The Kenyan Election: An Insight into the Effectiveness of Constitutional Guarantees
Duncan Okubasu Munabi 10th August 2017

Kenya held its general elections two days ago, after a period of aggressive political campaigning. This election, there are two major political parties, the Jubilee Party (Jubilee) (sponsoring President Uhuru Kenyatta), and the National Super Alliance (NASA), a coalition of political parties, sponsoring Raila Odinga. Jubilee is a dominant party in the former Central and Rift Valley Provinces occupied by the Kikuyu and Kalenjin ethnic groups. NASA is popular in former Western, Nyanza and Coast provinces. These regions are occupied by the Luo, Kisii, Luhya and Mijikenda Communities. Political competition has been ferocious between the Luo and Kikuyu since independence, and the 2017 general elections are no exception. Raila Odinga of NASA is a Luo and Uhuru Kenyatta of Jubilee is Kikuyu. In sum, the campaigns in Kenya have showed, just like in most parts of Sub-Saharan Africa, that politics are mobilised along ethnic lines, and this has implications for the effective realisation of political rights.

Regarding political rights, is a Luo “free” to join Jubilee Party and participate in its activities in Kikuyu land? On paper, yes, but in practise, the answer is unlikely to be in the affirmative. Indeed, there are Jubilee Party candidates among the Luo, but whether they are indeed free to participate in the Party’s affairs is a different question altogether. That is also the case with a Kikuyu participating in NASA affairs in Jubilee strongholds. Because of the culture of violence associated with ethnic hatred, participation of a Luo in Kikuyu Jubilee strongholds is inconceivable, as would be a Kikuyu participating in Jubilee politics in NASA strongholds. If indeed, as has been witnessed, NASA and Jubilee leaders, including the President, are “booed” or assaulted, how much more exposed to political violence are ordinary citizens? This helps to explain the apparent absence of Kikuyu NASA candidates in certain, if not most, Jubilee strongholds, and vice versa. Whereas the Constitution protects the right to make political choices, it cannot shield one from opprobrium and likely violence based on belonging to a party that is not associated with a certain ethnic group.  Indeed, Kenyans have been reported to be fleeing Nairobi, Kenya’s capital, in fear of poll clashes. This shows that individuals are afraid of exercising their political rights, the fact that those rights have been constitutionally entrenched notwithstanding. This means therefore that, for an individual, the right to make political choices varies in practice across ethnic regions, and its beneficiaries are delimited not by the Constitution, but by ethnicity.

Perhaps the most intriguing interplay between constitutional values and the mobilisation of politics along ethnic lines in Kenya can be seen in political attacks on institutions meant to apply or enforce the Constitution, such as the Independent Electoral and Boundaries Commission (IEBC) and the judiciary. Attacks on IEBC have assumed the form of verbal of political assaults towards top IEBC officials and, on one occasion, the ugly killing of one of IEBC’s top officials. Courts have also been subject to sustained attacks by the ruling Jubilee Party, including from the President himself. Jubilee has threatened the judiciary, and so has the NASA, which has asked an appellate court not to entertain an appeal from a lower court. The thought-provoking interconnection between ethnicity and these attacks is that, regardless of the effect they have on the independence and working of these institutions, they are viewed as deserved by political factions depending on the ethnicity of the subjects or objects of the attacks. As a result, even in cases where there has been a clear breach of rules set down in the Constitution, an attempt by an institution to enforce these values results into partisan ethnic public support and excoriation in almost equal measure. In fear of condemnation and negative ethnic profiling, actors in independent institutions become timid towards enforcing obligations arising from the Constitution.

The overlap effect of such a scenario is that it precipitates general constitutional neglect and reliance, even by institutional actors, on political ethnic kingpins. Commitment to constitutionalism depends on whether it promotes the partisan interests of political elites or not. Both the NASA and the Jubilee Party have expressed their willingness to concede defeat if the elections are free and fair. Yet they do not seem prepared to defer to the institutions responsible for conducting elections or determining electoral disputes. If Jubilee or NASA leaders condemn the elections as not being free and fair elections, their ethnic followers are likely to adopt that position too. In such contexts, violence and disintegration of the legal and political order become very likely, despite the presence of a well drafted Constitution.

Author profile

Duncan Okubasu is an Advocate of the High Court. He is also a lecturer at the Department of Public Law, at Moi University.

Citations

Duncan Okubasu, “The Kenyan Election: An Insight into the Effectiveness of Constitutional Guarantees” (OxHRH Blog, 8 August 2017) <http://ohrh.law.ox.ac.uk/the-kenyan-election-an-insight-into-the-effectiveness-of-constitutional-guarantees> [Date of Access]

Comments

  1. Maxwel miyawa says:

    Deference to institutuons conducting elections is dangerous and futile at this time. Deference to institutions of electoral dispute resolution advisable though largely problematic due to internal and latent Judicial dynamics that we know of.

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