Breaking Kenya’s Impasse

Africa Policy Brief

No.1 January 2008

Chaos or Courts?
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Breaking Kenya’s Impasse: Chaos or Courts

Executive Summary & Recommendations

KENYA’S 2007 ELECTION HAS PRECIPITATED THE COUNTRY’S WORST CRISIS SINCE THE ABORTIVE AUGUST
1982 coup by the Air Force: 700 deaths, nearly 300,000 others displaced, an estimated 60 billion Kenya shillings
($850 million) and continuing instability which has undermined the country’s international image and rapidly
eroded donor confidence. Typically, international observers viewed Kenya through the prism of other failed states
in Africa, and proffered the obvious ‘liberal peace’ solution: peace talks leading to a power sharing deal between
the various ‘warlords’ or elites. As a result of this flawed diagnosis, Kenya has witnessed a parachuting of
international mediators (Desmond Tutu, John Kufor and Kofi Annan) to broker yet another peace deal in a troubled
continent. But the Kenyan crisis is not in the same league as the crises in other parts of Africa like Somalia or
Darfur--although it may get there if the right prescription is not provided as is happening now.

Kenya’s crisis is uniquely and squarely a crisis of democratic transformation typically experienced by countries—
even in mature democracies--facing a closely contested election! Despite the high level of post-election violence in
parts of the country, the crisis requires a democratic solution, not conflict resolution, not deals by ethnic elites.
Kenya’s Attorney General, Amos Wako, and the Chairman of the Electoral Commission, Samuel Kivuitu categoriclly
pointed to the judicial system as the natural route to resolve the country’s electoral dispute. The ‘liberal peace’
route can potentially cripple the country’s capacity to fall back to its institutions such as courts and other
arbitration institutions to deal with what are normal challenges of pluralist democracy.

What Kenya is witnessing is an election dispute like the one that engulfed America in 2000 when the Democratic
and Republican party candidates—George W Bush and Al-Gore-- disagreed on the process and results. While elders
like Jimmy Carter and James Baker stepped in to cool tempers on both sides, no one was crazy enough to
prescribe peace talks between George Bush and Al-Gore as a lasting prophylaxis for America’s democracy. All
agreed that America’s courts system was the way to go—and American courts had their day, and their say. Why
mediation and not courts for Kenya? The prescription of elite deals as solutioin to Kenya’s crisis unveils the
prevailing cultural biases inherent in relations between civilizations in the globalizing world. Conflicts in Africa are
Africa Policy Brief viewed as generically pre-modern, and ill-suited for modern solutions as in civilized nations. As such Africa has
No.1 January 2008 become a growth industry for peace mediations, which are typically set for conflicting nations or peoples presumed
not to be under common institutions.

Mediators have a role to reconcile local communities torn by violence and to calm and heal the nation. But what
Kenya urgently needs is a chance for its courts to pronounce themselves on the way forward. Certainly, chaos in
all its guises is never the way out, and should never be used as a subterfuge to reject the path civilized nations
take to deal with disputes arising from the democratic process.

The international community including the UN, the US, the EU African institutions and leaders should now
insist on the courts as the most credible and sustainable way of breaking the impasse in Kenya, and
endeavour to provide the needed support to ensure the impartiality and expediency of the courts in
dealing with the election dispute;

The Opposition Orange Democratic Movement should halt all its plans to go to the streets and use mass
action to redress the grievances arising from the election, but instead seek redress within the judicial
system of Kenya;

The government and the Party of National Unity should offer guarantees that the courts will deal with the
dispute within reasonable time—no more than three months. It might be necessary to call in judges from
other commonwealth countries to provide the necessary neutrality and restore the confidence of the
parties to the dispute in the courts;

The Government and the opposition should be prepared to abide by the final verdict of the courts: a
recount, a re-run, or a victory for either of the parties;

The government should firmly reassert the rule of law and deal once and for all with the evolving culture
of impunity relating to ethnic violence by arresting and bringing to book all perpetrators and inciters of
ethnic cleansing, including considering taking some of the most egregious cases like burning people arrive
to the International criminal court;

Parliament should set aside a post-violence reconstruction and rehabilitation programme and providing
funds to aid resettlement, reconstruction of rebuilding of destroyed homes and property;

Kenyans must re-commit themselves to the vision of a multi-ethnic vision based on civic rather than
ethnic citizenship, sanctity of law and public order, and the courts as the supreme arbiter in all disputes,
including election ones.
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Breaking Kenya’s Impasse: Chaos or Courts?

Introduction

The declaration of President Mwai Kibaki as the victor in Kenya’s closely contested 27 December 2007
election sparked an orgy of tribal-based violence which has threatened to rip Kenya apart and shattered
its image as an icon of peace and stability in a fragile continent. The brutal resurgence of ethnicity in
the calamitous election resulted in Kenya’s worst civil unrest since the 1 August 1982 abortive coup detat
by the Air Force. It has left some 700 people dead, some 300,000 others displaced and nearly Ksh60
billion [US$850 million] lost. More subtly, it has witnessed the most deadly assault on the vision of civic
citizenship that has so far driven Kenya’s 44-year old post-colonial nation-building project.

Mediators from South Africa’s Desmond Tutu to Ghana’s John Kufor and former UN Secretary General,
Kofi Annan, are trying their hands in breaking the impasse in Kenya. But efforts to pull Kenya back from
the brink must go beyond the skin-deep tenets of ‘liberal peace’ that seeks to merely broker deals
between warring factions and fractions of the political elite. Kenya must now go back to the drawing
board, boldly resuscitate the multi-ethnic vision based on the principles of civic citizenship, sanctity of
public order and supremacy of the courts as the only arbiter in all disputes.

Courts or Streets?

The immediate cause of Kenya’s impasse is the disputed presidential results of the 2007 elections.
Kalonzo Musyoka of the Orange Democratic Movement-Kenya (ODM-Kenya) endorsed the verdict of the
Electoral Commission that put Kibaki ahead with 4.58 million votes against 4.35 million of Raila Odinga of
the Orange Democratic Movement (ODM) and Musyoka’s 880,000 votes. However, Kenya teetered on
the brink of civil war as Raila and the ODM objected to the results, accusing the government of fraud,
and rejected the court option to resolve the dispute.
Africa Policy Brief
When announcing the results, the beleagured Chairman of Kenya’s Electoral Commission, Samuel
No.1 January 2008
Kivuitu, advised that the ODM’s objections were a matter for the courts. Raila, however, rebuffed the
idea of seeking redress in the courts, demanding Kibaki’s resignation and calling for ‘a million-strong’
campaign of civil unrest to overturn the results in a ‘civilian coup’ ala Ukraine and Philippines where civil
action swept official losers to power.

The ODM’s rejection of the court option opened Kenya to what Robert Cooper and others have rightly
described as ‘pre-modern chaos’ experienced in many parts of Africa like Somalia, Sierra Leone and
Liberia, and seen in the breakdown of the state in parts of the former Yugoslavia. For a country
described by the report of the Africa Peer Review Mechanism in 2005 as having developed a relatively
appreciable degree of institutionalization, the opposition’s refusal to take the court path and the
consequent threat of riots and chaos came through as the proverbial return of barbarism to haunt
Africa’s nascent civic nation and culture.

Rome was burning! Frustrated ODM supporters went on a rampage, burning shops and shacks in
Nairobi, Kisumu, Mombasa and re-settlement schemes in the Rift Valley belonging mainly to Kibaki’s
ethnic Kikuyus as well as the Gusii and Kamba. Election manipulations are as old as the hills even in
mature democracies. Kenya is no exception. Its 2007 election was, indubitably, flawed at all its stages
and on multiple fronts by various actors through widespread ballot stuffing, voter bribery and extensive
use of tribal militias to disrupt voting and disenfranchise hostile voters.

As the tussle between George Bush and Al-Gore during America’s controversial 2000 election shows,
closely contested elections like Kenya’s risk de-generating into political dispute. Recourse to courts as the
supreme arbiter in election-related disputes as well as the readiness by protagonists to abide by court
ruling, however sleazy, guaranteed the continued stability of America’s democratic institutions in the
aftermath of a highly divisive election.

Kenya has made giant strides in setting up a functional modern bureaucracy, including a court system.
However, whatever reasons the opposition gave in snubbing the courts, this decision marked a tragic
move backward from the process of institutionalizing a civic culture of politics. Accelerating this move
away from the path to modernization of Kenya’s political culture is the brutal resurgence of the parochial
and localized forces of ethnicity, with tribal-based chaos and disorder making serious depredations on
democracy. For all its goodwill, the push for “peace talks” between the government and Raila’s ODM is
systematically reinforcing this assault on Kenya’s nascent institutions and democratic culture.
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Breaking Kenya’s Impasse: Chaos or Courts?

Ethnic Assault on the Civic Nation

As the wave of democratization washed over Kenya from the 1990s, the country’s 42 tribes appeared
in the battlefront armour-plated to wage claims for power in the arena of civic nation on the basis of
their tribal identities—Kikuyu, Luo, Kalenjin, Maasai or Luhya. The ensuing ethnic assault on civic
citizenship reached its peak during the 2007 election. The palpable tension between ethnic citizenship
and civic citizenship became vivid from the self-fulfilling prophesy by Kenya’s former strongman,
Daniel Moi, that the country’s return to multiparty democracy would trigger cataclysmic tribal violence
that would destroy the nation. Bouts of tribal-based violence marred the 1992, 1997 and, to a lesser
extent, the 2002 elections. But none was deadlier than the 2007 violence.

The road to Kenya’s 2007 election was a deadly minefield of ethnic fighting in many parts of Kenya,
including Kerusoi and Mt Elgon in the Rift Valley and Western provinces, respectively. Hyped idiom of
war during campaigns heightened tension to a perilous pitch. “We shall attack the enemy from every
direction”, Raila quoted Winston Churchill’s war-time speech, “We shall launch a simultaneous attack
from the land, the air and sea, until we secure victory.”

The threat of violence became explicit during the ODM’s final rally in Nairobi on 24 December when
the party leadership threatened to stage a Ukrainian-style civil unrest if the government rigged. On 30
December, violence flared up in Nairobi’s Kawangware, Kibera and Mathare slums, Kisumu, Mombasa
and parts of the Rift Valley when the Electoral Commission declared Kibaki the winner and his
swearing-in as president. This violence, mainly perpetrated by Luos and sections of the Kalenjins, was
primarily directed against Kibaki’s Kikuyu group as well as the Gusii and Kamba accused of voting for
the ruling Party of National Unity (PNU). To a lesser degree, some retaliatory violence against the Luo
was reported and pitched battles with the Kalenjins took place in parts of Eldoret.
Africa Policy Brief
No.1 January 2008 The worst case was the burning of up to 50 Kikuyu women and children sheltering in a Church in
Eldoret. This event prompted the Attorney General, Amos Wako, to remind perpetrators that they
could face international law regarding crime against humanity as government officials accused the
ODM of ‘genocide’ against the Kikuyu. In response, the ODM alleged ‘genocide’ against its own
supporters by the police allegedly with orders to shoot to kill.

Nairobi became a battle ground between the police armed with rungus (batons), tear gas and water
cannons and rioting mobs as Odinga and his supporters pushed for a planned million-strong rally in
Nairobi’s Uhuru Park on 3 January, despite a government ban. The police successfully contained the
riots, and ODM’s bigwigs called off the rally. But Mudavadi promised daily attempts until the
successful holding of the rally to install Raila as a parallel president—a move likely to plunge the
country into a profound political crisis. The government acknowledged that the country was sliding to
the cliff-edge, with Kibaki describing the violence as “senseless” while his Attorney General, Amos
Wako, described the situation as “quickly degenerating into a catastrophe of unimaginable
proportions”. At the center of Kenya’s crisis is the emergence of ethnic warlords, locally known as
‘tribal mafias’.

Tribal ‘Mafia’ Wars

From 2002, Kenya entered it night of the long knives as ethnic mafias battled out for the control of
the state. Paradoxically, the clash of ‘tribal mafias’ gained momentum after the historic December
2002 election that swept President Kibaki and the National Rainbow Coalition (NARC) to victory over
Moi’s handpicked success--Uhuru Kenyatta, the son of Kenya’s first president, Jomo Kenyatta. As
soon as Kibaki came to power, cracks and rivalry within NARC’s ethnic coalition of the Kamba, Kikuyu,
Luo and Luhya re-surfaced.

At the center of the ensuing ethnic power wrangle was Raila Odinga who accused what he dubbed the
‘Mt Kenya mafias’ of reneging on an MOU that promised him the non-existent position of executive
Prime Minister. The NARC coalition came to an acrimonious end when Raila teamed up with Kalonzo
(Kamba), William Ruto and Daniel Moi (Kalenjin) and Uhuru Kenyatta (Kikuyu) to defeat a referendum
on a government-supported constitution in November 2005.
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Breaking Kenya’s Impasse: Chaos or Courts?

Kibaki axed Odinga and other pro-Orange Ministers. But out of this victory gave birth to the Orange
Democratic Movement solidly based on an anti-Kikuyu platform which crystallized into the ‘one-against
41 tribes’ campaign slogan.

Ahead of the 2007 elections, ODM split right through the middle with Kalonzo forming his own ODM-K
and Uhuru joining Kibaki in PNU, which also enjoyed Moi’s strong backing. Kibaki continued to
command support across the country largely because of his economic performance, free primary
education and improvement in social services. But his campaign spin-doctors took off from the naïve
position that “Kenya is not ready for a Luo president”.

Raila moved to counter his assumed ‘inelectability’ by craftily pulling together a multi-ethnic coalition
known as ‘the Pentagon’ consisting of himself (Luo), William Ruto (Kalenjin), Mudavadi (Luhya), Najib
Balala (Coastal arab/Muslim), Charity Ngilu (Kamba) and Nyaga (Mt. Kenya/Mbeere). Although
Kibaki’s PNU transformed itself into a multi-ethnic umbrella party consisting of many parties, it was no
match for the Pentagon as a publicity stunt. As the public face of the ODM campaign, the Pentagon
was calibrated to de-center politics by appealing to the multiple identities of ethnicity, gender,
generation, nationalism, race, religion and regionalism.

Despite this, Pentagon was hoisted on a solid anti-kikuyu plank signified by its “one-against-41”
campaign strategy aimed to replicate the victory of the November 2005 referendum. The motor
driving the Pentagon’s anti-kikuyu alliance was the so-called the “Rift Valley” or “Kalenjin mafias”
consisting mainly of wealthy Nandi, Kipsigis and some Maasai elite who called the shots in the Moi
regime.

Moi may have eventually backed a Kikuyu (Uhuru) as his anointed successor, but this was too little too
late. The enduring legacy of his 24-year rule was an obsessive anti-kikuyu sentiment that came to
Africa Policy Brief
pervade Kenya’s ethnic fabric. In the aftermath of Kenya’s first multi-party election in 1992, Moi lured
No.1 January 2008
Raila’s father, Jaramogi Oginga Odinga, into an informal, albeit contentious, pact to counter the
Kikuyu maverick, Kenneth Matiba, as the new opposition chief.

The political imperative to neutralize another Kikuyu, Mwai Kibaki, as leader of the opposition
following the disputed 1997 election compelled Moi to crystallize the Luo-Kalejin détente, enchanted
by the historian, Bethwell Ogot, as the ‘Jie Speakers’.

On 18 March 2002, Moi took a further step and merged the Luo-dominated National Development
Party (NDP) of Raila with his own KANU to form the short-lived “New KANU”, with Raila as Secretary-
General and cabinet minister. However, Moi’s decision to anoint a Kikuyu—Uhuru—as heir to his
mantle enraged Raila who left the New KANU for Kibaki’s NARC, which pushed the ‘Kalenjin mafias’
out of power in 2002.

The dismissal of Raila and Ruto from Kibaki’s cabinet in 2005 gave a new lease of life to the Luo-
Kelenjin alliance cemented by a shared ambition to re-capture the state and a fervent dislike of the
‘Mt Kenya mafias’ for keeping them out of power.

In the run-up to the 2007 election, the kid gloves came off, and the ‘Kalenjin mafias’ pledged to “use
the boys to teach the Kikuyus a lesson they will never forget”. One of the ‘boys’ earmarked by the Rift
valley elite was William Ruto who broke his political teeth as an activist in Moi’s notorious vote-buying
outfit, Youth-for KANU 1992 (YK-92). The other ‘boy’ was Raila, whom the former Moi stalwarts like
the ODM chairman, Henry Kosgey, and former powerful Secretary to the Cabinet Sally Kosgei believed
would pave their way back to power if he won, while his ‘bravery’ as an opposition leader would be
enough protection against the Kikuyus if he lost the presidential bid.

This clash of ‘ethnic mafias’ turned the Rift Valley—once enchanted by the British colonial
supremacists as “the White Highlands”--into a veritable battle-ground during the election and a
theatre of the worst tribal carnage after the election. The situation become even more deadlier with
the entry of a dangerous strand of America’s rightwing thinking on how to win a narrowly contested
election.
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Breaking Kenya’s Impasse: Chaos or Courts?

Enter Dick Morris

A stridently negative campaign that became the hallmark of the 2007 election opened new fault-lines
in Kenya’s volatile ethnic relations. This marked a dangerous shift from the post-colonial politics of
nation-building which privileged bridging identity gaps within and between Kenya’s 42 tribes to a new
kind of politics that brazenly exploited such ‘wedge issues’ as class, ethnicity, generational gap and
religion (Muslims-versus-Christians) to win the hearts and minds of voters. This unabashed divide-and-
win campaign strategy took a new turn following the frightful debut into Kenyan elections by the
American political strategist, Dick Morris, described by a famous BBC documentary as America's most
ruthless political consultant.

On 13 November 2007, Morris announced that he would be offering his pro bono services for the
campaign to elect the Orange Democratic Party (ODM) presidential hopeful, Raila Odinga. The arrival
of Dick Morris into Kenyan politics introduced his signature political strategy of combining a gamut of
negative campaign themes, wedge issues and opinion surveys to help his clients either win or take
over power through civic action in case of disputed results in narrowly contest elections.

He had already tried out this strategy in Mexico, Ukraine and with the right-wing UK Independence
Party (UKIP) with success. In Mexico, Morris outlined a strategy of negative campaign that utilized
gender gap and vilified the leftist candidate, Lopez Obrador, as an ultra-leftist ally of Chavez and
Castro to help the centrist Felipe Calderon clinch a narrow win in the 2004 election. As a consultant to
the Victor Yushchenko Presidential campaign (2004-2005), Morris insisted on exit polls as a means of
potentially exposing ballot tampering, which he claims played a significant role in forcing the
government of President Leonid Kuchma to acquiescence to a new election when official results varied
materially from the exit survey. Yushchenko went on to carry out a successful civil coup in Ukraine.
Africa Policy Brief
No.1 January 2008 Despite the visible obsession among Kenyans with things American, the ODM advertisement of Morris
as a former advisor to Bill and Hillary Clinton and an architect of the US-backed Ukraine's Orange
Revolution did not endear him to the Kenyan public. Four weeks to the National Elections, the editorial
of one of the leading Dailies (The Standard) called into question the legalities of his consulting work
from the perspective of his presence, and lack of legal ability to work, in Kenya "pro bono" or "through
the back door".

Morris hastily left the country. However, the finger marks of his political strategy were all over the
ODM’s campaign plan. One of the central planks of Morris Kenyan script, outlined in the ODM’s
strategic plan for the campaign rolled out on 8 September 2007, was an intense negative campaign of
running down Kibaki’s family and depicting his government as irredeemably corrupt and ethnic.

Yet, the ODM was itself a den of Kenya’s chronically corrupt elite, all of whom had been indicted by the
famous Ndung’u Report as perpetrators of the most egregious cases of mega-corruption and land-
grabbing. More importantly was the exploitation of fault-line issues, mainly anti-Kikuyu crusade, to
brand Kibaki as a ‘Kikuyu’ chauvinist in order to alienate his national support and exploit anti-Kikuyu
sentiments to win the vote of other communities in multi-ethnic provinces.

Closely linked to the anti-Kikuyu crusade was the clamour for Majimboism (ethnic federalism) as a
divide-and-win ploy targeting the Kalenjins in the Rift Valley and disaffected Arab-Swahili population at
the coast, but marketed as an instrument of devolution of power and resources to the grassroots.
Majimboism fatally assaulted civic citizenship, polarizing Kenya’s ethnic groups along the exclusivist
binaries of ‘native-settler’, ‘citizen-alien’ and ‘indigenous-migrant’. Its advocates cynically played on the
legitimate and shared grievances arising from obvious inequalities, corruption, discrimination and
exclusion within, between and across the country to stoke the embers of tribal hostilities, especially in
re-settlement areas in the Rift Valley and western Kenya.

This partly contributed to the eruption of violence in Kerusoi and Mt Elgon in the Rift Valley and
Western, respectively. Whether by design or by coincidence, the violence effectively displaced Kikuyus
and Gusiis, with displacement serving as a devise of killing hostile vote. It also set the stage for the
post-election violence. Conversely, the anti-kikuyu fever aided the ‘Mt Kenya elite’ to successfully
mobilize the Kikuyu, Meru, Embu and Mbeere behind Mwai Kibaki. For the first time since Kenya’s
return to multi-party politics, the Mt. Kenya people united, bridging the proverbial Chania River divide.
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Breaking Kenya’s Impasse: Chaos or Courts?

Another key wedge issue was the age-gap. Although the Kibaki administration had reduced poverty
from 58 to 46 percent, unemployed and poverty-stricken youth characteristic of developing countries
made the concept of ‘change’ that underlined the ODM campaign particularly attractive to Kenya’s
young people. In Central province, the age-gap caught up for a while, especially in the aftermath of the
bloody confrontation between the Mungiki and security forces in parts of the country. .

However, ethnic solidarity soon trumped the generational identity, and the vast bulk of Mt Kenya youth
elected Kibaki as president. Despite this, the theme of generational change of guard became manifest in
parliamentary elections where the old-guards lost to youthful politicians. Outside Central province, the
youth stratum provided fodder to the campaigns of politicians as militias or goons used in creating
mayhem in polling stations. In the post-election impasse, youth have served not as vanguards but as
vandals responsible for burning and killing.

The Christian-Muslim divide in Kenya was also squeezed for any vote it could guarantee in the
predominantly Muslim North Eastern and Coast provinces. In this regard, the ODM flag-bearer, Odinga,
signed the controversial Memorandum of Understanding (MOU) with a militant Islamic political grouping
to ‘protect’ Muslims from harassment and abuses linked to the US-led global war on terrorism. The MOU
drew the ire of Kenya’s Christian community. But in Nyanza and the Rift Valley ethnicity, again, trumped
religion as many Luos and Kalenjin voted Raila as president. After the elections, political Islam has
become a vehicle of mobilizing violent protests particularly in Mombasa, where over 5,000 mainly up-
country (wabara) people were killed and 100,000 others displaced in politically-motivated violence in
1997.

Opinion polls as an instrument of democracy made its debut in Kenya during the 2007 elections. But it
emerged as the Frankenstein’s monster in Morris strategy that was to haunt post-election Kenya. As in
Ukraine, the results of opinion poll, some of which gave Raila a narrow lead, enabled the ODM to claim
Africa Policy Brief
victory, allege fraud and to prepare the way to reject unfavourable outcome and rationalize riots.
No.1 January 2008

Who Stole the Election?

At the heart of Kenya’s festering crisis is what is now dubbed as “Kenya’s stolen election”. But who
stole the Kenyan election? The Western world’s answer to this question is summed up by the
Economist’s ‘twilight robbery’ thesis: “The decision to return Kenya’s 76-year-old incumbent president,
Mwai Kibaki, to office was not made by the Kenyan people but by a small group of hardline leaders from
Kibaki’s Kikuyu tribe…It was a civil coup” (05.01.2008: 34).

This, argues the Economist, was done through ballot stuffing. It continues:

“All that was needed were extra votes to squeak past Mr. Odinga in what had been among
the most closely contested elections Africa had ever seen. That is why returns from Central
Province, Mr Kibaki’s fiercely loyal heartland were inextricably held back. It is why, in some
constituencies, a large number of votes seemed mysteriously to vote only in presidential race
and ignore the parliamentary ballot”.

The paper further alleges that fiddling had also taken place in Nairobi where ‘Kibaki’s hardliners’ simply
crossed out the number of votes as announced in the constituency and scribbled in higher numbers. The
paper also alleges hat election monitors were turned away while tallying went on.

One of the main sources of this rigging thesis was the European Union observer team whose preliminary
report said that the presidential poll had fallen short of “international standards”. Monitors of the EU
team even alleged having seen tens of thousands of votes pitched through crossing out the number of
votes as announced in the constituencies. This deliberately one-sided perspective by the EU drew
attention to the impartiality of international observers, and the almost nihilistic tendency to stoke rather
than prevent fires arising from disputed elections in Africa.

The EU was initially reluctant to send observers, arguing that the resources for Africa were slim and
Kenya was “too stable”. As such, it entered the scene too late to grasp the intricate processes of
electoral flaws that characterized Kenya’s protractedly and heavily mined electoral field.
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Breaking Kenya’s Impasse: Chaos or Courts?

Even before EU monitors parachuted into Kenya a few days before the polling day, opinion surveys
that showed Mr. Odinga with a razor-edge lead and images of a ‘corrupt’ and crumbling Kikuyu
kleptocracy had already swayed them to the opinion that nothing less than rigging would save the
Kibaki presidency. Further, western election observation orthodoxy is underpinned by the flawed
thinking that only governments can steal the votes from the ‘innocent’ opposition underdogs.

Viewing events through this villain-victim prism, many international observers trained the sharpest of
their cameras on the “government zones” in a forensic-like screening for all signs of election frauds. In
the process, they utterly closed their eyes to the massive frauds by the ODM in its Nyanza home tuff,
Rift Valley and Nairobi.

At least, the Economist was decent enough to acknowledge that “Mr. Odinga’s supporters were not
innocent either”, adding that: “There were irregularities in his home province of Nyanza” (p.34). But it
never went on to unearth the degree of these so-called irregularities. Rather, it chose to rub the point
home that: “Still, it was the meddling in Central Province that was decisive”--a conclusion that election
fraud forensic experts will most certainly find disturbingly biased.

Civil Coup?
What eluded many observers is that, from the outset, the very concept of ‘rigging’ was the lynchpin of
a larger build-up to a post-election civilian coup. As one interviewee noted: “Since September [2007],
the ODM chiefs have curiously alleged a rigging plot by the government, like an incantation, at least
twice a day and in every public forum and media event”.

Even before the term of the Electoral Commission Chairman, Samuel Kivuitu, expired in early
Africa Policy Brief December, the government acquiesced to the ODM pressure to re-appoint him following its claims
No.1 January 2008 that President Kibaki was appointing partisan Electoral Commissioners to aid his effort to sabotage
both the voting process and the results. The ODM then turned to the voters roll, alleging a conspiracy
to alter voter registers and to do away with the “black book” in order to rig out ODM voters. Even
more dramatic, it accused the government of plotting to print parallel ballot paper in Belgium, forcing
the ECK as well as Steve Ouzman Ltd, the British ballot printers, to come forward and clear the air.

The ubiquity of these rigging claims fostered a climate of distrust and gave rise to the not-so-far-
fetched view that this was a carefully calculated war cry. It was aimed at preparing the way for the
ODM to reject the election results if it lost. During their final campaign rally In Nairobi’s Nyayo stadium
on 24 December, the ODM overlords put the country on notice that they were not going to accept
anything less than a victory, alleging that the government had already rigged the election, and they
could not accept it.

Even more scary was the threat by Odinga’s running mate, Musalia Mudavadi, that ODM would pour
into the streets as in Ukraine where the official loser (Viktor Yushchenko) disputed the results,
resorted to civic action and seized power (from Viktor Yanukovych) with international blessing. Was
Mudavadi consciously preparing ODM supporters for the party’s plan to reject the election results, take
to the streets and grab power?

Thief in the Night

The fact that Mr. Odinga opened an early lead in election returns in an ethnically polarized vote
became the cornerstone of the “twilight robbery” thesis that Kibaki could only have “squeaked
through”, and fraudulently so. The PNU had raised its concerns to the European Union observers that
the ODM planned to rig the elections by stuffing ballot boxes with marked ballots of Hon. Raila in Luo
Nyanza and other areas because there will not be any PNU agents and observers in place. Coming
from the ruling party, this complaint appears to have been dimmed as of no merit.

The story of the meddling in Central Province has been told. What remains hidden in the dark is how
the ODM meddled massively in the voting in Nyanza and its Rift Valley strongholds hopefully to open
an early lead, and eventually win the polls. Two subtle strategies were widely used to fraudulently
influence the outcomes of election in Luo Nyanza and the ODM zones in the Rift Valley.
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Breaking Kenya’s Impasse: Chaos or Courts?

The first was the systematic use of youth militias to foster a climate of insecurity and create artificial
stampedes for two ends: scuttle rival voters and stuff ballot boxes. For instance, in Langata Nairobi,
rival politicians charged that the ODM underwrote multiple gangs consisting of between 300-500-
strong youth militias who provided safety to friendly polling stations and created stampede in centers
considered as inhabited by rival groups to slow down the voting process and intimidate voters,
particularly women. Not surprisingly, Langata had the lowest turn-out of less than 50 percent.
Elsewhere, youth gangs created mayhem in unfriendly stations and inject pre-marked ballots into
boxes, leading to the suspension of voting in places like Kamukuji. Insecurity served as a cover that
was used to brazenly stuff boxes in Luo Nyanza and parts of the Rift Valley. This became decisive in
the ODM early lead in results.

As table 1 shows, this resulted in some constituencies recording a voter-turn out in the presidential
ballot that went way beyond a hundred per cent mark, and others recording over 100 per cent turn-
out. Seven constituencies in Luo Nyanza recorded a voter turn-out that scandalously ranged between
92 and 98 percent.

Over 90 Per cent presidential voter turn-out in ODM and PNU Areas
Turn-out in ODM Strongholds Turn-out in PNU Strongholds
Constituency Percentage Constituency Percentage
Rift Valley province Central province
Sigor 115% *Othaya 90%
Eldoret North 116%
Mosop 97%
Emgwen 103%
Africa Policy Brief Baringo North 92%
No.1 January 2008 Narok South 120%
Ainamoi 91%
Nyanza province
Bondo 102%
Kisumu Rural 102%
Karachuonyo 94%
Rangwe 92%
Ndhiwa 93%
Nyatike 95%
Mbita 95%
Source, Daily Nation (Nairobi) 31 December 2007; PNU submission to the Electoral Commission; Press Statement, 28 December
2007. * ODM disputed 23 constituencies from Central and Upper Eastern, but all were below 83% voter turn out.

PNU pundits claimed that as a result of ballot stuffing in 14 constituencies in Luo Nyanza and the Rift
Valley, the opposition fraudulently gained no less than 900,000 presidential votes, enabling it to open
an early lead. Despite this, the consistent claim that has torched the nation is that the presidential
result was ‘fiddled’ within the ECK, with active involvement of persons who favoured Kibaki’s re-
election—an allegation made by ODM and taken up by some observers as a truism.

As the voting day dawned, the ODM was deeply worried that the plan to replicate the November 2005
referendum was falling apart. On 23 December, the ODM pundits warned its strategic team that voter
turn-out in Central and Eastern Province was likely to be many times higher than the pitiably low turn-
out during the referendum. This expected voter “avalanche”, they warned, would decisively ensure a
Kibaki victory.

According to the party’s media monitors, the expected high turn-out was as a result of FM stations
broadcasting in Kikuyu and Kimeru languages, which were drumming messages calling for a strong
voter turn-out. But it is also worth noting that ahead of the voting day, many businesspeople in the
region resolved to close up business on December 27 to allow workers to go to vote. Further, Kikuyu
youths launched “operation firibi’ (operation whittle) to ensure that all registered voters in the
province cast their votes. Finally, on the voting day, an ‘‘inked finger” was a mandatory pass to access
services, including transport, a beer in a local pub, a cup of tea in a kiosk or paraffin in a petrol
station.
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Breaking Kenya’s Impasse: Chaos or Courts?

Although these measures resulted in unprecedented voter turn-out in the region, the figures remained
within a credible average of below 90 percent. This cast doubts on the veracity of the alleged
“massive inflation of voting figures” in Central province and Upper Eastern province.

The ODM strategy of countering this obstacle to its victory was quick and subtle. Its spin-doctors
advised its agents in Central, Upper Eastern and Nairobi provinces to vigorously dispute every count
and demand a new full count before signing forms 16a and 16, which are passed on to the ECK in
Nairobi to announce results. Delaying votes from the Kikuyu areas was the ODM endgame: It would
enable them to open an early lead while enabling the ODM chiefs to allege fiddling in particularly in
Central Province when Kibaki closed the gap. While diverting attention from meddling in Nyanza and
ODM Rift Valley, this strategy would refocus media spotlight on the Kikuyu-dominated areas as the
real theatre of rigging. And the strategy work, aided by a feloniously inept Electoral Commission.

ECK: Compromised Broker?

From its formation in the 1990s, the Electoral Commission had developed a demonstrably reasonable
capacity to competently managed elections and to release of results on time. By December 27, it had
to its credit three multi-party elections, a referendum and numerous by-elections. What happened in
2007? The commission’s role particularly during the vote counting on 28-30 December has been
characterized as ‘doggy’. Its snail’s pace and pattern of releasing results opened the ECK’s
competence and preparedness to question at a particularly tense moment in the country’s history.
This stoked suspicions that the results were being ‘cooked’ by returning officers to favour certain
Presidential candidates.

Speaking later to the privately-run Kenya Television Network (KTN), Kivuitu disclosed that: "The
Africa Policy Brief European Union (EU) mission and Maina Kiai (Kenya National Commission on Human Rights) chairman
No.1 January 2008 wanted me to postpone … by a week so as I can investigate the allegations of irregularities". Kivuitu
further declared that: “Kiai called me four times but the Party of National Unity (PNU) and the Orange
Democratic Movement of Kenya (ODM) pressurized me to announce the results. At one point I
contemplated resigning but later thought that Kenya is bigger than me."

The visibly unprofessional way in which the Chairman of the Commission addressed some of these
anxieties did not help the situation. On 29 December, Kivuitu shook the nation with his
announcement that delays in the presidential elections were caused by the disappearance of senior
poll officials who had gone to "cook [results] for people who were paying them". As tension mounted,
the ECK Commissioners were collectively and individually opened to pressure from both national and
international interest groups.

On 29 December, Raila and some key ODM Pentagon members had their cover blown when they were
found holding a secret meeting at the Palacina Hotel in Nairobi with four ECK officials from Western
Kenya as counting went on. The same four commissioners were later to allege that when confronted
by angry members of the public, the four officials were sneaked out of the hotel disguised in hotel
uniform, but one was arrested by police with a tally recorder marked for Tijana East constituency and
taken to Kilimani police station.

Kivuitu may have been blamed for the post-election mess by declaring Kibaki as the president, paving
way for his swearing at State house the same day. For Kenyan observers, his admission that the
presidential election may have been tempered with simply confirmed what the PNU and ODM had told
the commission, but it eroded its own credibility and that of the 2007 election. However, like a good
lawyer, he pointed to the direction that Kenya should take to resolve any dispute emanating from the
election: the courts. This is still the route that should be taken.
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Breaking Kenya’s Impasse: Chaos or Courts?

Conclusion
Kenya is facing perhaps the most profound test of its stability and institutions as it moves into its fifth
election cycle. The 2007 election has ended in a dispute. The role of international mediators and well-
wishers ike Desmond Tutu, John Kufor and Kofi Annan who have played a pivotal role in trying to
break the impasse and normalize the situation, but the crisis persists. But while their role is a
welcome gesture of good will to the people of Kenya, overstretching mediation may permanently
erode the credibility of Kenya’s established courts and other arbitration institutions which Kenya’s
people have painfully nurtured for the last 44 years. What has come to be called the Kenyan crisis is
a perfectly normal situation that from time to time confronts in democratic systems. It should never
be likened to ‘political crises’ in other parts of Africa like Somalia or Darfur-although Kenya may get
there if this is not addressed expediently.

Rather, what Kenya is witnessing is an election dispute like the one that engulfed America in 2000
when the Democratic and Republican party candidates disagreed on the process and results. While
elders like Jimmy Carter and James Baker were called by both sides to cool tempers, all parties to the
dispute were agreed that the court system—with all its faults, including partisan and ideological
interests--was the way to go. Kenya will have many more disputed elections 200 years today. No
matter how compromised the court system may be, it is still the only credible and sustainable
arbitration mechanisms open to, and ever invested by, civilized societies.

Kenya needs the courts to suggest the way forward, not mediators to broker transient deals and
power pacts among powerful elites. Certainly, chaos in all its guises is never the way out. Kenya
must now return to reason. The opposition should stop all its mass action because it can only
produce another disputed, and possibly dictatorial, regime. The government should guarantee that
Africa Policy Brief the dispute will be dealt with within reasonable time—no more than three months. It might be
No.1 January 2008 necessary to call in judges from other commonwealth countries to provide the necessary neutrality
and restore the confidence of the parties to the dispute in the courts. Finally, all parties must be
prepared to honor the final verdict of the courts: a recount, a re-run, or a victory of either of the
parties.

The role of the court should be supported by national mediators and the media who have to do the
spade work in reconciling communities torn by violent conflict and calming the nation. The national
healing process must of necessity involve the resuscitation of Kenya’s multi-ethnic vision based on
civic rather than ethnic citizenship, sanctity of law and public order and the courts as the supreme
arbiter in all disputes, including election ones.

_____________________________________________________

This report was researched and written by Dr Peter Kagwanja with input from API researchers in Nairobi and Pretoria. It is
based on research carried out between August 2007 and January 2008.