The Kenyan Dilemma: Balancing Constitutional Integrity and Political Realities

Hope and Despair

Since becoming a republic on 12th December 1964, Kenya’s political landscape has oscillated between optimistic epochs of a bustling democracy and dark interludes of authoritarianism. As with many African nations, ours started with the celebration of our independence from British colonial rule. But this joy waned fast when our first president, Jomo Kenyatta, started deploying colonial tactics to consolidate power. One such move was banning opposition parties in 1969 so that he could run in the elections unopposed. I was born many years later, long after Jomo’s death, when a wave of democratization was sweeping through the country. Kenyans were optimistically breaking away from the single-party state that Moi, Jomo’s successor, has subsequently entrenched, but their joys were soon extinguished as the ruling party used tyranny, terror and corruption to secure another decade of authoritarian rule.

When Raila Odinga and Mwai Kibaki joined forces to keep Moi’s protégé  – Uhuru Kenyatta, who was Jomo’s son – out of power in 2002, hope returned to the people. However, it took a single electoral cycle for despair to dispel that hope, as post-election violence ripped through the country in 2007 – 2008, taking over 1,300 lives. But sure enough, dawn came again with the promulgation of The Constitution of Kenya, 2010, which was celebrated as among the most progressive constitutions worldwide. But not long after, despair fell upon Kenya again as Jomo’s son got into power in 2013 via a bitterly contested and disputed presidential election, arm in arm with another of Moi’s sharpest and most ruthless protégés, William Ruto, who was also once an ally of Raila, as his deputy. The duo ascended into office while facing charges of crimes against humanity at the International Criminal Court (ICC) in The Hague for their participation in the post-election violence. And since their rise to power, the sun seems to have never risen again for Kenya.

Today, Kenya still languishes in this dark interlude that has now lasted too long. Although Ruto enjoys presidential authority that was validated by the Supreme Court, he doesn’t enjoy the luxury of being a unanimously accepted president. Tens of thousands of Kenyans around the country are now in the streets, protesting under the patronage of Raila. Raila, who is regarded by many citizens as the unofficial people’s president, is heralded even by his adversaries as Kenya’s most magnetic leader, yet he has failed to win a single presidential election. He has run for office five times, including in 2022.

Political Tensions

In the streets, Kenyans are crying out against the impacts of wanton institutional corruption, punitively high costs of living, increased taxation across multiple sectors, a disquieting encroachment of suspects and criminals into elective and appointive positions in government, retrogressive bills and legal amendments, and the ever-looming 2022 presidential electoral result. The situation on the ground remains dire: demonstrations are happening every Monday and Thursday, and trigger-happy police officers continue to take lives with the direct sanction of the highest seats of government. Recently, news media reported that a 4-month-old infant had suffocated to death after a teargas canister was lobbed into their house. They have also recently claimed that they have received reports of a possible broadcast and internet blackout ahead of tomorrow’s demonstrations. In addition, they have disclosed that leaked emails indicate that the police have also been instructed to not officially document injuries and killings during the demonstrations to be held tomorrow. On the other hand, demonstrators have previously been filmed resorting to crude weapons in response to police brutality, such as slings and catapults, which have recently taken the life of one police officer. These activities have resulted in deaths on both sides and hundreds of injuries overall. Kenya seems to have declared war on herself, and there seems to be no respite in sight. 

Beyond Electoral Disputes

Going into the next series of protests, it is crucial for Raila and his allies to separate the issue of electoral disputes from other social and economic challenges that the country faces. The fact is that the 2022 presidential electoral dispute has already been addressed in court, and the outcome was legally binding. Tying their displeasure for the Supreme Court ruling with other pertinent issues that plague the common man has only created confusion, especially amongst many protestors who still have faith in the justice system and the rule of law. Moreover, it has also provided a pretext for members of the ruling regime to discredit and dismiss the demonstrations as illegal and unjustified. This is increasing tensions within the country as people continue to feel the weight of economic devastation, and is making it harder for Kenyans to reach a consensus on the necessary steps to improve their condition. 

Raila must therefore consider adhering to the principle of constitutionalism and accept the Supreme Court’s long-declared verdict. This decision is grounded in the conviction that Kenya’s democratic institutions such as the courts remain capable of self-correction and reform, despite their imperfections. It will therefore foster a sense of trust in the country’s institutions, while also reducing the pressure that is propelling government officials towards the reactionary use of violent mechanisms of the state, such as plain-clothed policemen and other trigger-happy security apparatuses. Crucially, it will also allow Azimio to inhabit the role of the opposition more naturally, which is impossible while they are also claiming that they are the legitimate government.

Risky Demonstrations

While the ongoing demonstrations are a legal and fundamental cornerstone of our democratic society, they also carry significant risks for the country. Firstly, sinister government officials seem to be conducting criminal operations under the cover of these demonstrations. An unfortunate example of this occurred when the Dishonourable Kimani Ichung’wah, the Leader of the Majority in the National Assembly, was captured on video threatening to deploy targeted violence against Uhuru’s and Raila’s properties whenever the subsequent episode of the Azimio demonstrations would unfold. This threat was fulfilled merely hours later by goons who claim that they were offered less than $30 each for this task. 

Moreover, the potential for violence and loss of life keeps increasing every day, as the government grows bolder and the people get more frustrated. The unfettered police responses are pushing Kenya closer and closer to the tragic events that unfolded in 2007. This is regardless of the collective dread that still permeates through the country. The police, after all, murdered at least 40% of those who died during that post-election period, and today they are still being used by the government to infiltrate peaceful demonstrations and mete out cold-blooded violence to discredit and dismantle the demonstrations. 

To counteract these risks and reclaim their demonstrations, protestors must take several proactive measures. First, they should establish reliable organizational structures and communication channels. This is to continue to document events as they unfold, using social media to illuminate the activities of state organs and to disseminate accurate information. This will counter any false narratives being propagated by infiltrators or the government. Second, they must emphasize the peaceful nature of their demonstrations and refuse to condone violence or destruction of property. This can be achieved through the implementation of marshals or stewards, who can be selected amongst volunteers or grassroot political representatives to maintain order during protests. Lastly, protestors must assert that they are composed of representatives across diverse segments of society, including civil society organizations, labour unions, religious groups, and others. This will amplify their message, increase their legitimacy and make it more difficult for the government to discredit the protestors as merely a violent mob.

A Social Cancer

However, the elephant in the room remains that, as was witnessed in 2017, Raila can strike a deal at any time with Ruto as he once did with Uhuru, alienating the belligerent subordinates across both camps and abandoning the protestors who have skin in the game in the cold. I must also point out that Kenyan society must confront another social cancer at this moment. This cancer is that they have become desensitized to the social evils perpetrated by politicians. This has weakened their ability to condemn their leaders, and it renders them vulnerable to cycles of betrayal. After all, Raila still enjoys a massive following despite orchestrating the most infamous political betrayal in recent history.

As the Dishonourable Kimani Ichung’wah demonstrated, this cancer also manifests as an increased vulnerability to bribery, as the people can easily be paid peanuts to fight against their own interests. It seems that a sizeable fraction of Kenyans are currently being manipulated to sabotage these demonstrations, as they have been recorded brandishing crude weapons, destroying property and robbing passersby.

The intersection of tribal politics and corruption has also contributed to the metastasis of this cancer. It has made the public vulnerable to overlooking or endorsing the misdeeds of politicians from their own ethnic groups, at the expense of the collective good of the nation.

The blatant display of insouciance towards the lives of citizens by both the government at large and the police is likely due to our high tolerance for these evils, as they have always gone unpunished before. We are thus locked in a vicious cycle, where corrupt officials are emboldened to continue their misconduct, knowing that they are unlikely to face legal consequences, and the public continues to grow more cynical and government officials then continue to behave however they wish.

Strategies to address this cancer must begin with media-wide public awareness campaigns on ethical values, that must be practised first within our homes as we interact with children, to ensure that the current social tolerance for corrupt practices is not inherited by the next generation. This will guarantee the success of other strategies such as transformative judicial reforms, establishing and empowering ward-level anti-corruption bodies, deploying technologies to secure transparency and non-fungibility in government operations, promoting ethical, multipartisan leadership and meritocracy in electoral choices, empowering civil society organizations and media outlets to investigate, expose, and challenge corruption, and reducing poverty and economic inequality, which are the primary enablers of corruption and tribalism.

Strategies

For Raila, the identification of allies within the state apparatus is imperative. This is the surest way to protect vulnerable citizens who have placed their bodies on the front lines against a tyrannical state. It is also the only way to expose the corrupt and malevolent elements entrenched within the government, as they cannot be directly held accountable while being under the same government’s protection. While resembling a fifth column, this method draws inspiration from the country’s rich history of top-down activism, where several key players who initially held positions within the Moi government, such as Kenneth Matiba, Charles Rubia, and Raila Odinga himself, shifted allegiances and fought for multiparty democracy. For Raila to have a real fighting chance, individuals within Ruto’s ruling coalition must also push for reforms from within. If the stars align, they may even collaborate with international mediators to set the stage for genuine bilateral dialogues between these two, who are the most powerful politicians on the land.

Ultimately, the most effective approach to confronting a rogue and corrupt regime will depend on the sustained commitment and resilience of all players who are committed to the principles enshrined in the Constitution.  Unfortunately for Kenyans, these players will inevitably be led by political actors, who we can only hope will engage in constructive dialogue and pursue genuine reforms, rather than sign shady backroom deals and create an untenable truce.

Ultimately, the path towards a hopeful and more prosperous future for Kenyans must cut across this complex terrain that politicians have led them to. Kenya will see a new dawn only if Kenyans remain guided by a steadfast commitment to the enduring values of democracy and justice. Although upholding constitutionalism is a slower and more arduous choice, it provides the best long-term prospects for restoring the integrity of democratic institutions and fostering national unity. Alternatively, while radical approaches may yield immediate results against a rogue state, this will be at the cost of potentially undermining the very foundations of the constitutional order they seek to protect.

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[Update: As of 18:00hrs 02-04-2023, Raila Odinga has recently made the announcement to call off the Monday mass protests after being publicly implored by Ruto. A deal may just have been struck!]