By Nic Cheeseman, Gabrielle Lynch and Justin Willis
Corresponding email: firstname.lastname@example.org
Leeds African Studies Bulletin, No. 80, Winter 2018/19, pp. 22-29
On 8 August 2017, Kenyans went to the polls to cast six ballots: for president, governor, senator, women’s representative, Member of Parliament (MP) and member of county assembly (MCA). However, national and international attention largely focused on the presidential race. Although a number of opinion polls had suggested that the incumbent, Uhuru Kenyatta of the Jubilee Party was slightly ahead, his main challenger Raila Odinga, the candidate of the National Super Alliance (NASA) coalition appeared to have greater momentum as a result of forming a more united opposition that brought together both the Kamba leader Kalonzo Musyoka and the Luhya leader Musalia Mudavadi – who had stood against Odinga in the previous election. Overall turnout was high at 79.5 percent of registered voters, reflecting widespread political engagement and the both candidates were able to make credible claims to their supporters that, if they went to the polls, they would be rewarded with access to power. On 11 August, after a tense and disputed counting and tallying process, Kenyatta was declared the winner with 54.2 percent of the vote as compared to the 44.9 percent received by Odinga. When the result was announced, it was immediately denounced by Odinga and many of his supporters as a fabrication (Daily Nation, 9 August 2017).
In many ways, this followed a familiar pattern. The two main contestants – Kenyatta and Odinga – were the same as in 2013. Moreover, as in that contest, this was a two-horse race. The Jubilee party brought together the disparate parties that had formed the Jubilee coalition in 2013; NASA was similar in composition to the CORD coalition of 2013, though with the addition of Mudavadi. Jubilee was led by individuals from the only two ethnic groups to have held the presidency since independence – the Kikuyu and the Kalenjin. NASA (like CORD) saw itself as representing Kenya’s economically and politically marginalised communities. The campaign also bore other similarities to the past. As in the last three elections, the presidential race was extremely close, and supporters of both candidates went in to polling day thinking that their candidate had a chance of victory. The parallels to previous polls don’t stop there. As in 2013 – and 1997, and 1992 – the incumbent president was declared the winner amidst controversy (Cheeseman, Lynch and Willis 2014). The aftermath of the election was also eerily familiar. Just like in 2013, the electoral commission began the polls with a credibility boost as a result of new staff and the use of new election technology, only to rapidly lose public confidence when the counting of votes began. The decision of the opposition to denounce the polls was also unremarkable – only one election (in 2002) has been accepted by the losing party since multiparty politics was reintroduced in the early 1990s.
But as well as important continuities there were also some major changes. The 2017 election also broke new ground in two important ways. Most obviously, for the first time in Kenya and indeed in Africa, the election of a sitting president was nullified on 1 September 2017, when a majority of Supreme Court judges ruled that the presidential election was illegal, null and void and ordered a repeat poll (Kanyinga and Odote, unpublished). This “fresh” election was held on 26 October but was boycotted by Odinga and NASA who argued that – with the same officials and many of the same procedures in place – the repeat election would be “stolen” from them once again (Daily Nation, 20 October 2017). The boycott included telling NASA voters to stay away from the polls and, in some of Odinga’s heartlands, his supporters also sought to block access to polling stations to derail the process. This has a profound impact on the outcome of the re-run poll, as Kenyatta was declared the winner with 98.3 percent of the vote on a turnout of just 39 percent. Once again, opposition leaders refused to recognise Kenyatta as a legitimately elected president, but this time the Supreme Court upheld the result. The Court’s verdict did little to end the controversy, and opposition leaders mobilised their supporters to protest Kenyatta’s inauguration. In total, the demonstrations against the conduct of the election, and the unnecessarily heavy handed response of the security forces, resulted in the death of at least 97 people nationwide (HRW, 25 February 2018).
Less obviously, this was the second election to take place after a new constitution was introduced in 2010 – a constitution that was widely perceived to have the “potential to transform Kenya’s politics” (Kramon and Posner 2011, 89) – and the first election to take place in a context in which people had practical experience of the powers of the new elected posts of governor, senator, women’s representative and MCA that had been created. The devolution of resources and service delivery to 47 new county governments lay at the heart of Kenya’s constitutional experiment. In accordance with the “classic arguments put forward by proponents of decentralisation” (Steeves 2015, 460), this was meant to bring government closer to local people, increase public participation and accountability, promote social and economic development, ensure a more equitable distribution of resources, protect and promote the interests and rights of ethnic minorities, and foster national cohesion and unity. These aims were informed by a widespread belief that the post-election violence of 2007/8 was fuelled by excessive competition over the presidency in the context of an ethnicized, winner-takes-all political system (Mueller 2008). Against that backdrop, devolution was designed to reduce the powers of the presidency and facilitate a more equitable distribution of resources by moving both money and responsibilities to a county level. The hope was that this would direct the attention of voters and candidates away from the presidency to sub-national contests (Akecy 2010).
Given this, the 2017 elections represent an excellent opportunity to ask some searching questions about Kenya’s new political dispensation: Has devolution decreased the powers of, and electoral attention given to, the presidency? Has it brought about a broader change in the way voters evaluate candidates and thus reduced the salience of ethnic identities? And has devolution created an independent and influential new layer of political activity? These questions have important implications for whether or not national cohesion and stability have been enhanced, and the prospects for democratic consolidation in the future.
Devolution in practice
Given the patchy implementation of formal institutions in East Africa (Cheeseman 2018), it is perhaps not surprising that the reality has proven to be more complex than either the “devooptimists” or the “devo-pessimists” predicted (Cheeseman, Lynch and Willis 2016). Kenya’s new county governments clearly enjoy significant powers: they oversee such important issues as health and local roads, receive a constitutionally-mandated minimum of 15 percent of the government revenue each year, and just over 20 percent in practice, and enjoy additional (albeit limited) revenue-raising powers. Each county has an executive governor and ‘cabinet’, and, irrespective of party affiliation, governors have determinedly defended their authority and budgets against encroachment from the national government. Each county also has an assembly – the latter comprised of elected MCAs, who can make local laws and, crucially, oversee the spending of the budget by the executive and collectively impeach the governor. Other countylevel posts include a women’s representative for each county who sits in the national assembly alongside MPs, and a senator who sits in the upper house of the national parliament, which scrutinizes national legislation that may affect county governments.
Yet it is unclear how far this change has transformed the underlying realities of political competition. On the one hand, some have argued that the continuing power of centralized security services vitiates the reforms (Hassan 2015) and that the 2013 elections – the first held under the new constitution – simply ‘entrenched status quo politics’ (Shilaho 2013). However, those polls were really the beginning of devolution, not a test of its consequences (Harbeson 2014), and the distribution of revenue to the county governments created in 2013 has since been identified as a ‘game-changer’ (Kanyinga 2016). Moreover, more recent analyses have argued that patronage politics have been devolved in a way that does not necessarily reduce corruption but does change the dynamics of politics (D‘Arcy and Cornell 2016). In these arguments, the positions of county governor, and that of MCA, are typically identified as the crucial focal point in the new system, with some predicting that, in 2017, the gubernatorial races would be fought with even greater intensity than the presidential race (Cheeseman, Lynch and Willis 2016; Steeves 2016). Such forecasts were particularly significant because they hinted that devolution might just achieve the ultimate prize: shifting attention away from the presidency, reducing the stakes of general elections, and thus reducing the threat that political competition poses to national cohesion (Ghai 2008).
Now that the dust has started to settle on the elections, it is clear that devolution has changed Kenyan politics in important ways, but also that it has yet to generate the far-reaching transformation that some of its most passionate advocates had hoped. It is true that devolution has created an important new layer of political activity: new county level posts enjoy influence and attract significant interest from aspirants and voters alike; and in some important respects county level governments act as a check on their national counterpart. However, while this may boost political stability and inclusion by turning national losers into county winners, it can also exacerbate centrifugal pressures if these actors reject the centre’s legitimacy and work to undermine public trust in the wider political system. This is particularly true in Kenya, as devolution has devolved rather than transformed popular expectations of political leaders, who are typically judged on their ability to meet the parochial expectations of their constituents and co-ethnics – in terms of both assistance and defence of collective interests – rather than their contribution, or adherence, to national laws or regulations.
Most notably, once the opposition had rejected the election result and Kenyatta’s right to rule, a small number of radical voices within the NASA community began to reject the legitimacy of the Kenyan state. During this period, county-level structures played an important role in NASA’s protests, both in terms of providing legislative and financial support to Odinga’s idea of forming a new “people’s assembly” to represent opposition concerns, and in terms of calling into question the continued existence of the country as a single national unit. For example, at the Coast – which has voted for Odinga in the last three elections by a ratio of about 2 to 1 – it was Mombasa Governor Ali Hassan Joho who made headlines by stating that, along with a number of other elected politicians in the region, he would campaign for secession from Kenya (Standard Digital, 18 February 2018). In the process, Joho apparently – if only briefly – offered endorsement to a secessionist movement that has been intermittently active since independence (Willis and Gona 2012). The implication is that a political framework that forces governors to be responsive to the hopes and fears of their supporters may generate centrifugal pressures as well as integrative ones when popular opinion turns against the political system (Waddilove, unpublished). The design of devolution in Kenya anticipated this, creating a large number of counties to prevent any one being able to break away on its own and remain economically viable. But when all of the counties in a given area are controlled by the opposition – as, for example, in Nyanza – the potential for effective collective mobilization against the state significantly increases.
To some extent, the potential for secession is also ameliorated by the second factor that has implications for effect of devolution: the continued focus on the presidency – and hence of control of a unitary Kenyan state – as the ultimate political prize. There are two main reasons for this. First, the presidency continues to enjoy the greatest economic and political power, in part because of the powers vested in the executive under the constitution, and in part due to the weakness of “checks and balance” institutions such as the legislature in practice. This is especially the case now that it is clear that devolution has not meant the end of the Provincial Administration – a prefectural bureaucracy that has acted as the eyes and ears of the executive since the colonial era – with this key authoritarian instrument restructured rather than removed. Second, the capacity of Jubilee to take control of a greater number of sub-national positions has changed the face of devolution. The opposition matched the ruling coalition pretty evenly in 2013, and took the governorship in the prize counties of Nairobi (the capital) and Mombasa (the port). This means that in many places national losers really did become local winners – and felt that they were connected to power and resources for the first time.
The situation was very different in 2017, when the Jubilee Party made significant inroads in a number of parts of the country in which the opposition is popular but not dominant. At the same time, NASA’s incumbent governor of Nairobi, Evans Kidero, lost out to the Jubilee Party’s Mike Sonko, the then Senator, who used his populist appeal to draw support from across ethnic groups. In turn, the greater success of Jubilee candidates, and the loss of high profile counties, limited the capacity of devolution to reduce the stakes of political competition and boost the legitimacy of the electoral process as a whole – especially as some opposition supporters believe that the county level polls were also manipulated. The changing complexion of devolution is an important reminder that decentralization only serves to boost the legitimacy of the political system when it enables opposition communities and leaders to be included at the sub-national level. When this does not happen – as in Ethiopia’s federal dominant-party state, or in Nigeria during the height of the People’s Democratic party (PDP) control – devolution can actually serve to foster a sense of double marginalization (D‘Arcy and Cornell 2016).
The continued capacity of the presidential election to generate controversy and instability, along with the falling number of counties controlled by the opposition, demonstrates the limitations of devolution as a solution to Kenya’s political challenges. The 2017 election contest makes it clear that ethnicised political dynamics persist, but with a fiercely contested presidential race now accompanied by increasingly intensely contested competitions for power at the county level. But this argument should not be taken to suggest that devolution has been an unimportant reform that lacks the potential to enhance political stability. As we have argued elsewhere, county government has emerged as a robust tier of the political system with the capacity to push back against the political centre (Cheeseman, Lynch and Willis 2016). In this sense, it represents a significant check on the recentralization of power, and may yet play a key role in sustaining the gains of the 2010 constitution. It is also clear that the political situation in Kenya in 2017 would have been considerably more explosive in the absence of devolution. The opposition may have lost control of some important counties, but the ones that it has kept hold of still provide valuable income, services and employment – and this gives NASA leaders and their supporters a reason to continue to participate in the official framework of government. In this sense, some aspects of devolution may have prevented further conflict – although it is hard to know exactly how much without conducting a more thorough counterfactual analysis of how the controversy around the polls might have played out in a centralized political system. The presidential winner, then, does not quite take all; devolution has made a difference. The new constitution has also altered politics in another way. The requirement that the presidential election be decided by an absolute majority has compounded a pre-exisitng tendency to ethnic deal-making in Kenyan national politics. The presidential election is now preceded by a
prolonged period of negotiating and deal-making; indeed, this arguably occupies the whole period between elections. Elections provide politicians with tools for these negotiations – by demonstrating the size of the vote-pool they may bring to the next election, and also by demonstrating their ability to turn people out on to the streets if they are dissatisfied. Losing a presidential election does not necessarily lead to complete exclusion from power – as was shown when Kenyatta and Odinga reconciled in March 2018 with a handshake that was widely seen as a piece of deal-making preparatory to the 2022 elections. A balanced conclusion would therefore be that the reforms introduced in 2010 have reshaped the Kenyan political landscape in important ways, that they have the capacity both to enhance and to undermine political stability depending on the context, and that it is important not to expect too much from devolution alone.
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