Who gains, who loses? Impact of court blow on Ruto, Raila deal

President William Ruto and Azimio leader Raila Odinga. [PSCU]

The recent ruling by the High Court temporarily stopping the audit of the 2022 presidential election as proposed by the National Dialogue Committee (Nadco) threatens to thwart the entire process.

For months, Raila Odinga’s Azimio la Umoja-One Kenya fought Kenya Kwanza’s reluctance to have the issue included in the talks’ agenda. When they eventually agreed to include it, Azimio saw it as a major win for them.

The opposition coalition’s major grievance has seemed to be centred on the 2022 polls, with observers suggesting that Azimio was using the issue of the high cost of living to rally the masses to the streets in last year’s anti-government demonstrations.

Indeed, the former prime minister first called for the protests when he got wind of an alleged dossier containing results of the presidential election that he said was genuine.  Raila claimed that the dossier showed he had won by 8.1 million votes against President William Ruto’s alleged 5.9 million.

These figures first came up in December 2022, three months after the Supreme Court had found Dr Ruto had been validly elected president, dismissing much of Raila’s evidence, delivered in a truck before it as forgeries and “hot air”.

Months later, the former premier would insist that the  election servers be opened. His calls faced resistance from the president and his allies, who argued that the Supreme Court had duly audited the election servers.

That is the same argument that Francis Mureithi, a petitioner, presented before Justice Dora Chepkwony, who issued temporary orders barring the implementation of the audit Azimio wants.

In some way, an eventual verdict against the audit would be a win for Ruto in his assertion that he beat Raila fairly. Similarly, his other proposals, such as creating the position of Prime Cabinet Secretary (PCS) and entrenching affirmative action funds into law are yet to be challenged – another victory.

With the PCS position, he can keep Musalia Mudavadi comfortable within Kenya Kwanza and has the option to offer it to prospective allies in the event of a political shake-up. Such dynamics will be available to the opposition ahead of the next general election.

The loss would undoubtedly be Raila’s. Signs of that are evident in his allies’ reactions. For instance, National Assembly Minority Leader, Opiyo Wandayi read mischief in the court case, with Saboti Member of Parliament Caleb Amisi viewing the talks as a long con.

“It was just a gimmick by Kenya Kwanza to get Azimio off the streets and they succeeded,” said Amisi, whose Azimio has for months questioned the Head of State’s commitment to the dialogue.

University lecturer Herman Manyora believes both Ruto and Raila gain, arguing that they had “no intention of opening the server”.

“Their deal is done. Raila is not thinking about the 2022 election. He has already put it behind him and is looking at the AU job,” says Manyora, who further faults such a push as impossible.

“An audit of the election is not negotiable within any legal framework... An election was conducted, a winner declared and the Supreme Court made it’s final verdict. The moment Raila decided to take the talks to Parliament, he agreed to work within the legal framework.

Impeach government

“You can impeach the government in the streets by questioning its legitimacy. You cannot take issues of legitimacy to court, Parliament or Nadco and impeaching the government in the streets is not unconstitutional. What is unconstitutional is overthrowing the government - treason... People can seize back their power and that is the only way to overturn a Supreme Court decision,” said Manyora.

Indeed, Ruto has enjoyed some peace in the last few months. The talks, midwifed by former Nigeria President Olusegun Obasanjo, have kept the opposition off the streets.

At the height of the opposition’s demos, business within the capital and other parts of the country was grounded as many kept off the protests’ ground zeros. That changed when the former premier called off the protests.

In the subsequent months, Raila toned down his attacks on the government, saying he would await the outcome of the talks between Azimio and Kenya Kwanza.

But Raila is also staring at another loss with plans to reconstitute the Independent Electoral and Boundaries Commission (IEBC) and expand its selection panel. The high court recently ruled that there was no legal backing for the said moves, directing the Nelson Makanda-led selection panel to resume its recruitment of electoral commissioners.

Azimio’s issue was that Ruto had forced a formula of selecting panellists that favoured the Executive, which would, in turn, result in an IEBC that was subservient to the president.

But Raila is not entirely a loser, given his truce with the Commander-in-Chief has earned him Ruto’s support as he seeks to be the next chairperson of the African Union Commission (AUC). Many see that as a soft landing for the opposition veteran, with some within his ranks optimistic that Raila’s exit would open up more space for them.

Such prospective beneficiaries  include Wiper Leader Kalonzo Musyoka, who has already begun popularizing his candidacy for a presidential bid in 2027. But even as he waits to take on Ruto, he could land the Leader of the Official Opposition position, a role Nadco proposes in its report.

Others angling to potentially deputise Kalonzo in the opposition, such as former Governors Wycliffe Oparanya (Kakamega) and Hassan Joho (Mombasa) could reap big.

However, all their hopes depend on whether or not the provision will be successfully challenged in court and whether the opposition would wish to have the report passed without favourable provisions.

Raila has insisted that the report should be implemented “unaltered”, setting the stage for renewed resistance if the courts were to throw out Azimio’s demands of auditing the presidential election and reconstituting the IEBC.

A successful court challenge against the report would dent Ruto and Raila, given the pair hoped to gain differently from the talks. For Ruto, a truce with Raila meant that he could succeed in amending the Constitution if the need arose, given he would secure two-thirds support in Parliament.

But the ultimate loser would undoubtedly be mwananchi, who has been treated like  pawn in the duel between Ruto and Raila. Many lost their lives seeking to have the high cost of living addressed, but the committee disagreed on the subject. Perhaps Narc Kenya Leader Martha Karua and former Defence Cabinet Secretary Eugene Wamalwa would fancy such a fate. They oppose the report because it gives no solution to the high living costs.

Further, many, including constituents of Banissa, face the risk of lack of representation, with the recruitment of IEBC commissioners suspended indefinitely. Delays in having a functional IEBC in place also mean that the boundary delimitation exercise, which fell due last month, will not happen, inviting a constitutional crisis.

Just like the Building Bridges Initiative, mwananchi has shouldered the burden of funding similar processes, which have often resulted in a loss of public funds. and now the masses have to contend with the new taxes which has have been introduced  by the government amidst outcry from the citizenry.

“There was nothing in it for mwananchi. The talks were about peace for Ruto and something small for Raila,” adds Manyora.