Kenya’s Court of Appeal last week handed the Uhuru Kenyatta government its second legal defeat, rejecting its move to make far-reaching changes to the constitution.
The court upheld a High Court decision in May that declared the proposed reforms, born out of the Building Bridges Initiative (BBI), unconstitutional.
However, President Uhuru, and his partner in “crime”, former Prime Minister and Orange Democratic Movement (ODM) leader Raila Odinga, with whom he did the “handshake” rapprochement of March 2018 that gave birth to the BBI, may have lost a legal fight, but not the political argument.
One of the primary issues vexing Kenyan politics is the deep marginalisation that sections of the country feel from being locked out of the apex of power by a failed majoritarian winner-takes-all politics remains unsolved and raw as ever.
Uhuru has got many things wrong. Among those he has got right is his view that a political and executive order that allows the broader spectrum of Kenya to be represented at the top (and not just monopolised by two regions) is what is needed to keep the country together. But if his body is willing, he seems not to have a path to deliver it, and there is a significant portion of the country that feels strongly that the vehicle he has chosen, the constitution amendment and leadership structure with more chiefs than Indians, is the worst possible one.
So, as the 2022 decisive vote draws ever closer, the question is whether Kenya can survive another winner-takes-all election.
One reason to be doubtful is that the reality of patriotism and citizenship in Kenya seems to have changed over the last 18 years. We have banged on about it before, and we will again, The most memorable point was in March 2016 when in an article in Daily Nation, economist provocateur David Ndii wrote his famous “Kenya is a cruel marriage, it’s time we talk divorce” article. Ndii argued that Kenya was a failed project, and should be hived off into independent states that had a better chance of being more viable than the current setup.
Legions were up in arms, demanding Ndii’s scalp, and arguing he should be at best locked away in a dark hole somewhere until his last days.
However, for all the emotion that article aroused, it didn’t come close in terms of volume, especially from younger Kenyans, than Ndii’s article earlier in the Daily Nation of January 2, 2016, entitled “What Magufuli presidency means for Uhuru’s reign”.
In it, Ndii offered that Kenya was being eaten to the ground through corruption, and unless it mended its rotten ways, Tanzania was on course to overtake it as the region’s largest economy in five years because of its political stability and relatively clean government.
That the argument that Tanzania’s economy would overtake Kenya’s soon, could hurt national pride more than the idea of a split of Kenya suggested something dramatic had happened; Kenya as an idea seemed to have become greater than Kenya as a physical national entity. If you are one of those futurist internationalists, though, it might be a good thing, representing a more evolved citizen – one who is loyal to greater values, and not lowly objects like lands, rivers, and boundaries.
The only risk is when it combines with something that’s profoundly democratic and is peculiarly Kenyan – at least in East Africa. Kenya has one of Africa’s most hyper –mobilised citizens, and who were not so mobilised by the state, party, media, church or mosque, or traditional chiefs. A part of it has happened through social media, where an unwieldy hotchpotch of activists, comedians, musicians, public intellectuals, and the thousands of the country’s politically disaffected, have nevertheless created a distinct anti-state ideology (or better philosophy). One of its planks is that the Kenyan state (and political class) is fundamentally predatory and corrupt, and they have emotionally seceded from it.
It is a brick wall into which the Uhuru presidency and his government have run into, and can’t seem to break through, for now.
In this potent mix, a reasonably fair election that, nevertheless, is seen not to reflect the face of Kenya, could be big trouble. A disputed election, as in 2007 and 2017, will be a major disaster. A brazenly stolen vote would be next-level catastrophe.
It doesn’t have to be. The BBI amendment was trying to solve a problem, to which there are possible political solutions. The People’s Democratic Party (PDP), which led post-Cold War democratic Nigeria from 1999 under Olusegun Obasanjo to 2015, when its leader Goodluck Jonathan lost to President Muhammadu Buhari, had a policy of rotating the presidency between candidates from the predominantly Christian south and the predominantly Muslim north. It helped to heal Kenya-like social and political fractures until the party floundered on the incompetence and corruption of its leadership.
Kenya also has a few County governors, who have built models of cohesive and inclusive governance that national politics could steal from. The Supreme Court merely sent everyone back to this starting line.