The ongoing political waltz between President Uhuru Kenyatta and his ex-nemesis Raila Odinga defines the peak of Kenya’s political culture where, as political strategist Cyprian Nyamwamu says, “the informal trumps the formal.” Historically one of our best “informal trumping formal” was the 2008 Kofi Annan settlement. What many people forget is that the process was concluded and even partially implemented long before a legal framework was put in place.
This season is no different. The drama started when anti-IEBC riots threatened the country’s delicate peace. The IEBC, as a constitutionally protected commission, was technically safe from NASA’s demands for its dissolution. But through what was largely an informal process, the entire commission was sent home and a fresh one hurriedly appointed.
What followed was a formal, though highly contested election in which Kenyatta was declared President. This formal process did not deliver to expectations, at least to NASA’s supporters. Initially NASA had even indicated it would not follow the formal process of challenging the election but wisdom prevailed and they successfully got the election overturned by the Supreme Court. The formal repeat election that followed was won by Jubilee but NASA stayed out of the race leaving Kenyatta as the formal President but in a tenuous political environment.
Raila was also left wounded by his boycott of the election. His informal “swearing in” as the “People’s President” though clearly his final bullet, left the country in a wobbly state with a significant portion of the nation disgruntled; not the recipe for calm that Kenyatta needed in his final term. Without doubt, all the formal legal and institutional structures for governing were in place but the country was just wobbling along. Businesses were struggling and many investors were applying a wait and see approach. Nothing in our formal laws provided for a way out of the morass.
Once again Kenya proved naysayers wrong. In what is now becoming a Kenyan tradition, a handshake happened on the morning of March 9 between erstwhile opponents Kenyatta and Raila. Calm returned instantaneously. Nothing in our formal structures provides for this occurrence and indeed there were no formal frameworks to support it. Only a communique was issued detailing very broad areas that the “Building Bridges Initiative” would handle.
For such a major initiative, it was amazing how little it disclosed of the details of any agreement between the protagonists. And yet, the country calmed down and many hitherto cautious investors reopened their cheque books. Six months since the handshake, little on the formal side has occurred. Little has been heard of the Building Bridges Initiative other than the occasional notification of some impending conference or the collection of views on some Kenyan vice.
The law has not been changed either. Kenyatta is still the unchallenged Head of State and William Ruto his deputy. NASA remains the formal Opposition. But this has not stopped vibrant informality from defining Kenya. NASA works alongside Jubilee on key issues. Raila’s motorcades and security are of the size normally reserved for presidents.
He gets the protocol treatment of a co-principal and he even represents the government in international engagements. And Kenya’s political crisis is solved, however temporarily. These political challenges and their informal extra-constitutional resolution clearly raise the question about the adequacy of our formal constitutional structures to resolve our most intense political questions.
The obvious capacity of informal arrangement to cure the deficits in our formal structures raises the question as to whether they are merely incidental or are slowly becoming an integral part of governing traditions. It is tempting to squeeze these processes into some formal framework but there is wisdom in recognising them as part of Kenya’s political culture and leaving them as informal principles that guide future conflicts.
What is without doubt is that something fundamental is shaping Kenya’s political culture that requires to be understood, studied harnessed and integrated in Kenya’s political lexicon. While so much about Kenya is embarrassing, this is definitely something we can proudly sell to the world!
-The writer is an advocate of the High Court of Kenya
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