The struggle over the soul of Kenya’s new constitution took an intriguing turn in mid-May when the independent Judicial Service Commission (JSC) nominated Willy Mutunga to the position of chief justice and Nancy Baraza as his deputy. The Mutunga nomination is regarded as a small but significant victory for Prime Minister Raila Odinga in his attempts to claw back territory lost to the new alliance forged between rebels in his own Orange Democratic Movement (ODM) and the allies of President Mwai Kibaki.
Mutunga is a stalwart of Kenyan civil society. A former law lecturer at the University of Nairobi, he was detained in the 1980s by President Daniel arap Moi’s government and has been at the forefront of constitutional reform ever since. “His is a very welcome nomination and strongly suggests that the JSC is determined to use a broom to clean up the mess in the judiciary,” says political analyst Adam Oloo.
In the short term, the Mutunga and Baraza nominations signal yet another defeat for President Kibaki, forced to climb down from the executive unilateralism to which he is so accustomed.
Odinga needed the victory. The alliance against him, led by Deputy Prime Minister Uhuru Kenyatta, former Odinga ally turned chief foe William Ruto and Vice-President Stephen Kalonzo Musyoka, has regrouped strongly in recent months, gaining mileage in the race to succeed Kibaki in the 2012 presidential elections. The International Criminal Court (ICC) has named Kenyatta and Ruto as suspected perpetrators of the 2008 post-election violence.
By suggesting a somewhat unlikely conspiracy between ICC prosecutor Louis Moreno-Ocampo, Odinga, and neocolonialism in general, they managed to dim Odinga’s star.
The immediate results of the strategy were a series of by-election victories, notably in Kenyatta’s Central Province Kikuyu stronghold, and the assembly of a formidable coalition of Kikuyu, Ruto’s Kalenjin community, and Musyoka’s Kamba ethnic group.
Stung by the attacks, Odinga beat a tactical retreat – a series of long foreign trips suddenly beckoned. Now Odinga is striking back. Within the ODM, he has moved to flush out the Ruto-backed rebels by forcing them out of influential parliamentary committees and threatening to withdraw ODM members from all parliamentary committees.
The stark reality of Odinga’s dwindling support in parliament continues to be masked by protection from the speaker, Kenneth Marende. But with the looming exit of the Ruto faction from the ODM, Odinga cannot be assured of his party’s continued domination of parliament. While the rebels fear expulsion from the party – it would mean expensive by-elections with few guarantees that they will retain their seats – Odinga is faced with the formidable prospect of cobbling together another coalition to give his presidential candidacy greater national representation.
Although opinion polls present him as the 2012 presidential frontrunner, he has a shortage of ethnic linchpins to bolster the bruising battle for the presidency. In his favour is the not unlikely prospect that the Ruto-Kenyatta-Musyoka alliance will fall apart before the elections.
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