disagrees with it. Now he and Odinga have got to rethink their political strategy for the elections – and they have less than a year left.

In terms of partisan politics, the biggest winner of the ruling is Deputy President William Ruto who had opposed the BBI plan from the beginning, seeing it as a mechanism to lock him out of the presidency. Ruto has building up support for his own run for the top job.

That has poisoned relations with Kenyatta. This week, Ruto’s office complained that state security officers had been removed from his residences without consultation or explanation. Earlier, Ruto had been blocked from flying to Uganda, where he is trying to boost his profile as a regional leader.

Whatever happens next, the vigorous contestation in court over President Kenyatta’s constitutional changes points to the instability and uncertainty of Kenya’s political settlement.

Power, disorganised

Despite the discouragement of voters and the elites’ capture of the system in Kenya, subjecting proposed reforms to a judicial process where the outcomes are not foregone conclusions is quite rare in Africa.

For example, third-term presidential bids in Africa are a genre of executive overreach but are mostly done through some kind of formal, legal or constitutional process – although the outcome generally favours the incumbent.

Few presidents such as Eritrea’s Isaias Afwerki ignore the constitution and stay in power regardless.  Most follow a procedure, whether pushing through a parliamentary bill, a court decision, or a referendum, riddled as these may be with co-optation, vote-buying, or irregularities.

But the conditions in which such initiatives succeed or fail depend not just on matters of law and procedure but on the messy realities of how power has been settled among the political elite, whether in a stable or disorganised and unpredictable way.

Kenya is an example of elite disorganisation, which in the past have produced both political violence in the country and vital democratic reform.

“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. The disagreement is on the formal aspects of governance but also how to share the spoils,” says Kenyan historian and academic Dr. Ngala Chome.

 A tense instability can be seen as key to Kenya’s post-independence history, “an unusual mix of stability with ever-lingering fragility,” a political elite whose power and dominance has never fully consolidated and is now rapidly fragmenting.

“In today’s Kenya, the judiciary ends up being the arena where the contestation plays out, but this is only because of the conditions created by the elite fragmentation itself,” says Dr. Chome.

Outstaying their welcome

 The trend of presidents overstaying their term limits in Africa shows the ways in which politics can enable or curtail executive overreach. Kenya’ fight over the BBI plan is another example.

In the early 1990s, most African countries added term limits to their constitutions; between 1990 and 2018, the end of a term limit was reached forty-two times in twenty-eight countries.

In twenty-one of these instances, the respective incumbent president sought to extend his time in office, and sixteen were successful.

Over the past three decades, incumbent African presidents have challenged term limits 50% of the time they reach them, once they do, they have a 75% chance of success.

Presidents with a cohesive ruling party and legislative majority are more likely to succeed in evading or manipulating terms limits, as are presidents with a military background.

The incumbents’ toolkit for successfuterm-limit contestations generally includes “money, violence, intimidation, control of state media, and ethnic manipulation,” but success is less likely when the level of electoral competition is high, according to researchers.

Although Kenya’s BBI does not seek to manipulate term limits explicitly, it would rearrange the executive in such a way that creates a loophole for President Kenyatta to potentially remain in power under a new powerful post of 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 the act of tampering with the constitution that projects power, as it implies the weakening of checks and balances such as parliament, the judiciary and civil society, that should limit executive authority.

And perhaps that power and sense of inevitability 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.

Citizens united

Yet African citizens consistently call for presidential term limits to be respected, even in countries where such limits have been removed, as data from Afrobarometer shows. “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), parliamentary bills seeking to extend the term of the incumbent were defeated on the floors of the respective legislatures, although they passed Uganda’s parliament in 2005.

In Kenya today, the courts are an important site for this kind of contestation. The intense interest around the BBI debates, 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 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.

A very Kenyan hybrid

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

Most African countries with a strong authoritarian bent wouldn’t bother to subject a politically driven project to the uncertainty of a court case.

Many other countries have too many institutions with their own deep authority for the elite to attempt such a brazen and unconstitutional process as has been attempted with the BBI. In Kenya, the political consensus is genuinely unstable.

And while the country has changed, the way the elites think about governance has not, says Dr. Chome.

“You still have a cabal in Kenya who still 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 was the case during the colonial period,” said Dr. Chome. “However, this not been the case since the 1990s, and today is even less so.”

It explains why so much of Uhuru Kenyatta’s presidency has hearkened to an earlier, less complicated age where the president ruled by decree, unquestioned and accountable only to himself.

Kenyatta as president seems driven by nostalgia as much as anything else – it is as if he wants to ‘make Kenya great again’. 

That time is gone forever, and today’s political disorganisation might result in chaos and even violence, but it can also create opportunities for democratic reform and consolidation. Either way, the battles will be hard fought.

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