Disrespecting apex court could plunge Kenya into ‘hegemonic instability’

Kenya has a rendezvous with destiny on September 5, when the Supreme Court will rule on the validity of the August 9, 2022 presidential election. For three decades, we have voted peacefully and in large numbers.

But power tussles over vote counting have prevented us from joining the league of the world’s democracies. East Africa’s largest economy has been trapped in the politics of interregnum, where the old order is dying and the new has refused to be born.

The verdict of the court must be respected by all and sundry. That is the only pathway of ensuring that Kenya is not engulfed in what scholars have theorised as “hegemonic instability.” The heavy rhetoric and acrimony ahead of the court’s hearing have turned a sharp spotlight on the ‘hegemonic stability theory’. This is the idea that the international system is more likely to remain stable when a single state is the dominant world power or hegemon.

Kenya is widely considered a regional power in Eastern and Horn of Africa. It is expected to use its greater economic, military, political and diplomatic influence to shape the fortunes of its fragile neighbours. Conversely, should Kenya succumb to civil conflict over the elections, the ripple effects of its instability would be felt across the region and beyond.

Nullify the victory

The die is cast. The Supreme Court has to rule on the plea by former Prime Minister Raila Odinga and Azimio to nullify the victory of President-elect William Ruto. The Azimio brigade claims the Independent Electoral and Boundaries Commission (IEBC) manipulated the election to favour Ruto and that the president-elect did not garner the 50 per cent plus one vote required for a candidate to be declared the winner.

Azimio further argues that the IEBC cannot account for 250,000 votes, excluding those cast by voters who were identified manually, and that IEBC chairperson Wafula Chebukati announced the outcome of the presidential vote without tallying and verifying results from 27 constituencies, which they believe would have shaped the final tally.

Odinga and his running mate are asking the court to, among other things, order the IEBC to tally and verify the vote and declare them President-elect and Deputy President-elect. They are invoking Section 80(4)(a) of the Elections Act, which gives powers to the court to order the IEBC to issue a certificate to the losing candidate after a recount of the ballots cast finds that the petitioner actually won, thus avoiding a repeat poll. They are also demanding a forensic audit of all equipment, systems and technology used by the IEBC in the presidential election and Chebukati to be declared unfit to hold public office.

Propaganda blitz

Worryingly, the road to September 5 is a minefield of misinformation and threats by social media and party wonks. With the ongoing heavy propaganda blitz against the IEBC and its chairman, the war on democratic institutions is total. Will the Supreme Court’s verdict be respected?

Unbeknown to many, the real logic of the perennial post-election paralyses is the pressure for executive power-sharing between losers and winners. As such, Kenya’s elections have evolved into a protracted zero-sum battle for state power that starts at the ballot, then moves to the Supreme Court and ends in the streets.

The rationale for post-election mayhems is to use the legitimate tools of democratic expression such as protests underhandedly to get the winner in elections to share power with the losers formally or informally (famously known as the “handshake”).

Power-sharing has become the real end-game of elections. Soon after the 1997 General Election, Raila Odinga’s National Development Party (NDP) left the opposition and entered into a ‘co-operation’ with the ruling Kanu that morphed into a ‘merger’, a power-sharing arrangement within the context of the ‘New Kanu’ on March 18, 2002.

The exception was the 2002 presidential election, where Uhuru Kenyatta of Kanu conceded defeat by Mwai Kibaki of the opposition National Rainbow Coalition (Narc).

In the 2007-2008 scenario, Kibaki won but was forced to share power after protests and violence resulted in the deaths of more than 1,000 people and the displacement of up to 600,000.

The National Accord and Reconciliation Act (2008) ended the violence and created a Grand Coalition Government with Odinga as Prime Minister.

Civil resistance

One popular approach, largely campaigns of civil resistance in Ukraine in 2004, is where the loser is defiantly sworn in as a “people’s president”, followed by massive mobilising of protesters and a grand match to State House as part of a  swarming strategy to overwhelm and replace the ‘official president’ in a civilian ‘coup’ style. On January 30, 2018, Odinga had himself sworn in as the “people’s president” in the presence of thousands of supporters at Uhuru Park, ultimately leading to a peace deal with Kenyatta.

Handshakes have undermined bona fide opposition movements, replacing them with mongrel systems in which the dividing line between the opposition and the government is visibly blurred.

The 2010 Constitution, inaugurated to stabilise the polity, created the Supreme Court of Kenya as the highest court in the land and a sharp instrument of resolving post-election disputes.

The new court was palpably tested in 2013 when Odinga rejected Uhuru Kenyatta’s narrow win and petitioned it to annul the results. The apex court upheld Kenyatta’s victory, but revealed the risk of narrow loser-winner margins.

Ruto is opposed to power-sharing or “nusu mkate”. But the 2022 scenario is even more complex. Kenya Kwanza pundits argue that Ruto’s real nemesis in the Supreme Court is not Raila Odinga, but the incumbent, Uhuru Kenyatta.

 “Mr President… You are the one who has taken us to the Supreme Court,” said the fiery Kiharu MP Ndindi Nyoro on August 25.

UDA pundits lament that although other African heads of state have sent congratulatory messages to Kenya’s president-elect, Kenyatta has not congratulated Ruto. Kenya’s partners are wary that this complex three-way supremacy war risks pushing Kenya deeper to ‘hegemonic instability’.

Kenya’s external partners have praised the August poll as “peaceful and orderly”, underlined a peaceful Kenya as an important contributor to a prosperous and peaceful continent and urged all the parties to preserve peace, resolve all disputes through existing competent legal mechanisms and to urge their supporters to remain peaceful and refrain from violence.

Prof Kagwanja is a former Government Adviser and currently the Chief Executive of  Africa Policy Institute. He’s also Adjunct Scholar at the University of Nairobi and the National Defence University – Kenya.