How the Raila-Ruto talks can prevent electoral, governance and economic crisis

Let us begin by asking: What are the chances of the bi-partisan palaver between Kenya Kwanza and Azimio coalitions succeeding? What end result could help solve Kenya’s endemic electoral, governance and socio-economic crises? Which other sectors could add value to this national parley?

Curiously it took maandamano (demonstrations), loss of lives of predominantly young persons, destruction of property, businesses and livelihoods, for the two parties to defer to the logic of dialogue.

Like happened after the 2007/2008 electorally instigated violence, an eminent person, this time former Nigerian president Olusegun Obasanjo, arrived in Nairobi to bring the principal disputants face to face.

Subsequently the lot fell on the parties to develop a dialogue overall framework and agenda including anchoring the talks within parliamentary process.

From word go, the two thorny issues have been inclusion of both secular civil society and the faith sector in the dialogue process and agreeing on the talks agenda.

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Even before the street demonstrations, president Ruto had already written to the speaker of the national assembly seeking the august house addresses certain issues. The Kenya Kwanza Alliance side seems to largely have adopted those as the bi-partisan consultation agenda.

The KKA menu then consists of: implementation of two – thirds gender rule; reconstitution of the Independent Electoral and Boundaries Commission (IEBC); constituency development, senate oversight and national government action affirmative action funds; leader of official opposition and chief cabinet secretary positions and parliamentary oversight of the executive.

The Azimio agenda revolves around: cost of living; audit of the 2022 elections; IEBC reconstruction and reconstitution; delimitation of boundaries and related electoral matters; political parties independence and autonomy; and outstanding constitutional matters concerning inclusivity in national affairs, governance issues, adequate checks and balances.

On July 21 at Ufungamano House, a faith sector led meeting inclusive of secular civil society representatives recommended: “The dialogue we recommend should be based on a clearly defined framework that will create a platform for Kenyans to discuss the challenges facing their lives and find amicable solutions.  The framework should provide for engagement of all stakeholders, and should be buttressed by religious institutions for sustainability.  There must be a firm commitment that the outcomes of the process will be implemented to avoid a repeat of what has happened in the past.”

The above conclave of faith and secular civil society itemized the following for discussion: constitutional and legal reforms; land reforms; addressing poverty, inequality and regional imbalances; addressing unemployment, particularly among the youth; addressing transparency, accountability and countering impunity; enabling constitutional commissions and independent agencies to deliver their mandates.

According to the Ufungamano Assembly, the current bi-partisan process should expedite the agenda of facilitating the reconstitution of IEBC, and then pave way for an independent and inclusive  national dialogue process on the Kenya We Want.

An emergent civil society convocation, the Kenya Bora Tuitakayo Assemblies (KBTA) have also advocated for an urgent national dialogue to tackle the current national quandry.

This group has also highlighted the above issues: blow by blow review of implementation of the constitution; state capture; holistic electoral reform; police reforms; execution of all outstanding commission enquiry reports; converting our ethnicities into a nation; overall youth empowerment; and engendering the country’s socio-economic liberation.

Let truth be told: we are in dire straits because historically our leadership never implements key decisions subsequent epochal talks.  Once the storms subside, we decide the underlying problems have been sorted.

Kenya’s crises since independence can, by and large, be linked to political problems.  Examples are the aftermath of the assassinations of Tom Mboya in 1969 (including the Kisumu massacre) and Josiah M. Kariuki (1975); the 1982 attempted coup d’ etat; citizens’ push for resumption of multi-partyism (1990) and new constitution (1997); state manufactured ethnic clashes during 1992 and 1997 electoral seasons; massive election-based violence following the 2007/2008 elections; widespread demonstrations following 2017 and 2023 elections.  Some terrorist episodes have also caused excruciating crises (1975, 1980, 1998, 2013, 2015 and 2019).

Initially, Azimio had dropped cost of living as a dialogue agenda item, but was prevailed upon by citizens to revive it.  Historically state responsibility for demonstrators’ deaths as well as loss of businesses and citizen livelihoods are glibly factored as discussion items.

Otiende: Why bipartisan talks collapsed

National crises find fertile ground in Africa where there is state capture by a section of the political class and their pet private sector accomplices.  In 2022, Raila Odinga accused president Ruto of orchestrating state capture in Kenya (see Moses Kinyanjui, Citizen Digital, Nov. 24, 2022).  While acknowledging the reality of state capture in Kenya, the Kenya Kwanza Plan: The Bottom-Up Economic Transformation Agenda 2022-2027 promised as antidote: “Establishing, within 30 days, a quasi-judicial public inquiry to establish the extent of cronyism and state capture in the nation and to make recommendations (p.61)”.

Therefore, both Kenya Kwanza and Azimio seem to agree the country is beset with major political and social-economic crises requiring cure, and not just the political crisis birthed by the 2022 elections and 2023 demonstrations.

First, it is crucial for a nation, as a matter of national consensus, to acknowledge it is in crisis. Denial means the first step to solving the conundrum is avoided.

Then the country and its leaders must accept responsibility to take remedial action. “Self-pity, blaming others or assuming the role of victim” are diversionary.

Honest self-appraisal is essential as a basis of engaging the elements of the crisis.

As the crisis is addressed, the nation will need to determine the policies and institutions requiring change, and those to remain unchanged.

The question of whether agreed changes should be introduced simultaneously or separately and at different times is crucial.

Each county can examine their past national crises and how they dealt with failure then and its relevance for addressing a current crisis.

A nation’s core values must be used as a resource in solving a crisis.

Leaders involved must be genuinely committed to resolving the crisis; they should down play their egos.

Further, achievement of reconciliation for all stakeholders adversely affected by the crisis is mandatory.

Support by eminent persons, friendly countries, and regional and international bodies is welcome in the resolution of a national crisis.

A clear measure of seriousness in solving a national crisis is the realization that all sectors of Kenyan society must be involved.  The current dialogue framework only engages political party coalitions and their technical nominees.

The recent parliamentary motion establishes a ‘National Dialogue Committee’ which excludes representatives of the faith sector and secular civil society.  Article 1 of the constitution grants sovereign power to the people of Kenya with elected and other state and public offices enjoying delegated power.

The parliamentary motion cedes to the majority and minority parties in parliament the mandate “to facilitate dialogue and consensus building and recommend appropriate constitutional, legal and policy reforms on issues of concern to the people of Kenya…”

Moreover, the National Dialogue Committee “may (not shall) invite, engage with and consider (not implement) submissions from the public…”

Any debate which may lead to constitutional changes cannot be the province of parliament alone.  The potential changes envisaged through the work of the National Dialogue Committee require nationwide public participation as the Supreme Court decided in the 2022 Building Bridges Initiative (BBI) case.

Moreover, a framework for the explication of a major national crisis cannot be created through a mere motion of parliament which lacks legislative teeth like an act of parliament.  Partly the BBI failed because it was established through Kenya Gazette Notices.

Critically significant time has been squandered by both parties (even without the involvement of the Ufungamano Group) in regard to formulating the agenda.

An agenda can be adopted through consensus or by all items being accepted for debate.  The concerns of the faith and secular civil society must also be placed on the table if the dialogue is to be truly national.  We must embrace a multi-sectoral dialogue, instead of bi-partisan talks unless bi-partisan means political class on one side and faith and secular civil society on the other.

Before Parliament proposes another supplement of constitutional changes, the country needs to hold a dialogue on the extent to which the 2010 constitution has been implemented in the areas, among others: of equal citizenship, human rights protection including economic and social cultural rights; chapter 6 on leadership and integrity; adherence of Article 1 and Article 10 national values and principles of governance; land and environmental rights; devolution etc.  The political class should not be allowed to pick and choose which constitutional provisions they will sparingly implement or allow the judiciary to enforce, and then introduce provisions which enable them to share state largesse.

Currently, Azimio and Kenya Kwanza agree on the agenda of reconstitution of the IEBC.  Currently a panel was established under the IEBC Act. Individuals did apply but interviews were put on hold.  The recruitment timeframe provided for in First Schedule of the IEBC Act (as amended) has lapsed.

The existing IEBC recruitment panel would have to be reconstituted, presumably after the First Schedule of the Act is reviewed.  Those who already applied may be automatically deemed to be applicants in a new recruitment drive which opens space for other applicants.  Otherwise, some existing applicants could go to court to enforce their rights under an earlier existing law.  The fate of the existing IEBC selection panel members would also need attention.

The elephant in the room may be how to recruit a panel which is truly independent of the political class so that the IEBC it brings on board is itself a neutral referee.  Elections in Kenya will begin to be free, fair and transparent when the IEBC is genuinely independent of undue influence from the political class.

In 1997, the IPPG reforms granted Kanu and the opposition parties the right to each nominate members of the Electoral Commission of Kenya (ECK) thereby giving the opposition some comfort in terms of fairness in electoral administration.

Electoral justice will never prevail in Kenya before there are in place comprehensive electoral reforms to ensure: elections are not bought by the moneyed; political parties are democratic institutions not owned by regional kingpins; Kenyan politics are de-tribalized; etc.

It would appear Azimio have grudgingly conceded that William Samoei Ruto was validly declared president, the office handed over to him by Azimio coalition leader and his marginal victory confirmed by the Supreme Court.

Due the tribal (dis) organization of Kenyan politics, coalitions built on ethnic lines tend to produce more or less equal number of votes between the two main competitors.

An opportunity to audit the 2022 election results existed before the country’s election courts.  Azimio did use the Supreme Court for that purpose. One year later the value of auditing electoral results, presumably at all levels, may be to identify any emerging issues for future electoral reforms.  A National Dialogue Committee may not be the forum to alter electoral results.

Inclusivity in national affairs as suggested by Azimio may be a euphemism for opening the dialogue for constitutional and legal change to introduce the parliamentary system of government or a hybrid presidential and parliamentary system.  This would be a BBI revisit.  To some extent the Kenya Kwanza side’s agenda items on introduction of office of leader of opposition and the legalization of prime (or chief) cabinet secretary is in tandem with Azimio’s demand on this score.

Strictly speaking in a presidential system, the minority side checks government through a parliamentary committee system as previously suggested by president Ruto.

However, Azimio, with KKA’s concurrence, would be comfortable with the establishment of the office of the leader of opposition.  Azimio would probably prefer to have a well-funded office with the possibility of shadow ministers and experts under each shadow ministry.

Although both sides are opposed to negotiations leading to hand-shake government, a full-fledged office of the leader of opposition with a well-funded shadow government would within a presidential system of government translate into another hand-shake, nusu-mkate government.

Azimio has vigorously protested the poaching of its members by the government side.  Strictly speaking if a parliamentarian switches sides, they should resign and be so declared by the speakers and hence face re-election.  This matter concerns political morality, the speakers acting as required by the law and citizens insisting that the parliamentarian who has decamped is no longer their representative.  Citizen court action is also a welcome remedy.

However, politicians who opportunistically cross over once elected argue they have a democratic right to join any party or coalition of their choice in their individual capacity or when prevailed upon by their electorate.

The Constituency Development Fund (CDF) was declared unconstitutional by the court of appeal but gave the national government a period of 12 months to remedy the defect.  In 2022 the apex Supreme Court declared CDF illegal since parliamentarians should not undertake executive role of development implementation as this contradicts their oversight mandate.  Although the national government sought to transform CDF into National Government-CDF, the hand of the legislators is still evident in the so-called NG-CDF. Constitutionally therefore it will not be possible to allocate money to be utilized for development projects by members of parliament. 

Such money can be expended by the national government through its officials at county level or by the county governments upon transfer to them of the education and grassroots level security functions currently undertaken by MPS.

Article 81 (b) of the constitution provides: “The electoral system shall comply with the following principles – not more than two thirds of the members of elective public bodies shall be of the same gender; …”  Article 27 (8) also provides: “The state shall take legislative and other measures to implement the principle that not more than two – thirds of the members of elective or appointive bodies shall be of the same gender.”

Article 97 and 98 of the constitution provide for membership of the national assembly and senate without directly recognizing and incorporating therein the two thirds gender rule.  Through a nomination or special elect mechanism, this constitutional imperative was operationalized for county assemblies via Article 177.

So far courts seem to have interpreted the constitution to favour supremacy of Article 97 and 98 over Article 27 (8) and 81 (b).

Article 27 (6) of the constitution permits the state to pursue “legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.”

In my view Parliament can pass ordinary legislation to replicate the formula for gender electoral equity provided in Article 177 as a cure to the two third gender - discrimination in parliament.  Would this be deemed to be an Article 257 popular initiative constitutional amendment requiring a referendum? Again, I submit no. A constitution cannot contradict itself.

Enforcing the two-third gender rule through ordinary legislation would still leave current membership of the national assembly and senate intact as provided by Articles 97 and 98 and thus also achieve the provisions of Article 27 (6) and (8) and 81 (b).

Beyond the high cost of living issue, a national conversation by all stakeholders must address the concerns of the faith and secular civic society as well as the political class have put on the table while prioritizing the necessary steps to assure corruption free leadership and the quest for the country’s socio-economic liberation leading to 360 degrees transformation.

We must cease engaging in minor talks among only the politicians when monumental problems attack the nation.

Even before launching a genuine national palaver, we need to revisit the outcomes of previous conversations and implement them.  We have tended to pick and choose only the short-term political solutions from our debates, and bypassed the measures that can bring about fundamental change and stability in our country.  For example, the economic content of the IPPG and BOMAS, as well as Koffi Annan Agenda 4 and even the NCA/NCEC socio-economic blueprints continue to gather dust in some shelves.  So too do the Akiwumi, Ndungu, Truth Justice and Reconciliation Commission (TJRC) reports etc.

Kenya and her people need to acknowledge they are in a crisis deserving the patriotic mobilisation of national dialogue and consensus building.  Together, country and the people must take responsibility for necessary remedial action.  Chest thumbing is counter-productive.  Honest self-appraisal is a must.  The people and the leaders must rise to the occasion.

Prof Kibwana is a constitutional lawyer and the founding governor of Makueni County