Kenya's Kenyatta overcame court battles, political intrigue to win

Tuesday November 28 2017

President Uhuru Kenyatta addressing journalists

President Uhuru Kenyatta addressing journalists at State House on October 17, 2017. As he takes his oath, Mr Kenyatta knows that he will be presiding over a divided nation and his second term will need more than building bridges. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP 

By DAILY NATION
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As he walks to take the oath of office Tuesday and start his second term, Kenya's President Uhuru Kenyatta will be with the gait of one who has run the political race of his life.

It has been a dramatic, difficult and draining season — even to his opponent, Mr Raila Odinga.

Had he lost, Mr Kenyatta would have become the first one-term president in Kenya’s history.

By winning, he may well have brought to a close the political career of Mr Odinga — whose domination of opposition politics has earned him accolades and avid followers.

Mr Odinga has said he will not run in 2022 though there is no reason, even at 77, to bar him from doing so.

But by boycotting the elections ordered by the Supreme Court after it annulled the August 8 presidential election, Mr Odinga not only threw the ruling Jubilee Party into a spin but he may have unwittingly also thrown his yearning for the presidency to the winds.

What Mr Odinga does after Mr Kenyatta is sworn in on Tuesday is only political guesswork.

Radicals within his new outfit, the National Resistance Movement, would have wanted him to be “sworn-in” — a route Mr Odinga reportedly does not want to travel.

Presidency

Mr Kenyatta would have wanted a decisive victory against Mr Odinga:

He won’t get that. And Mr Odinga would have wanted to crown his colourful political career with the presidency — a position that eluded his father, the late doyen of opposition politics Jaramogi Oginga Odinga. He won’t get that either.

As the heir of Jaramogi’s political battles, Mr Odinga’s failure to clinch the presidency was the result of wrong timing — and most probably wrong legal advice — from his inner circle.

Also, President Kenyatta had all the advantages of incumbency and his supporters may be echoing the words of the late US President John F. Kennedy: “Victory has a thousand fathers, but defeat is an orphan.”

But lost in the heat of contestation and political power struggles is a profound Jubilee political experiment that will almost certainly shape future races: delivery politics.

In the past, incumbents sought re-election on the stability, safe-pair-of-hands platform, with a raft of promises thrown in.

The opposition, on the other hand, has played the change card for 25 years, promising a new political dispensation and stoking old grievances.

That has been the formula since 1992.

Development

The legs of the Jubilee re-election campaign was a bold boast — you elected us, we delivered.

On top of the big projects such as Standard Gauge Railway (SGR) whose trains started running conveniently before the election, there were also local level projects to which the leadership vigorously drew attention.

Initially, the Kenyatta camp had banked on the hope that the alliance between opposition leaders Mr Odinga, Kalonzo Musyoka, Musalia Mudavadi and Moses Wetang’ula would collapse.

That way, they had hoped to take advantage of their numbers and penetrate the Coalition for Reforms and Democracy (Cord) strongholds of counties in Nyanza, Coast, Western and parts of Eastern regions, which were dominated by the opposition.

They had also hoped that the opposition would lack enough resources to marshal a serious campaign.

But the emergence of Jimi Wanjigi, tenderpreneur emeritus and the grand panjandrum of political financing, as the lead resource mobiliser in the Nasa secretariat — while not surprising to Jubilee Party mandarins — meant that an epic battle royale was about to commence.

Inside the Uhuru campaign, officials crafted a get-out-and-register campaign strategy hoping to sway the votes to their favour by banking on turn-out in their strongholds of Mt Kenya and Rift Valley regions.

But they had to surmount a nomination headache after they had collapsed all the small parties that supported Mr Kenyatta’s candidacy into Jubilee Party.

Failure to carry out democratic nominations would have sunk the party — even before it sailed from the harbour.

Nominations

And then, things went wrong. The chaotic scenes that marked the April 21 nominations in the Jubilee strongholds almost spoilt the party and Mr Kenyatta and his deputy had to make quick decisions to save the party.

First, they were forced to cancel elections in 21 counties, admitting massive irregularities.

In some counties, violent incidents were reported, with youths barricading major roads, storming polling centres and burning ballot papers in protest.

That day, Mr Ruto spent the entire evening at a printing firm in Industrial Area in the capital supervising the printing of new ballot papers.

He also took charge of the party headquarters, which had earlier been left to rookies and had become the playground of politicos eager to sway the nomination to their favourite candidates.

While Jubilee managed to have a sensible repeat nomination, its next headache was the emergence of independent candidates in its strongholds.

Within Nasa - leaders Mr Odinga, Mr Musyoka, Mr Mudavadi and Mr Wetang’ula were torn between presenting a single presidential candidate and the prospects of their parties losing identity.

Unlike Jubilee that had formed a single party, the Orange Democratic Movement (ODM), Wiper Democratic Movement (WDM), Amani National Congress (ANC) and Ford-Kenya feared to lose their political identity and none of the principals wanted to forgo their places as party leaders.

That was a big boon to Jubilee Party, which would take advantage of Nasa’s fielding of several candidates for a single seat.

Finally, it won parliamentary seats in what was considered an opposition zone.

IEBC

On the presidential seat, Jubilee was waiting for a possible fallout between the four party leaders but this did not happen after the April announcement that saw Mr Odinga clinch the Nasa ticket, ending a cut-throat competition within his outfit.

Other battle fronts had been opened with the electoral agency Independent Electoral and Boundaries Commission (IEBC), which was under siege from Nasa politicians.

When President Uhuru Kenyatta signed in January this year the controversial Election Laws (Amendment) Bill 2015 into law and allowed the use of a manual back-up in case the electronic system failed — the opposition threatened to call for mass action.

The law allowed the IEBC to use “a complimentary mechanism for identification of voters and transmission of election results” in case the gadgets failed.

Though IEBC chief executive Ezra Chiloba said voters would be identified electronically, and that the manual system would only be used in the event that the former failed, the opposition claimed that a manual voting system would allow ghost voters to take part in the elections and termed the laws a plot by Jubilee to rig the elections.

Mr Paul Mwangi, who is Mr Odinga’s lawyer, went to court to compel IEBC to stop the plan, telling the High Court that “one of the dangers of the manual system is that it has no inbuilt mechanism to stop fraud and is open to manipulation”, he had argued.

But the Court of Appeal wondered why Nasa was going to court days before the elections and dismissed the case.

Poll annulled

While the August 8 election and voting went on smoothly — and had been praised by observers — the tallying and transmission of results turned out to be a major issue after the Supreme Court on September 1 ordered a repeat election.

The order by Chief Justice David Maraga saw Mr Kenyatta castigate the Supreme Court and accuse it of instigating a “judicial coup”.

“The greatness of a nation,” Justice Maraga had said in his opening remarks, “lies in its fidelity to its Constitution and strict adherence to rule of law and above all, fear of God”.

The Supreme Court by a majority decision of Justice Maraga, Deputy CJ Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola ordered IEBC to conduct a new election – which cost Ksh12 billion ($116 million) – “in accordance with the principles laid out in the Constitution and the laws relating to elections” within 60 days.

Two judges, Justice Njoki Ndung’u and Justice Jackton Ojwang dissented, saying Mr Odinga had failed to prove claims that the polls were rigged in favour of Mr Kenyatta.

The two said the polls were free, fair and credible as described by international observers.

For her part, Justice Ndung’u said every election was faced with challenges and if they occurred, they were not deliberate or in bad faith.

While the ruling was supposed to open a fresh round of campaigning between Mr Odinga and President Kenyatta, the Nasa leadership made some new demands before they could participate in the race.

Nasa's demands

At first, they targeted the removal of both IEBC chairman Wafula Chebukati and Mr Chiloba before settling on the latter.

This was followed by a campaign to remove IEBC officers as Mr Kenyatta embarked on a new campaign.

Mr Odinga insisted that there would be no elections without reforms at IEBC.

He argued that he would only run against Mr Kenyatta if the IEBC met his “irreducible minimum conditions”.

The hardline stand taken by Mr Odinga — whose supporters held several demonstrations in Nairobi — brought confusion, since IEBC had gazetted him as the only challenger of Mr Kenyatta.

Jubilee Party was also wary that a withdrawal by Mr Odinga could lead to a constitutional dilemma.

The Jubilee Party mandarins, indeed, accused Mr Odinga of planning to quit — and according to Senate Majority Leader Kipchumba Murkomen — “to occasion a political crisis so he could precipitate the formation of a transition or coalition government”.

Meanwhile, one of the August 8 presidential candidates, Dr Ekuru Aukot, had gone to court seeking to be included in the repeat race.

A day before a ruling on his case was made, Mr Odinga formally withdrew from the race, hoping to force a repeat nomination.

Supreme court

Mr Odinga had wrongly pegged his hopes on a 2013 observation by the Supreme Court that “suppose ... a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date, then (the elections would be cancelled) with fresh nominations ensuing”.

While explaining his withdrawal, Mr Odinga said that “the implication of this provision is that upon our withdrawal, the election scheduled for October 26 stands cancelled (and) requires the IEBC to cancel the election and to conduct fresh nominations”.

It was a political mistake since he had jumped the gun.

Also, by the time he made his decision, legal minds were divided over whether the Supreme Court judges’ position — legally known as obiter dictum — was binding in law.

Protests

The next day, High Court judge John Mativo not only allowed Dr Aukot to run, but also resolved the obiter dictum question and scuttled Mr Odinga’s plan to stop the election.

The judge clarified that the paragraphs relied on by Mr Odinga in his withdrawal had no legal effect.

While IEBC went ahead to gazette all the candidates who had been nominated for the annulled election, Mr Odinga started a campaign of “no reforms no election” and told his supporters to stay away from the election, culminating in a boycott of the polls in former Nyanza counties.

On the day of the elections, Nasa supporters in Raila’s strongholds managed to stop IEBC officials from delivering vote materials.

Police battled the demonstrators and deaths and destruction were reported.

Legitimacy

While a total of 7.5 million voters managed to cast their votes in the fresh election — Mr Kenyatta’s victory had to await two court cases filed by Nairobi businessman John Harun Mwau and by two activists — Mr Njonjo Mue and Khelef Khalifa.

That opened a fresh battlefront for Mr Kenyatta but he won an early victory by locking out Nasa from the case.

Finally, both cases were dismissed by the Supreme Court, ending his political nightmare at the courts.

But his next battle will be with Nasa leaders who have vowed not to recognise his presidency, insisting they won the August 8 poll.

As he takes his oath, Mr Kenyatta knows that he will be presiding over a divided nation and his second term will need more than building bridges.