By Charles Khamala
Before the International Criminal Court intervened in Kenya, mass violence at elections was an accepted sociological fact. This character of ethnic violence is confirmed in various official reports, including the Akiwumi Report on Tribal Clashes, 1999, The Waki Report into Post-Election Violence, 2008, and the Kenya National Commission on Human Rights Report, 2008, entitled “Kenya: The Cry of Blood-Report on Extra-Judicial Killings and Disappearances”. One common assumption is that mobilisation of electoral violence is based on ethnic loyalty, rather than economic inducement. This inherent criminalisation of Kenyan politics argues that ethnic groups are intransigent. It is only half-true. A fuller picture reveals that the impact of flexible ethnic participation in politics is mostly uncharted.
Are conflicts spontaneous or sponsored?
Under Kenya’s 2010 Constitution, the Independent Elections and Boundaries Commission replaced the defunct Election Commission of Kenya. Accompanying wider constitutional reforms, the IEBC aimed at reviving public confidence in the electoral process. Electoral reforms were targeted at promoting behavioural transparency attained by recruiting uncompromising officials. While ethnic-balancing effectively insulated its officials from perceptions of internal bias, new allegations from the infamous “Chickengate Scandal” suggest that their independence may have been compromised by external corruption.
In the cultural dimension, the 2013 presidential election was conducted in an environment of “perfect peace.” In the economic dimension, emerging corruption allegations imply that the potential for ethnic violence at previous electoral episodes was not entirely spontaneous; rather, it was partly preceded by political manipulation through money.
Indeed, sustained Second Liberation demands for comprehensive constitutional reforms were mainly concerned with devolving power and resources aimed at accountability and responsiveness of elected leaders. To this end, because county governors and senators are relatively closer to the masses, devolution measures indirectly neutralise the need for mass violence, attributable to historical grievances exacerbated by negative ethnicity. However, recent calls for constitutional amendments include demands to reinforce electoral integrity, in addition to structural inclusion as the promoter of redistribution.
Since 2012, political parties receive pro rata funding from the exchequer. It has therefore become legitimate to explore various roles and impacts of the use of taxpayers’ money not only in mobilising ethnic conflicts, but also in inducing electoral malpractice. One argument by Deputy President William Ruto’s and former radio journalist Joshua Sang’s defence lawyers before the ICC is that in protest against perceived lack of access to governmental goods under the “divide-and-rule,” post-independence, winner-take-all, old constitution, ODM’s excluded ethnic communities were spontaneously prompted to precipitate Kenya’s post-2007 electoral conflicts. That Spontaneity Theory receives corroboration from evidence at the 2013 elections.
The culture of “perfect peace” in 2013 may have been partly attributable to the new 2010 Constitution’s devolution of political positions, accompanied by prospects of economic devolution of public revenue allocation, which reduced the propensity for ethnic mass violence. Conversely, ICC’s Chief Prosecutor Fatou Bensouda accuses the Kenyan suspects of procuring and counselling the physical perpetrators, respectively. Simplistically, given the absence of a ceiling on electoral expenditure by Kenyan political candidates, the ICC is tasked to determine whether Kenyan voters’ violent behaviour in 2007 is attributable by ethnic identity or monetary inducement. More complexly, the causes of electoral violence suggest that politicians strategically rely on money – not merely bribing voters, but through inducing electoral officials, to distort voting patterns.
This Rational Choice theory may be used to interrogate the nature of ethnic political participation. Since average Kenyan voters believe that choosing ethnically satisfies their preferences, it is so rational to decide in favour of one’s own. Writ large, during power-sharing from 2008-2013, Kenya’s protagonist ethnic parties PNU and ODM established an illiberal democracy. Ethnic-balancing pragmatically informed their post-conflict settlement agreement under the National Accord ratified under the 2010 Constitution. In 2015, however, the advanced stage of ICC’s Ruto-Sang prosecutions require renewed investigations into the extent to which the post-2010 devolution laws operated to diffuse positions and national resources to extinguish ethnic tensions in 2013, and whether Jubilee’s devolved governance implementation has sufficiently de-concentrated the allure of executive power in readiness for renewed electoral showdown in 2017.
Arguably, one reason why the cyclical pattern of ethnic violence was effectively neutralised in 2013 was the sword of Damocles in the form of ICC prosecutions dangling over the heads of the Jubilee coalition’s presidential duo of Uhuru Kenyatta and his running mate William Ruto. Although CORD’s presidential candidate rejected the IEBC’s declared result, his “evidence” substantiating alleged electoral malpractice was an afterthought. The Supreme Court declined to extend time for a belated forensic audit whether into IEBC’s computer databases or into corrupt procurement irregularities of biometric voter devices.
That petition lacked substance due to legal technicalities. Nonetheless, beyond Jubilee’s shock first round win, and besides scholarly discourse over the correctness of Supreme Court’s judicial restraint interpretation, criminal law theorists are mulling over what factor was instrumental in preventing the 2013 presidential electoral dispute from degenerating into ethnic violence. Was “perfect peace” mainly attributable to ICC’s prosecution threat facing Jubilee’s candidates or to devolution? Or to other factors, like the muzzled media, or even the public’s renewed confidence in the 2010 Constitution, including the Supreme Court? The answer to this question can enable reproduction of peaceful conditions to inhibit ethnic conflicts at future closely-contested, hotly-disputed, political competitions. The minimalist aim is not to prevent malpractice altogether, but merely to contain the voter dissatisfaction from escalating disputes into mass violence and avert crimes against humanity.
Linking economy, ethnicity, elections and integrity
Going by displacement theory, the key cause of conflicts could be that at earlier electoral contests in 1992 and 1997, sponsored ethnic violence distorted voting outcomes.
Conversely, in 2007 despite peaceful voting, ECK’s perceived malpractice triggered post-election violence. Thus, by 2007, pre-election violence was unfashionable. Instead, induced institutional failure was preferable, which possibly in turn triggered spontaneous post-election violence. In short, having displaced the previous distortion tactic of ethnic conflicts, nowadays institutional, not voter’s decisional, bribery is becoming the acceptable strategy to winning Kenyan presidential elections. Apply Talcott Parsons’ Power Banks theory of the role of money in four sub-systems. First, in the economic sub-system, where money functions not only to purchase votes during campaigns but also to bribe elite officials. Second, in the political subsystem, where votes operate as deposits which bind elected representatives to deliver public goods. Third, in the legal subsystem, where new legislation devolved power, thereby dividing the annual budgetary revenues between national and county governments to pacify the masses. Fourth, the cultural subsystem, where warlords organise, finance and plan ethnic violence. Arguably, triggers of electoral distortion resulting in ethnic conflicts may have progressively shifted from Kenya’s cultural sub-system in the 1990s, into the economy in 2007 and after.
In new democracies, ethnic politics have a stabilising effect. Ethnic political competition is healthy. However, this is unlike Kenya’s Second Republic, which is still a maturing democracy, where ethnic political behaviour depends on the external conditions restricting representation of the group. Continued sectional governance in Kenya means that citizens whose ethnic group is not in power are necessarily excluded from access to national resources, which are perceived to trickle down only to members of the ruling ethnic group.
Thus, in maturing democracies, instead of ethnic political parties stabilising electoral politics, members in unrepresented ethnic groups, “exit” electoral politics. One example of self-determination is the ongoing secession clamour at the coast under the Mombasa Republican Council’s “Pwani si Kenya” slogan. Other minorities remedy their lack of representation through alternative means to voice their political demands, including violence or protest. Respective examples are the Sabaot Land Defence Force’s resort to guerrilla tactics to agitate for indigenous territorial autonomy around Mt Elgon since 2005, and participatory claims galvanising civil society activists throughout the 1990s seeking “accommodation” through expanded civil and political rights.
War on Corruption’vs Okoa Kenya
The increasing importance of institutional bribery as the dominant election-distorting tool, rather than either traditional reliance on ethnic violence, or even voter bribery, is evidenced by recent criminal cases from comparative criminal courts. The leading English case of “R v Smith and Ouzman Ltd. and others”  involves a UK security documents printing company specialising in ballot papers and education certificates. In 2010, contrary to the UK 1906 Prevention of Corruption Act, S&O routinely gave commonplace bribes to Kenya’s Interim Independent Electoral Commission (IEBC’s precursor with many similar officials) and Kenya National Examinations Council. Upon conviction by David Higgins for corruptly agreeing to pay kickbacks of £330,000 (Sh47 million) in Kenya and another £70,000 (Sh10 million) in Mauritania, its chairman, 72 year-old Christopher John Smith, received a suspended 18-month jail term. During curfew, he must perform unpaid work for 250 hours. His son aged 43, Nicholas Charles Smith, its sales and marketing director, was condemned to a three-year custodial sentence. Both suffered a six-year ban from acting as company directors. Judge Higgins described the underhand cash bribes, code-worded “chicken” in emails, as “cynical, deplorable and deeply anti-social and suggests, at least in this context, moral turpitude.” Yet Kenya’s Director of Public Prosecutions Keriako Tobiko, still awaits the file from the Ethics and Anti-Corruption which also awaits the UK’s Serious Fraud Office’s mutual legal assistance. How absurd! Notwithstanding Higgins J’s finding that “the loss to the people of Kenya (is) beyond financial who were less able to trust the integrity of their electoral and examination systems” and “…the consequences of which…could be catastrophic, leading in the past to violence and loss of life,” EACC Deputy CEO Michael Mubea claims it cannot conduct investigations!
What lessons emerge by comparing the Jubilee collation’s legitimacy and development record, on one hand, and the record of the 2008-2013 Government of National Unity spawned by the National Accord, on the other? The Jubilee collation between TNA’s Kikuyus and URP’s Kalenjins proves that resolving political conflict through post-election ethnic bargaining is not a necessary condition for the inclusion of ethnic groups in national politics. This is because a grand coalition need not necessarily comprise political parties which campaigned against each other. Instead, in the current government, increased decentralisation is facilitated by Kenyatta and Ruto’s pre-election coalition between TNA and URP which promoted a sense of autonomy among Kenyans against the ICC, enhanced social order by promoting the legitimacy of the state, and limited pressures for separatism by diverse regions or ethnic groups. Conversely, in the earlier post-election power-sharing, Kibaki’s PNU and Odinga’s ODM’s accepted the GNU’s apportionment of the national budget among all tribes to douse simmering ethnic tensions, and thereby trade-off international retribution by bargaining with ICC to prevent investigation into their own alleged roles in the post-2007 conflict.
It follows that irrespective of how or when a ruling ethnic coalition seizes power, in practical economic terms, the constitutional purpose of widening the scope and fairness of Kenyan democracy is to promote accountability and responsiveness of policies concerning delivery of local public goods and services to the regions. Going forward, Infotrak’s November 2015 opinion poll indicates that “approval ratings for the President Uhuru Kenyatta-led coalition dipped in regions that overwhelmingly supported Jubilee of Mt Kenya and Rift Valley in the last elections.” Overall, an assessment of the president’s strongholds’ verdict of his Jubilee administration’s performance is mixed. They show “54.3 per cent of Central Kenya residents identify with the ruling coalition while 49.3 per cent of those from Rift Valley would vote for Uhuru.”
CORD’s Okoa Kenya initiative is currently petitioning Parliament for a national referendum. It concerns inter alia, “raising from 15 per cent to 45 per cent the budgetary allocation to the counties from the national government.” The opposition capitalises on late 2015 statistics suggesting that while public services, typified by Huduma centres, may have improved, perceptions of unchecked corruption have skyrocketed. Added is ICC’s relentless prosecution of the Rift Valley’s Hague Two, contrasted with Tobiko’s unfair prosecution policy.
These inequalities revive perceptions that PNU’s members escaped from both domestic and international prosecution, while ODM’s are condemned. This disparity results in perceptions of ethnic exclusiveness, fanning the potential for ethnic conflict as evidenced by increasing hate speech across the political divide. Because international criminal law nowadays criminalises mass atrocities, ethnic violence is not a feasible political strategy.
Therefore, evidence implicating dismissed Cabinet Secretaries in grand graft forced President Kenyatta’s cabinet reshuffle, disguised as a “war on corruption”, which was tailored to rebalance ethnic representation to reverse the perception that non-prosecution of certain officials implicated in graft amounted to their indirect inducement to facilitate preparations for his 2017 presidential re-election bid.
Writer is an advocate of the High Court of Kenya