Firoze Manji

A few days after the elections held in Kenya on 8 August 2017, the Independent Electoral and Boundaries Commission (IEBC) announced that the incumbent president, Uhuru Kenyatta, son of Jomo Kenyatta, the first president of Kenya, had won by a margin of 9% against his main challenger, Raila Odinga, son of Oginga Odinga, former vice-president and nationalist opponent of Jomo.


The results were challenged by Odinga in Kenya’s Supreme Court and, on 18 August, the Supreme Court announced, by a majority of 4-2, its decision that the elections were to be voided. The international media and many across the world were aghast, but why were they surprised? Is it because across the continent the judiciary is not expected to be independent, nor to have the courage to make decisions that are against the incumbent despot? There is little doubt that the announcement of the decision took great courage.


But the fact is that there has been a tradition of stolen elections over the last ten years in Kenya, a tradition that has made the thieves increasingly complacent about the ease with which this can be done and its consequences managed. The final report of the majority judges, just published on 21 September, comprises a damning catalogue of incompetence and ineptness on the part of the IEBC and Kenyatta’s entourage: the way they organised the attempted theft, as well as their disregard for orders of the court to make available computers and documentation that allegedly proved that there was no fraud involved. There was evidence of wide-scale tampering, missing returns, returning officers replaced in some places, press told not to report on the results, and so on. So confident was the incumbent regime that they would get away with it, that they made little effort to hide what they had done. The fact that the IEBC announced the election results before all the ballots had been counted is but one example of their arrogance. Although the torture and killing of Chris Masando, the head IT specialist at the IEBC, just before the elections were not addressed by the Supreme Court, the culture of fear created by that outrage has not gone away.


Faced with such devastating evidence combined with what appears to have been poor representation on the part of the respondents, it should not be surprising that the majority of the judges of the Supreme Court decided to uphold the complaint made by Odinga.


But to fully understand the consequences of this decision, we need to understand how the tradition of electoral theft has developed in Kenya.


In 2007, the results of the presidential elections had just started to come in. By all accounts, it was a close run between the then president, Mwai Kibaki, and Raila Odinga. Indeed, as many of us watched the first results, we learned of exit polls that suggested that Odinga might win. Suddenly, before the final result, the police and security forces surrounded the Kenyatta International Conference Centre, the central election coordination point, and expelled all observers and members of the media. The websites, including those of the media, that were providing regular updates on the election results, suddenly stopped reporting. There was concern across the country. Late that night, it turned out, a private swearing-in ceremony had been carried out at the president’s residence, State House, in which Mwai Kibaki was sworn in as the president by compliant members of the judiciary, even before the final results had come through. This was effectively a civilian coup d’état.


The reaction of the public was understandable. There was outrage and anger at the stolen election, which had been, until then, one of the most peaceful elections (even though there were some incident of abuse in a few places). People took to the streets to express their anger in spontaneous demonstrations. The response of the state was to release the Government Service Unit (GSU), a para-military force answerable exclusively to the president, as well as the police who went on a rampage against civilians on the streets and against shack-dwellers in the many shack settlements around the city.


Many of these attacks were recorded and complaints were made, but with no result. In a country where it had become the norm for the police to carry out extrajudicial killings with impunity, no one was surprised. But the next wave of violence that was released against citizens, especially those who were known to have voted against Kibaki, as well as those who occupied a territory in the Rift Valley which the ruling Mount Kenya elite had long craved, came from armed militia who had been well prepared and instructed. The most horrendous series of killings, burnings, rapes, slaughter and carnage was perpetuated, resulting in 1000 deaths, and more than half a million people condemned to being permanently internally displaced with no right of return to their homes. It is said that supporters of Odinga were also engaged in militias, but clear evidence has been difficult to find. These terrible acts of violence by armed militia, the police and the GSU were proclaimed as “post-election violence” and represented by the local and international media as stemming from “tribalism.”


The outcome of these events was to bring Kofi Annan to Kenya to oversee the establishment of a ‘Government of National Unity’ between the coup leader, Mwai Kibaki, and Raila Odinga, the former as President and latter as prime minister. Those responsible for the carnage were never arrested, charged or tried. The militia were never disarmed. And those who lost their land and possessions were effectively told, as John Kerry was to tell Odinga ten years later, to “get over it.” What was established, thus, was a government of national impunity, ardently supported by Kenya’s civil society organisations. “We didn’t have a choice. It was the only way to guarantee peace,” I was told by the head of a leading human rights organisation. What peace the internally displaced people, those women raped and those families who lost loved ones had as a result is not entirely clear. No protest was made by civil society against the growing culture of impunity or the failure to disarm the militias.


Then came the 2013 elections at which Uhuru Kenyatta and his loyal ally, William Ruto, stood for elections, two individuals who had allegedly been implicated in crimes against humanity and who were to be brought before the International Criminal Court. They succeeded at presenting the threat of prosecution by the ICC as being the attempt of imperialism to interfere in the election, and gained popularity by casting themselves as resistors against empire. The proposed prosecution collapsed when witnesses disappeared, died under mysterious circumstance or refused to testify.


As the elections proceeded, it became clear that there had been, in many people’s eyes, widespread fraud to ensure Kenyatta’s victory. Once again, as in 2017, the IEBC was found to have been engaged in corrupt deals and manipulation of the electronic data. Odinga challenged the results at the Supreme Court, headed at that time by long-term human rights defender and former political prisoner, Willy Mutunga. But Odinga failed to provide adequate evidence that would have allowed the court to uphold his appeal. To the chagrin of many in civil society, the results of the election were upheld.


And so we come to 2017, where this time the Odinga camp was meticulous in preparing water-tight evidence about the scale of fraud that had been carried out by the IEBC and the Kenyatta camp. But they were also aided by what appears to have been a surprising degree of complacency amongst the incumbents that they would get away with it once again. Not only was there overwhelming evidence of an attempt to steal the elections, but also confirmation that they weren’t even competent thieves!


Kenyatta’s televised response to the announcement by the Supreme Court was to say that while he accepted the decision of the court, it was a “coup by four people in court,” by judges who were “wakora” (crooks). He claimed that the judgment showed that “the voice of the people matters no more.” His announcements have become more and more belligerent, fostering a mood amongst his followers that could result in violence. In addition, the judges have reportedly received death threats.


That is terrifying. We have already experienced, in 2007, what happens when armed thugs are released to deal with those that challenge the outcome of the presidential elections. The spread of hate radio, Facebook announcements and hate videos on the internet is frighteningly reminiscent of the hateful agitation of Radio Mille Collins in Rwanda before the genocide. Kenyatta’s agitation and threats could result in the outbreak of civil war, should the election results not go his way.


But what is the likelihood of the elections being run fairly, or indeed at all? The company that is responsible for the technology used in the elections claims that there is no way that the infrastructure can be put in place before the end of October, well beyond the 90-day rule that is required by the Constitution. The critical issue is that those responsible for the fraudulent election results at the IEBC remain in place, despite calls for their resignation. There is evidence that a certain amount of intimidation of local government officials by Kenyatta’s people took place, and indications that this is still going on. Some have claimed that Kenyatta has mobilised volunteers to pay or press people to vote for him. So the outcome is uncertain.


How do we account for the fact that John Kerry for the US, as well as the European Union and African Union observers claimed that the elections were fair? As the Supreme Court points out, the observers only monitored the process of citizens casting their vote at the ballot box, and completely ignored what happened thereafter. There were numerous examples of forgeries, lost data, corrupted data and imaginary returns that these observers decided not to focus on, despite the evidence of the 2013 elections that precisely these areas were used to defraud the country of fair elections.


But there was another reason for the enthusiastic, if somewhat premature, endorsement of Kenyatta and his regime. This is the regime that has enthusiastically collaborated with the transnational corporations and with international financial institutions in ardently privatising of healthcare, education, water, transport and communications and anything else that allows for a fast buck to be made. This is the regime that allows — nay, encourages — these corporations to avoid taxes, extract natural resources, repatriate profits, grab land for industrial agriculture and GMOs, paying paltry wages to the few that are employed. This is the regime that has overseen the impoverishment of millions. According to the Society for International Development, some 45 per cent of the population lives on less that US$1 per day. As Jason Hickel has pointed out, in reality, those earning less than US$5 a day are amongst the most impoverished — which means that some 85 per cent of the country are impoverished. Meanwhile, value-added production has been in decline for decades, but the scale of wealth of the minority is unbelievably high. Every month, new office buildings appear in Nairobi, but where is that wealth coming from? True, some of it will be from the presence of UN organisations based in Nairobi. But it is hard not to conclude that money laundering is the source of much of the wealth.


What if Raila wins? We should not delude ourselves that Odinga represents a radical alternative to Kenyatta from the point of view of the policies offered by his alliance of parties, the National Super Alliance. We need to remember that Odinga served as a minister in the Moi government as well as prime minister in the government of national impunity. That said, however, there is a mood amongst the young and the dispossessed for change, and Odinga’s election rhetoric appeals to many. Capital, however, does not feel threatened by Odinga’s politics. It’s fear is that he may not be able to control his political base, a base that wants to see real change.


Raila winning? That is of course speculation. But we should not discount the possibility that such a victory would be met with violence from armed militia at the encouragement and behest of the Mount Kenya Mafia who are the real power brokers in Kenya. And they will not give up their access to the state machinery that has allowed them to accumulate at an unprecedented scale.

Main Photo courtesy of Pixabay.

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