Raila Odinga of the National Super Alliance, Kenya’s main opposition party, has withdrawn from next week’s fresh presidential election which was ordered by the Supreme Court after it nullified the earlier election held on August 8.

That decision won’t stop the election: Uhuru Kenyatta, the incumbent, seems desperate to hold it at any cost — but it will deepen the political crisis. With time, that crisis will inevitably morph into a constitutional crisis.

Mr Kenyatta’s party is jubilant. The Jubilee members dismiss Raila’s move as the antics of a loser who knows that Jubilee won the earlier election and now fears he will lose yet again.

It is a naïve and self-indulgent view that ignores Mr Odinga’s genuine grievances against the bumbling, probably compromised Independent Electoral and Boundaries Commission (IEBC) and the dangers, fleshed out below, that this boycott might unleash.

First, the election will not resolve the political crisis in Kenya, which is feeding off growing polarisation, both political and social.

Second, the crisis followed by what must be, at best, a partially legitimate election will further test Kenya’s still fragile institutions which have already been sorely tested by corrosive corruption and impunity.

Third, electoral boycotts are unpredictable affairs and they can be as damaging to those participating in the elections as to those who stay out.

Panglossian view

There are those who doubt that Kenya is in a political crisis. They say naively, that this is an electoral crisis, which will dissipate as soon as elections are held. This Panglossian view ignores the fact that Kenya has never fully addressed the causes of the deadly violence in 2007.

True, the Constitution was part of the solution. Its goal was to create an inclusive society and devolution has certainly funnelled resources to counties that were ignored for years.

Unfortunately, historical inequalities remain widespread and the ethnically sour politics that these generated have seeped into electioneering.

Political power remains concentrated and ethnicised and the “relay-race” state dominance of the Kikuyus and Kalenjin rankles everyone outside Mount Kenya and the central highlands of the Rift Valley. An absinthial bitterness that power is a patrimony of two ethnic groups colours how political factions shape out.

The usual answer from the government is that the Constitution sets up institutions to deal with this: separation of powers, an independent judiciary and IEBC, so what crisis? A crisis is a dangerously destabilising political problem that existing institutions cannot resolve and one that leaders are unwilling or unable to do anything about.

For some reason — perhaps including malignant neglect — the Constitution’s newly minted institutions do not have sufficient power and authority to unlock the crisis.

One reason is that they lack the authority that tradition and longevity confers. A second is that no constitutional body is seen as fully legitimate by all political actors.

As regards checks and balances, the truth is that this is rapidly unravelling. The Executive is paralysed because it is the prize of the divisive political contest in the first place. Jubilee controls the Legislature so Nasa sees parliament as a hostile space.

The line of crisis

Jubilee does not control the Judiciary, even though it has tried to. Knowing that Jubilee is frazzled by independent judges, Nasa sees the courts as safe spaces for political contests. That, in turn, makes the courts stalking horses for the opposition as far as Jubilee can see.

That then draws the line of crisis: Jubilee will use parliament to make the laws it needs to run the country as well as control and contain the opposition. The opposition will, as frequently as such laws are made, challenge them in court.

In the nature of things, some of these laws will be struck down, eventually converting what started off as a political crisis into a constitutional one. Parliament and the Executive will attack the courts and could retaliate by fiscally starving the courts through budget-making.

This institutional crisis is compounded by clashes between Mr Kenyatta and Mr Odinga. The Odingas and the Kenyattas have an antipathy that is genetic in intensity. It goes back to the 1960s when their fathers fought for the soul of the Kenya African National Union, Kanu, the party of Independence.

Power versus legitimacy

Kenyatta won the legal fight and, with it, the state and its accoutrements. Odinga won the moral fight. What he lost in power he gained in legacy, bequeathing Raila with a name synonymous with the struggles of the common folk.

Heirs of these conflicting legacies, Raila and Uhuru are as divided as their fathers. Every contest between the two opens old wounds and refracts every new problem through the prism of the old.

In this battle of the princes that would one day be kings, history clouds how one sees the other. Mr Kenyatta is a phone call away from Mr Odinga. Not doubt Mr Odinga has Mr Kenyatta’s phone number. And still they taunt and scoff at each other through TV microphones and loud-hailers at political rallies.

Their supporters are divided as their leaders are, and more so than the followers of any other two contestants in the multiparty era. It is political heresy to praise Uhuru in the Nyanza region or Raila in the central region of Kenya.

President Uhuru Kenyatta (left) and Opposition leader Raila Odinga. Mr Kenyatta is a phone call away from Mr Odinga. Not doubt Mr Odinga has Mr Kenyatta’s phone number. And still they taunt and scoff at each other through TV microphones and loud-hailers at political rallies. PHOTO | AFP

Forces of decline

Even when Uhuru is crowned after the 26th, which — barring the unforeseen — is what it seems set to be, long-term instability is inevitable. The institutional and personal conflict is part of a larger reality of state decline. That decline appeared to have been arrested though not eliminated by the new Constitution.

Two things have rekindled the forces of decline: government contempt for constitutional limits and increased misuse of the State as a tool for personal gain.

Take the first point. Since the new Constitution was enacted in 2010, there has been a callow thought that law will solve all intractable problems.

Political difficulties have been reinterpreted as problems of administration with clear solutions in statutory formulae. The nightly news in Kenya now bristles with commentators, mostly lawyers, jabbering away about legal solutions to every crisis the country faces.

This naïve faith in legality has led the public astray by making what is politically difficult look technically easy. What the commentariat often fails to grasp is moral principle that lurks behind the constitution: the commitment always to obey the Constitution even when, as now, it hurts the regime’s vital political interests.

This, the willingness to obey a legitimate law that one doesn’t like, is central to constitutionalism. It is what Justice Learned Hand was talking about in his 1944 Spirit of Liberty speech. “Liberty,” Hand said, “lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it; no Constitution, no law, no court can even do much to help it. While it lies there, it needs no Constitution, no law, no court to save it.”

Unfortunately, Kenyans have treated the Constitution as a perpetual motion machine that will work of its own accord, restraining the government if it went rogue whilst protecting their rights in an eternity of constitutional bliss.

Criminal economies and violent politics

Unfortunately, this is another case of naivety. History should have taught us that over time, the state — like the law — is itself a vehicle to protect the interests of the powerful.

The promise of power in Kenya is that those who win will bend the law and the economy to personal pursuits. Though this philosophy changed a little under Mwai Kibaki’s regime, the use of the State as an instrument of the ruling power is that Kenya now has a government without restraint.

One of the results of this is a growing “criminal” economy divided into two: a racket economy of corruption, budget-raiding and money laundering and a bandit economy of drug running, protection-rackets and cattle rustling. Big commercial contracts with government are personalised and clandestine, defeating all the theories of an open market.

The problem for Kenya’s politics is the reality, as seen in the DR Congo, Congo and Zimbabwe, that criminal economies and violent politics go hand in hand.

Illegitimate businesses cannot abide strong institutions. Kenya’s politics, like its corrupt and criminal syndicates, straddles the lawful and the unlawful. Half of what happens on the stumps is perfectly legal but the other half is perfectly unlawful: open vote buying and political murder, for example.

What this crisis — compounded by illicit money and weak institutions — portends, is Kenya’s inevitable slide into a “warlord democracy,” a country in which who gets into office will be determined through violence — whether that violence is “official” or purveyed by private militias.

After the election on October 26, there will be no more pretence that there is normal politics in Kenya. Jubilee will flute its new “mandate” and Nasa its moral authority of staying away from a compromised election.

Inexorably, Kenya will come to a stand-off because neither Mr Kenyatta nor Mr Odinga responds well to threats. Mr Kenyatta is temperamentally incapable of restraint and his fragile pride is easily wounded.

Mr Odinga has been toughened by years of struggle in the rough. He feels that he has earned the right to a seat at any table where the future of Kenya is discussed.

After October 26, Mr Kenyatta will bring out the police and brutalise Raila’s base. It is unlikely to cow Mr Odinga or his supporters. Unfortunately, few countries can sustain a cycle of protest and violence.

The immediate risk is to the economy. Domestically, the inevitable decline in economic activity will undermine revenues and increase unemployment — especially youth unemployment — and ratchet up social stress.

Externally, weak revenues will undermine interests payments on our growing external debt. Kenya’s sovereign rating will be downgraded even more, raising interest payments further.

READ: Economy hurts as Kenyan political stalemate holds

Undermining security morale

The medium-term risk is how long the protests last. State violence works best as a deterrent but it loses its power to deter after a certain period. The rank and file of the army and the police are drawn from the underclass.

Unleashing them regularly on poor protesters eventually undermines morale and fragments both the police and the army into partisan militias. At that point, one of either Mr Odinga or Mr Kenyatta must buckle.

Kenya's police officers clash with opposition supporters taking part in the anti-IEBC protest in Kisumu on October 9, 2017. Unleashing the police regularly on poor protesters eventually undermines morale and fragments both the police and the army into partisan militias. AFP PHOTO

There are those who will think this outlook too grim. And point out that by staying out of the election, Mr Odinga has frittered away his legitimacy and strengthened Mr Kenyatta’s hand.

That is a hopeful view with slender support from experience. Electoral boycotts are notoriously unpredictable. They often hurt those who call them as much as the incumbents who ignore them.

Sometimes a boycott precipitates a terminal political crisis that drives incumbents out of office. In 1994 a seemingly minor dispute over a by-election in Bangladesh provoked a stand-off between the government and opposition.

First, the opposition boycotted and then resigned enmasse from parliament. Mediation by the Commonwealth failed. The opposition then boycotted elections called in 1996. With voter turnout at 21 per cent, the government lost popular legitimacy and a series of protests forced a repeat election and a caretaker government in a matter of months.

Some incumbents cope better. They are not only able to win but — as happened in Burkina Faso in 1991 with Blaise Compaore and in Togo with Gnassingbe Eyadema in 1993 — they are able to undermine and destroy the opposition, at least for a while. But there is a salutary lesson in the fact that though Mr Eyadema died in office in 2005, Mr Compaore was ignominiously driven out of office in 2014.

Finally, a boycott could precipitate a broader constitutional crisis. This was the case in Thailand in 2006. The opposition rejected the results of the election. The election itself was invalidated by the constitutional court, a decision that forced the Electoral Commission to resign with some commissioners eventually jailed for illegalities committed during the elections. The resulting crisis forced a fresh election in October, 2006.

Any of these three things or a combination could happen. However, the opposition will almost certainly survive: Nasa’s core support is unlikely to dissipate or cross over to Jubilee.

The truth is that in the medium-term, Kenya won’t stabilise without Mr Kenyatta and Mr Odinga coming to some agreement. What exactly that is, will depend on how far into the crisis they choose to talk.

The more blood that is shed the higher the stakes will be and the more that will have to be on the table — including power-sharing much as the talking heads scoff at the idea- to make any deal acceptable.

It is not a happy thought. But Mr Kenyatta and Mr Odinga can talk and agree now. There is no reason why the spilling of the ink must await the spilling of the blood.

Wachira Maina is a constitutional lawyer.