The Supreme Court ruling on the Kenyan presidential election

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Kenyan Supreme Court members on the bench

 At the beginning of this week the Supreme Court  released a report that described their full judgment in detail. This report explained that simply there was not enough evidence that supported the claims that the technology errors would have influenced the results of the election (Mayabi-election, 2013). The report also noted that further investigations and possible prosecutions of the IEBC tender committee members who participated in the procurement of faulty technologies during this presidential election is needed (Mayabi-IEBC). In response to the Supreme Court’s decision regarding the IEBC, a website, “People’s Court” that contains all the evidence used in the Supreme Court was launched by Gladwell Otieno and Zahid Rajad from Africa Center for Open Governance and Maina Kiai from Inform Action (Mwangi, 2013). The creators hope the website will allow for members of society to engage in an open debate about the transparency of the government.

I am going to try to closely examine the Supreme Court opinion and get back to you with my thoughts. 

Trying to press on, Kenyatta and the new administration have a long road ahead. On top of facing the challenges with the ICC and a slow economy, Kenyatta must tackle corruption and ethnic divisions during his term. Bonny Khalwale, a newly-elected senator explained that it’s not the tribes that divide the country, but the unequal distribution of resources, specifically land(Ngugi, 2013). According to the United Nations Development Programme (UNDP) Kenya has one of the most unequal societies in the worlds: 30% of all citizens live in poverty.  Therefore, food insecurity, unemployment, and corruption, must, Khalwale argues, be on the top of Kenyatta’s agenda. Economists and policy exerts explain that some of the promises made during Kenyatta’s speech aren’t feasible with the challenging economy, and instead, open dialogue about ethnic divisions and corruption is needed (Ngugi, 2013).

~WMB

Moving past the election controversies in Kenya

 

President Uhuru Kenyatta his Deputy William Ruto share a light moment with Former Prime Minister Raila Ondinga and his running mate Mr Kalonzo Musyoka at State House Nairobi. Photo credit, the Daily Nation

In the past week Kenya is slowly moving past the election controversies and the Supreme Court ruling that upheld Kenyatta as the newly elected president. The Carter Center released a report that heavily criticized the election procedures and the IEBC but also praised the handling of the situation by the candidates and the government. Overall, the Center argued, the results of the election are "an expression of the will of Kenyan voters" (Carter, 2013). I am particularly gratified by the Carter Center's results, because I have said since the beginning that the technological problems were very dissapointing, but the election was free and fair. I hope we can look forward to even better elections in the coming years.

The Chairman of the IEBC, Issack Hassan, stated that despite the problems of this past election that have been painfully scrutinized, they will be continuing the use of electronic technology after a full audit of the equipment is completed. Hassan stressed, “Overall the election was credible and transparent; we did not hide anything; all the failures were seen by the public” (Mayabi, 2013).

Moving forward, on Tuesday, April 9^th , Uhuru Kenyatta, was sworn in as the nation’s fourth head of state. Although the ceremony went well and was peaceful, there were concerns about violence during the ceremony earlier in the week when reports of youth being recruited to create chaos were made. Eighteen areas of potential threat were identified and four people who were accused of being behind the plans were taken into custody (Burrows, 2013). During the Ceremony, criticism of the ICC trials emerged during various speeches. During his speech, Kenyatta made a slight reference to the court but moved quickly on to other items such as giving a list of his goals and plans for his presidency. He congratulated Kenya for a successful election, although presidential opponent Odinga was not in attendance (Gettleman, 2013). Many have hailed Odinga as a statesman for giving a concession speech. In my personal opinion, which you may not like, it is not statesmanlike at all for him to boycott the inaugural. It lacks style, class and distinction. I for one, am dissapointed.

Now that the election is over, the issue of the ICC trial is front and center. Since the election over a dozen witnesses have been dropped from the cases (Ndonga, 2013), there is sharp criticism over media coverage, and the government has been accused of not cooperating with the ICC prosecutors. The ICC prosecutors stress that the country must follow their protocol and no one, even head’s of state, will be given immunity. Attorney General Githu Muigai exclaimed that since the accusations made by the court have serious implications, the complaints of no-cooperation should be on notice to give Kenya a chance to respond, which has not been done (Kaberia- Sabotage, 2013).

Fergal Gaynor, representative of victims in the ICC case against Kenyatta, backed the ICC’s accusations and asked for the Chamber to speed up Kenyatta’s trial due to claims of witness intimidation. Gaynor claims that charges against former head of state of civil service Francis Muthaura were dropped on basis of witness intimidation and the prosecution should have prevented this and its now an incentive to those who seek to undermine the court through bribery and intimidation. Kenyatta’s council has requested the case be referred back to the pre-trial chamber. Fergal expresses that this is just a tactic to delay that he argues, carries enormous risk (Kaberia -hurried, 2013).

Kenyatta and Ruto still claim the ICC trials will not interfere with their work and that their trial is only a minor, and temporary distraction. During his inauguration speech Kenyatta offered words of hope and stressed that politics should not divide the nation. He promised that he will lead all Kenyans to prosperity and peace and his government will be inclusive, which will reflect the “true face of Kenya” (Matata & Omino, 2013). 

During his first 100 days is office, Kenyatta promises that he will reallocate the SH6 billion ($70 million) he put aside for a possible run-off election to a youth and women’s fund. He also promised to provide free maternal health care as well as making laptops the standard for students next year (Matata & Omino, 2013). As an educator who studies technology, until all children in Kenya have the benefit of free standard secondary education, I do not think that laptops are a good investment. The best investment is that every Kenyan has mastered reading, writing and arithmetic at high levels by age 18.

Analysts and economists, however, wanted to focus on Kenya’s economic growth and bridging the gap of inequalities, realistically. On March 5^th Kenya implemented a new devolved system of government where decisions affecting the 47 countries will be addressed at the local level rather than the national and during his speech, Kenyatta has promised to create a million jobs (Gathigah, 2013, Lattus, 2013).  Analysts speculate that the economic environment looks promising and with the implementation of the constitution and government spending, investor’s confidence will likely boost and therefore bring economic growth (Lattus, 2013).  Further, the most logical place to expand jobs is in the government sector, due to the local government offices being built because of the devolved system of government, which will improve distribution of resources (Gathigah, 2013).  Unfortunately, expanding government jobs will not strengthen the Kenyan economy, but will place an additional burden on Kenya's already top-heavy government.

In other news, Kenyatta has made it clear that no cabinet members from Mwai Kibaki and former PM Odinga’s coalition government will serve under him. He stated their tenure has came to an end and all members should vacate their offices immediately. Permanent secretaries and accounting officers will continue to look after affairs until new appointments are made. He did offer since gratitude to the Ministers for their service. Burrows, 2013 Further, Vice President William Ruto has been given the responsibility to coordinate and supervise ministries in the next government. Ruto will name half the Cabinet under the terms of the Jubilee coalition agreement while his URP party has large blocks in both the National Assembly and the Senate. Kenyatta has delegated supervision of government to Ruto, which will allow him to deal with other components of the Presidency. Since both are on trial at the Hague, and have been denied video-conferencing, this consultation is crucial. It was noted that Ruto called former PM Odinga and discussed range of topics, including the need for Odigna to work with the Kenyatta administration to unite the country. It was reported that Odinga wished him nothing but the best in the new position.

Mathenge, 2013

Huge thanks to my fabulous GA, Jillian!

Global Justice, Accountability and the Kenyan election

As we move forward please consider the following views by scholars. I am personally familiar with the work of all three of these scholars, and I respect their views.

Jendayi Frazer

Jendayi Frazer--former US Assistant Secretary for State for African Affairs, former Harvard Kennedy School Professor, and current adjunct senior fellow for Africa Studies at the Council on Foreign Relations-- critiques the role of the ICC in the recent Kenyan election. She makes several important points that I think are worth noting. First, she notes that The Supreme Court of Kenya correctly allowed Uhuru Kenyatta to run on February 15, 2013 because the ICC cannot bar candidates. Second, she argues that the ICC was pre-emptively trying to try and convict Uhuru Kenyatta in the court of public opinion. Further, she states that the ICC's legitimacy has been compromised by the fact that Luis Moreno Ocampo has only found cases of atrocities and crimes against humanity in Africa. ICC has Fallen Fromt the High Ideals of Global Justice, Accountability, Jendayi Frazer Daily Nation, March 16, 2013. Most importantly, she states that "Kenya's new institutions must be respected and allowed to operate autonomously."

Mahmood Mamdani

 The world renowned Africanist Mahmood Mamdani, whose work  I teach in my class, ( I recommend Citizen and Subject, among other books) weighs in as well. He argues that there were two key issues in this election, land and the ICC.  Indeed, tragically, the three largest landowners in Kenya are its three presidential families, Kenyatta, Moi, and Kibaki. (As an aside, this fact breaks my heart, and it indicates to me that since Independence, Kenya has been more of a predatory state than a developmental one.) Mamdani notes that the explanation for the ethnic reconciliation which occurred this March the 4th between the Kalenjin and the Kikuyu can be found in the domestic impact of the ICC. He argues that the ICC re-ethnicised Kenyan politics, re-dividing the country into two large ethnic coalitions. Kenya 2013: The ICC Election, Mahmood Mamdani, Al Jazeera March 15, 2013

Makau Mutua

  Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the Kenya Human Rights Commission. (He has an excellent book entitled Kenya's Quest for Democracy, Lynne Rienner Press) He emphasizes the need for the candidates to accept the court's opinion, even if they disagree with it. He notes that for an election to be gree and fair, there must be universal suffrage. All eligible voters must be able to register in credible, verifiable, tamper proof rolls. Candidates must enjoy an environment free of repression. The state must not favor a candidate or doctor the process. He emphasizes the need for the IEBC to be independent. What Is Odinga's Case Against Uhuru Kenyatta? Makau Mutua, The Daily Nation, March 16, 2013 Importantly he notes

"The Supreme Court would most likely nullify the presidential vote if it's proved the numbers tampered with were sufficient to cannibalise the 'will of the voters.' But this is a tall order, and the statistical evidence must be damn near impeccable."


Food for thought, indeed. 

~WMB 

That Pesky ICC Matter

Logo of the ICC

I was a professor at the American University in Cairo during the year of Revolution (2011). I loved all my students, and I have taught a leadership class there every summer since. But one thing I noticed is that Egyptians do not know how to have a conversation. I love you guys, but every small dispute becomes a shouting match. Parliament is dismissed, and Tahrir has become the parliament of the streets. One thing I love about Kenyans is how calm they are. Perhaps it is innate, and perhaps it is the British influence, but Kenyans are generally a reserved and controlled people.

One of the issues that is really raising temperatures in the post-election environment is the debate about the Hague.

One of my good, helpful ICT colleagues whom I respect enormously said to me

"the fact that the new President is in the Hague should be the main
focus of ALL press coverage!"

TNA Campaign Poster in Kikuyu (photo credit the author)

And my beloved GA wrote (I requested her views on this matter) states

"I think it's ridiculous that the main political figures have charges as severe as "crimes against humanity." During the second debate [the candidates] spent quite a bit of time talking about everyone's numerous acts of corruption and it was quite frustrating to see everyone complacent. "Eh, it wasn't as bad as it sounds, or that was the other prime ministers."[  .. . ]  Not to say that politics/ politicians aren't similar everywhere, but it seemed so blatant. I chew on how severe the phrase sounds (and in reality should be: the charge is): crimes against humanity. It seems like something out of a science fiction novel. So yes, the fact that people were worried of whether or not Ruto and Kenyatta would be "distracted" by the court hearings and whether they could run the administration from Skype is a slap in the face to how serious these charges are, or should be. If Odinga should have been charged too, then yes, it's ridiculous that he was running [ . . . ] I saw articles talking about how citizens had amnesia. Apparently!"

Then Gathara reminds us of this point. Gathara's World

We had already normalized the abnormal, making it seem perfectly acceptable to have two ICC-indicted politicians on the ballot. At the first presidential debate, moderator Linus Kaikai had been more concerned with how Uhuru Kenyatta would “govern if elected president and at the same time attend trial as a crimes against humanity subject” and not whether he should be running at all. Any suggestion of consequences for Uhuru’s and William Ruto’s candidature had been rebuffed with allegations of neo-colonialism, interference and an implied racism. People who had spent their adult lives fighting for Kenyans’ justice and human rights were vilified as stooges for the imperialistic West for suggesting that the duo should first clear their names before running for the highest office in the land.

Uhuruto Poster in English (photo credit the author)

So my question to the audience is, given that the Kenyan people elected two persons who have been indicted by the ICC, how do we move forward? Kenyans have spoken. Even if the court decides that there were serious election violations, and that a runoff is needed, Kenyatta won by a large margin. Kenyans may be wrong, but this is what they decided. Now what?

The last line of a recent Jeffrey Gettleman piece in the New York Times caught my attention.

Now that the two have won, many supporters wonder why the International Criminal Court cases are even necessary. 

“If Uhuru and Ruto have succeeded in reconciling warring communities, isn’t that the point?” asked Edward Kirathe, a real estate developer. “What other interest does the I.C.C. have?”

~WMB