Kenya at a Crossroads: Time for genuine dialogue, not chest thumping

Demonstrators in Migori town shows the press a live bullet recovered on March 27, 2023 during the antigovernment demo called by the Azimio one Kenya leadership. [Caleb Kingwara, Standard]

Kenya is at a crossroads. Will she become a failed state or a continental anchor state? We could truly live our oft sung national anthem prayer - "O God of all creation, Bless this our land and nation, Justice be our shield and defender, May we dwell in unity peace and liberty, Plenty be found within our borders"; or just disparage the national vision it encapsulates. It is our duty to choose. Both citizens and the political class.

Admittedly we are in a Maandamano season. Azimio la Umoja-One Kenya coalition has called out the country to demonstrate in support of multiple causes. High cost of living fueled by rising prices of food, electricity and other basic commodities; stolen 2022 presidential elections; opening of the server; and partisan recruitment of the Independent Electoral and Boundaries Commission (IEBC). Other supplemental grievances include recruitment of 50 Chief Administrative Secretaries (CAS); corruption; ethicised recruitment into government and the public service; state capture; runaway insecurity especially in the North Rift; subjugation of the Legislature and the Judiciary by the Executive; police brutality especially as a response to the demonstrations, etc.

Truth be told the citizens' and especially the unemployed and under-employed youths' magnetic pull factor into Maandamano is the high cost of living. Any group in the country could have jump started demonstrations by invoking high cost of living. Raila Odinga happened to be the first to trigger the call. The high cost of living reality will not miraculously evaporate until it is addressed. This socio-economic conundrum has brought many a government down.

Legally one can argue that after the IEBC and Supreme Court handed their verdicts on the 2022 presidential election and the former president transferred power to the incoming president, the electoral chapter was closed.

It is to be noted during the 2022 presidential petition, the Raila side requested for information regarding the Server and a re-examination of results from a number of polling stations. Such information was availed. Presidential results were the sum total of the votes at the 46,232 polling stations. Therefore, before the results were transmitted either manually to the National Tally Centre at Bomas or electronically through the Server, each presidential candidate had the result from their polling station agents. Due to changes through electoral law and judicial decisions, the polling station has become the nerve centre of the country's electoral infrastructure. If the Server results are not a replica of the polling station results, then the Server results are null and void.

The process of recruitment of the IEBC is ongoing and is being midwifed through the law as recently amended by Parliament. Kenya Kwanza has secured a majority in Parliament and is able to pass legislation that it deems necessary for execution of government business. However, Azimio-One Kenya Coalition argues that the IEBC must not be created by one side of the political divide whatever the legal position.

The CAS matter is before the courts awaiting judicial determination.

Consequently, Azimio-One Kenya Coalition's major grievances boil down into high cost of living and partiality in the establishment of the ultimate electoral referee, the IEBC.

The government side argues that the president won the elections fair and square and thus the opposition has no valid reason for calling Kenyans to demonstrate. Moreover, the high cost of living debacle has its origin in the last government and was also caused by ballooning public debt, natural calamities such as the endemic drought arising from the climate change crisis and external factors to wit the aftershocks of Covid-19 and the Russia-Ukraine War. Hence, at best, the high cost of living quandary is a shared mess. No political side is solely responsible for it and, therefore, to mobilise citizens for demonstrations on the premise that the problem rests squarely on the shoulders of the current government is misleading; indeed duplicitous.

Tied to the question of high cost of living is the reality of the country's socio-economic structure. Why is it that, in particular, Kenya's economic organisation has perpetuated wealth concentration for a minority and poverty for the majority and particularly massive youth unemployment and lack of enterprise and other opportunities? How come 60 years into independence,we are a nation which cannot feed itself and time and again we depend on foreign countries to supplement our annual budget? This is the core question that civil society activists and ordinary citizens are beginning to bring back on the table. Simply put: what is wrong with ailing Kenya six decades later?

The Mau Mau Movement under the leadership of Dedan Kimathi advocated for the overhaul of the colonial system so that Africans could regain their freedom and land.

Kenya Africa National Union (KANU) at independence promised to fight ignorance, disease and illiteracy. Sessional Paper No. 10 of 1965 on Africa Socialism and its Application to Planning in Kenya provided the blueprint on how to birth a post-colonial country of plenty. The 1966 Kenya People's Union (KPU) Manifesto launched by Jaramogi Oginga Odinga and Bildad M. Kaggia was more elaborate on how Kenya's socio-economic transformation could be achieved. The National Convention Assembly/National Convention Executive Council (NCA/NCEC) Plenary Resolutions of the 1990s as described in Willy Mutunga's Constitution-making from the Middle: Civil Society and Transition Politics in Kenya, 1992-1997, comprehensively charted Kenya's economic and social-cultural path towards transformative development.

After the 2007/8 electoral violence, Kofi Annan's mediation team also came up with Agenda 4 encompassing the necessary socio-economic measures needed to rescue Kenyans from poverty.

Every time there is a severe socio-economic tragedy in Kenya, the political class leads the country away from addressing the root causes of such catastrophe. Instead, the socio-economic cataclysm is characterised as a political (and especially electoral) impasse requiring merely a political solution. We end up getting bogged down into how power will be shared among competing political factions. This is why we have always got it all wrong. Political parties serve us with a undigestable manifesto menu.

Let me nevertheless address the 2022 electoral predicament. Some Azimio-One Kenya leaders concede that even if the president won, the election was a draw: 7,176,141 against 6,942,930 votes for William Samoei Ruto and Raila Odinga. They, therefore, argue that each of the candidates commands half the country's following and allegiance that must be represented in government and hence the inevitability of a handshake regime. However, it is a fact that 7,907,413 registered voters did not vote and a huge population of youth and others over 18 and diaspora residents did not register to vote.

Why is it that Kenya's post-2002 elections don't produce a clear presidential winner? Instead of mobilising the citizen voter on ideological lines, the political class builds ethnic coalitions. They prefer to "eat" their tribes.

Usually, these musical chair shifting coalitions of, therefore, the same faces - what Lee Njiru in his book Presidents' Pressman: A Memoir calls "Political Cousins" - tend to numerically have equal strength, hence hung presidential elections.

All major politicians in Kenya since 1963 have worked together through pre-election handshakes whether it is within KANU, National Rainbow Coalition (NARC), Party of National Unity (PNU), Coalition for Reforms and Democracy (CORD), National Super Alliance (NASA), Jubilee Alliance, Jubilee Party, Azimio-One Kenya Coalition and United Democratic Alliance (UDA)-Kenya Kwanza Alliance (KKA). They essentially differ about who should be the State House tenant each electoral season.

The history of Kenyan style handshakes is as old as independent Kenya when KANU, Kenya African Democratic Union (KADU) and Africa People's Party (APP) merged to became KANU. Jomo Kenyatta shook hands with Moi, Ngala, Muliro, Ngei and others. (Those who knew Jomo confirmed he had a firm grip). The Mau Mau leadership was sidelined due to its radical stance. Soon, Jaramogi Odinga - that erstwhile doyen of Kenya's progressive politics - was ejected from the handshake. His socialist credentials made him suspect.

In 1998, to further defuse radical politics after the Inter-Parties Parliamentary Group (IPPG) initiative, President Moi co-opted Raila Odinga of The National Development Party (NDP) into KANU as Secretary General and government minister of Energy. Moi's minority electoral triumph in 1997 was given fresh political blood by Raila's co-operation, partnership and eventual merger with KANU. Later, vintage Raila was to quip that the tractor (his party symbol) had strategically penetrated the belly of the Jogoo (cock) (KANU's symbol) and the rest became history.

After the 2002 failed constitutional referendum and the sacking of the Liberal Democratic Party (LDP)/Rainbow Coalition ministers, Kibaki orchestrated a handshake with KANU, Forum for the Restoration of Democracy (FORD)-People, etc. This strengthened his hemorrhaging government.

After the post-election violence of 2007/8, Kibaki was forced to enter into yet another handshake with Raila through the Grand Coalition Government, hence the Nusu Mkate ( Half Loaf government). A tumultuous marriage was consummated.

The Kibaki-Raila 2008 handshake was principally executed through constitutional and legal changes making Raila the second Prime Minister of Kenya. He had negotiated a share of government including the deputy prime minister position which he handed to Musalia Mudavadi. Kibaki gave his slot to Uhuru Kenyatta who also doubled as minister for Finance.

In March 2018, Uhuru and Raila crafted another handshake. Previously, the political maverick of yesteryears had had himself sworn as the peoples' president. Raila became a power to reckon with as deputy president Ruto was incrementally sidelined. Although this time around Raila declined accommodation into government, he became an extremely powerful supremo in Uhuru's government. He could routinely call shots and influence development initiatives.

Unfortunately, the Kenyan public associated Raila with the economic and governance problems of the final days of Uhuru administration, while Ruto adroitly distanced himself from such government failure. This was how Ruto strategically "stole" the Hustler-Wanjiku from Raila whom he had christened political dynasty. Arguably, the handshake introduced political stability but diluted Raila's historical clout. In one sense, now through the Maandamano, Raila is working hard to reclaim the down-trodden from the Chief Hustler.

The million question is this: is Raila seeking another handshake? Will the religious and international sectors force the president to concede a handshake so as to restore sanity to the country? If this was to happen, would the common man and woman benefit?

BBI's solution to a hung presidential election was the introduction of both an official opposition as well as the positions of prime minister, two deputy prime ministers and assistant minister (the equivalent of CAS). Those who opposed the BBI stated that the creation of a bloated government would divert resources to the political class instead of prioritising delivery of citizens' services.

If BBI constitutional proposals had passed, then ethnic coalition building by the political elite would have been made easy. But we must remember some of the BBI proposals were derived from the initial Bomas Draft. According to Mutunga, the ethnic coalitions flowing from handshakes create "a multiparty dictatorship" which snugly accommodates the political class, but torpedos the broad interests of the masses.

From the president's perspective, he proposed that constitutional, legislative and administrative changes could strengthen the office of the opposition leader to make it efficacious in holding government accountable.

Before I conclude, let us take a detour and address the thorny issue of establishment of the new IEBC.

As part of the 1997 IPPG reforms, the opposition was granted leeway to nominate members of the Electoral Commission on the basis of parliamentary strength. The ruling KANU ceased to be the only party which decided on membership of the Electoral Commission. Building on this precedent, the formation of the IEBC could be done by both the government and opposition and the civil/religious societies. Even the private sector should pitch in. The IEBC must, like Caesar's wife, be beyond reproach. It must be truly independent. Can the country take a step back and ponder about this weighty issue?

At this critical juncture of our history, Kenya needs a genuine national dialogue, not just a dialogue of the political class mediated by the leaderships of the faith sector and international community.

Such dialogue must include all key sectors of the Kenyan society, that is government and opposition, civil society, faith sector, non-elected political actors, private sector, representatives of youth, women, persons with disability and other marginalised sectors.

The national dialogue must encompass the grassroots communities and thus be held from the ward to national levels. Ward forums could mobilise input from the village level. Comprehensive civic education must accompany the national dialogue.

Pre-national dialogue activities would focus on who will initiate the dialogue; its leadership structure; the agenda; administration of the dialogue; the dialogue process; and enforcement of national dialogue resolutions.

Several broad areas of national discussion could be how to: urgently reduce the cost of living; ensure elections cease to destabilise the country; tame corruption, wastage and negative ethnicity; re-engineer the county's leadership in keeping with Chapter 6 of the Constitution; fully implement the 2010 Constitution; fundamentally restructure the country's economy, state and society to ensure the vision of our national anthem is achieved, etc.

It is time for genuine dialogue, not monologues and chest thumbing. The Third Liberation or our socio-economic and cultural revolution cannot be delayed any longer.

Prof Kibwana is a constitutional lawyer and former governor, Makueni County

Utilities

Azimio's grievances

- High cost of living fueled by rising prices of food, electricity, fuel and other basic commodities;

- Stolen 2022 presidential elections; Opening of the Server; and Partisan recruitment of the Independent Electoral and Boundaries Commission (IEBC).

- Recruitment of 50 Chief Administrative Secretaries (CAS); corruption;

- Ethicized recruitment into government and the public service; state capture;

- Runaway insecurity especially in the North Rift; subjugation of the legislature and the judiciary by the executive;

Past handshakes

- Jomo Kenyatta and KADU leaders Moi, Ngala, Muliro, Ngei and others, 1964

- President Daniel Moi and Raila Odinga in 1998

- President Kibaki with KANU and Ford People in 2005