|Kenyans rally for the new constitution (2010) that made this moment possible|
In Kenya’s last presidential election, President Obama’s State Department decided to assert itself by warning Kenyans of the consequences of electing two men under investigation by the International Criminal Court for allegedly fomenting violence during the country’s disputed 2007 election. Britain and other European countries joined in issuing these unveiled criticisms of Uhuru Kenyatta and William Ruto, the two men on the ticket for the country’s top job.
Predictably, the intervention by the U.S. and Britain backfired spectacularly. The spectacularly wealthy Kenyatta, son of the country’s first president, lashed back at his critics, asking Kenyans whether they were going to let foreigners tell them how to vote. He wondered aloud why the ICC only pursued African leaders (a fair enough question, though not in itself an argument in his defense). And he campaigned claiming to be a nationalist under assault from the very kind of neo-colonial interests that his father allowed in the door after independence.
The disappearance of witnesses led to the ICC dropping the case against Kenyatta after he won the presidential election, and he governed as an industry-, infrastructure-, and business-friendly technocrat, saving his populism for the campaign trail. He has made skillful use of social media, even while seeking to restrict the ability of the national media to shed light on some of the goings on in his government.
And he was widely believed to have a strong edge in the 2017 election, having built a strong political coalition, hitched to the machine of his running mate, Ruto, whose Rift Valley machinations have drawn comparisons to the powerhouse Moi family, the patriarch of which served as Kenya’s president-dictator from 1978 until 2002.
In 2017, international governments and observers believed they had learned their lesson. Kenyatta had proven himself more than capable of leading a government with which they could do business, Barack Obama paid a nostalgia filled visit to the country under a presidency his administration had sworn would see Kenya isolated, and many believed that Kenyatta would not need to manipulate the election in order to win a clean victory. The culture of impunity fostered by his escape from the ICC was a thing of the distant past.
And so observers brushed aside the under-substantiated complaints from opposition leader Raila Odinga’s NASA party about irregularities, and declared the election free and fair.
Three weeks later, Chief Justice David Maraga, presiding over an emboldened judiciary built by Willy Mutunga and others, announced the Supreme Court’s decision to annul the results of the election, citing unspecified irregularities and ordering a new contest within two months.
Odinga supporters greeted the news ecstatically, believing that the cloud it set over the head of “Uhuruto” and the Jubilee Alliance will give Odinga a better chance at the presidency that has so far been denied him by means fair and foul. He is an emotive populist to Kenyatta’s slick technocrat, and upon hearing the court’s decision, thundered that if on election day Kenyans had “crossed River Jordan and went until the great wall of Jericho,” then in two months’ time “we will have made it to Jerusalem.”
But other Kenyans are taking pride in the court’s decision because it marks the triumph of institutions above individuals. In 2010, the country’s citizens voted to establish a new constitution, which has become a kind of touchstone for the country’s soul ever since.
The new constitution was designed to replace the governmental hardware and infrastructure inherited from the colonial state in the 1960s, which had enabled decades of dictatorship, abuse, and uneven development with more responsive, credible, and democratic institutions. It strengthened the judiciary. And it devolved significant powers to counties and governors in an effort to bring government and the development the state can foster closer to Kenyan citizens.
I was in Kenya during the campaign for and referendum on the new constitution, and it embodied the same kind of optimism and excitement that had rippled through the country years earlier with the return of democratic politics.
This morning, Chief Justice Maraga reminded Kenyans, that “the greatness of a nation lies in its fidelity to its constitution and strict adherence to the rule of law and above all the fear of God,” collapsing the country’s considerable religiosity with the civic reverence for the document representing the second coming of independence.
The Daily Nation newspaper declared that the court’s decision was “the single most outstanding explication of the supremacy of the rule of law and maturation of our democracy,” demonstrating “independence of the Judiciary and signaled the end of the era of impunity that has painfully assailed this country for far too long.”
To his credit, Kenyatta accepted the ruling, but promptly began attacking the court, wondering why “six people have deiced that they will go against the will of the people,” and accusing the judges of having been “paid by foreigners and other fools,” while reminding Maraga that he was “dealing with the serving president.”
It is a style of politics that has worked for Kenyatta and other incumbents in the past. But those shadowy outsiders will be more difficult to identify, particularly because they signed off on Kenyatta’s victory. And Kenya’s judiciary, a source of national pride, will make for a trickier target than inept American and British diplomats who failed to grasp the basic elements of “geopolitics 101.”
Kenyatta’s greater advantages might very well be the resources of his party and the impressive power of incumbency. Much will depend on the court’s full articulation of the basis for its annulment of the earlier results, and the extent to which the alleged improprieties can be addressed in the coming sixty days. And it will be fascinating to see whether the opinion polls that will soon again become a staple of reporting and analysis will reflect election fatigue and a desire to abandon or punish Odinga, a revitalization of his base (into which Kenyatta and Ruto made some inroads), or any signs that the independence of Kenya’s judiciary might provoke movement and re-thinking within the component parts of the two main alliances’ constituencies, something tentatively forecast in the immediate reactions of one keen-eyed analyst.
Whatever happens, this is an event of monumental significance in a country in which for some of its national community, the strong always seemed to prevail and impunity seemed to define relations between the people and their government. Odinga’s father wrote a famous book, Not Yet Uhuru, which highlighted impediments to full independence (uhuru). The insertion of a single comma gives a new lease on life to the phrase.