JURIST Guest Columnist M. Patrick Yingling, formerly of Kenya's Moi University School of Law, says that the fear of corruption and violence raises the stakes in Kenya's upcoming election higher than ever...
On March 4, 2013, Kenyans will go to the polls to elect the country's fourth president. The election is widely seen as Kenya's most important to date. The importance of the election, however, is not necessarily tied to which candidate wins the most votes. Rather, the importance of the election is tied to whether voting will lead to violence, and whether democracy will lead to anarchy.
This fear of violence is really the fear that history will repeat itself. The violence following the 2007 election was devastating for Africa's bellwether. In the lead-up to the presidential election, the opposition candidate, Raila Odinga, seemed destined to defeat the incumbent, Mwai Kibaki. As the regional constituency votes were tallied, this expectation appeared to become a reality. However, when the constituency votes were finally added to the national total, Kibaki had won by a narrow margin. In one district, the vote for the incumbent was first announced as 50,145 before being entered as 75,261 in the final tally. In another district, turnout was first shown at 115 percent, but was later changed to 85 percent.
Obvious electoral impropriety triggered the violence. Targeted ethnic violence escalated initially against the Kikuyu people, the community of which Kibaki is a member. The violence peaked with the killing of over 30 people in a church near the Rift Valley town of Eldoret on New Year's Day 2008. Some Kikuyu coalitions also engaged in retaliatory attacks against individuals supportive of Odinga largely members of the Luo and Kalenjin communities in the towns of Naivasha and Nakuru. After more than 1,000 deaths, peace was finally brokered in an agreement negotiated by former UN Secretary-General Kofi Annan. Odinga became Kenya's first prime minister, allowing Kibaki to stay in power as president.
As a result of the post-election violence, four Kenyans will stand trial before the International Criminal Court (ICC) in The Hague on charges of crimes against humanity. Two of those charged, Uhuru Kenyatta and William Ruto, are former political rivals who recently joined forces to run on the same ticket for president and vice-president, respectively. The latest polling data shows Kenyatta and Ruto in a close race with Odinga and his running-mate, Kalonzo Musyoka. Kibaki is barred from running for a third term under the Constitution of Kenya.
The post-election violence in 2007 and 2008 was fueled by tribalism, but it was also closely tied to government corruption. Since independence in 1963, Kenya has fought (and lost) many battles with corruption. Government officials have been able to divert public funds for private purposes with impunity, distributing resources discriminately based on tribal affiliation. Due to a lack of checks on government power, the election of 2007 was seen as a matter of life and death. The potential beneficiaries of power were driven to extremes.
In the aftermath of the post-election violence, Kenyans made real efforts to combat corruption. These efforts culminated in 2010 with the adoption of a new constitution. The revised Constitution of Kenya provides for greater checks on power, especially between the branches of government. Checks and balances are necessary to achieve reduced levels of corruption. However, they are not always sufficient. The effects of new restraints are not always immediate. According to Transparency International's Corruption Perceptions Index of 2012, Kenya is still perceived to be a highly corrupt country, occupying a rank of 139 out of 176, only a slight improvement from its rank of 154 in 2010.
Thus, Kenyans still have reason to believe those in government will abuse power. This means that the stakes for this election are high, as is the likelihood of violence. However, a repeat of 2007 is not a foregone conclusion. Although the potential for violence is real, peace may still prevail. In 2007, violence was triggered by the perception of electoral misconduct by the incumbent administration. In 2013, however, the incumbent is barred from seeking re-election. The president has also declined to endorse a candidate. Therefore, there is less of an incentive for electoral misconduct. The trigger for violence could remain un-pulled.
Another factor to take into account is that the post-election violence of 2007 and 2008 was a source of embarrassment for many Kenyans. The violence erased the country's status as a stable democracy in a conflict-prone neighborhood. The awareness of the set-back was obvious during country's first ever presidential debate last week, as the candidates spent a significant amount of time condemning tribalism, corruption, and violence.
Let us hope that the candidates mean what they say. The next few days will tell all.
M. Patrick Yingling was a Visiting Lecturer at Moi University School of Law in Eldoret, Kenya in 2011. He is a 2011 graduate of the University of Pittsburgh School of Law.
Suggested citation: M. Patrick Yingling, Kenya's Elections: Africa's Bellwether at a Crossroads, JURIST - Hotline, Mar. 3, 2013, http://jurist.org/hotline/2013/03/m-patrick-yingling-kenya-elections.php
This article was prepared for publication by John Paul Regan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com