Kenya: Waiting For Godot

News & Analysis

Kenya: Waiting For Godot

Kenyans know that general elections are imminent, but the actual date is shrouded in controversy, even though their new constitution clearly says it should be held on the first Tuesday of August. The High Court and a group of heavyweight politicians think it should be in 2013 despite the fact that President Mwai Kibaki’s second term ends on 31 December 2012. The waiting game is on.

In October 2011 President Mwai Kibaki began his “final adieu” by holding a thanksgiving prayer meeting in his home constituency of Othaya. In the supplications that followed Kibaki thanked his constituents for continuously electing him to parliament since 1974.

The thanksgiving prayers were the first in a series of activities planned across 2012 to bid farewell to the nation as Kibaki heads into the sunset. He will step down at the next election expected this year (when, nobody knows yet).

During the celebration of the country’s independence anniversary on 12 December, Kibaki hinted again at his retirement: “As we are aware,” he said, “our country will hold general elections next year [meaning 2012]. To this end, we will be convening a pre-election national cohesion and reconciliation conference early next year.”

In his New Year message, Kibaki repeated the same message of an election in 2012. “The coming year will see a transition in national leadership,” he said in a live radio and TV broadcast from State House, Nairobi. “After two terms as your president, I will be happy to oversee a smooth transition to the new leadership that you, the people, will vote into office.

“I thank you, the Kenyan people, for the support you have extended to me during my time in office. I wish to assure you all that we will put in place all the necessary measures to ensure a free and fair general election.”

While to many people it was evidently clear that Kenya’s much-awaited general elections to usher in the fourth president would be held in 2012, the actual date remained uncertain. There are now two schools of thought within the political establishment about the date. The Commission for the Implementation of the Constitution (CIC), led by Charles Nyachae and a host of civil societies are of the opinion that the elections should be held on the first Tuesday of August 2012, as spelt out in the new constitution.

The second school of thought brings together the cabinet, politicians, and even the newly formed Independent Elections and Boundaries Commission (IEBC), in wanting a late-2012 or early-2013 election date so as to allow the current parliament to serve a full term and also allow for the solution of logistical problems. The current parliament’s term expires on 14 January 2013. So divided are the two sides that they went to court for an interpretation. When the three judges of the Constitutional and Human Rights Division of the High Court gave their ruling on 13 January 2012, they added to the uncertainty of the date, instead of clearing it up. Justices Isaac Lenaola, Mumbi Ngugi and David Majanja said: “We are conscious that our findings may be unpopular with a section of Kenyans who have preconceived notions about the elections. But we hasten to remind Kenyans that our undertaking is not to write or rewrite the constitution to suit popular opinion. Our responsibility is to interpret the constitution in a manner that remains faithful to its letter and spirit and give effect to its objectives.”

The judges made it clear that the onus of the much-awaited general elections rested on the shoulders of President Kibaki and Prime Minister Raila Odinga, courtesy of the National Accord and Reconciliation Act which established the coalition government in February 2008.

“If the elections are to be held in 2012,” the judges said, “it must be done within 60 days upon the dissolution of the National Coalition Government by written agreement between the president and the prime minister in accordance with Section 6 of the National Accord and Reconciliation Act.”

They went on to give Scenario Two: “The 5th anniversary of the day the 10th parliament first sat is designated by a legal notice as 15 January 2008. The term therefore expires on 14 January 2013 and the elections shall be held within 60 days from 15 January 2013.”
As was expected, the ruling was met with both acclaim and condemnation at the same time.

“I totally disagree with the court ruling,” said the former justice minister and presidential hopeful, Martha Karua. “The [president’s] term of office must include the election period and that’s the interpretation the world over.

“There is no country in the world, including the worst dictatorships, where the election time goes beyond the [presidential] term. The court has amended the constitution and extended the term of parliament and this is an illegality because the term of President Kibaki ends on 30 December 2012.”

Karua’s successor at the Justice and Constitutional Affairs ministry, Mutula Kilonzo, however expressed satisfaction at the judges’ ruling.
“I was worried that they would postpone the ruling but they have made us proud,” Kilonzo said. “Those who have [a] contrary opinion can appeal to the Supreme Court. The term of parliament ends on 14 January and it is only after that when the elections can be held.”

Indeed, there are plenty of reasons why the next elections are anxiously awaited, not just by Kenyans themselves but by their regional neighbours, and even the international community too.

The elections will see a successor to President Kibaki, and so far even with the “uncertain election date” the race to succeed him has attracted more than a dozen entrants.

Secondly, the political class and the Kenyan public are eager to banish the demons of the 2007 general elections which almost tore the country apart. The regional neighbours are keenly following the political developments in Nairobi too, due to the economic ties to the country and the deepening regional stability Kenya offers.

Perhaps it is with this in mind that the triumvirate bench ruled: “This case has generated substantial public interest. The public and politicians have their own perceptions of when the election date should be. We must however emphasise that public opinion is not the basis for making our decision.”

Gubernatorial polls

When the general elections finally come, Kenya will have its first taste of gubernatorial polls. Up for grabs are 47 seats for governors in the country’s 47 counties.

The counties are the newest administrative prefectures, created in the most radical reforms in the entire history of decentralisation in the country.

The current eight provinces, which were administered by provincial commissioners appointed by the president, will effectively be phased out.As President Kibaki has said: “2012 will be a transitional year. We begin a transition from a centralised to a devolved government. We start the journey of empowering 47 county governments that will be charged with managing the affairs of the people at the grassroots level.”

The 47 governors will be elected directly by the people. They will be “mini presidents” with powers of control over county finances and administrative functions. Says Justin Muturi, a former member of parliament: “Just as the president, who is a politician, runs a government through the cabinet and civil service, the governor will run the county using the county executive and the county civil service.”

Already county governors’ seats have attracted numerous political veterans and greenhorns alike. Civil service technocrats, business leaders and a plethora of other opinion-shapers have expressed interest in the new gubernatorial seats.

Of the 47 counties, the capital, Nairobi, has attracted the most passionate interest. Seasoned business managers, Philip Kisia (the current town clerk of the City Council of Nairobi), Evans Kidero (CEO of Mumias Sugar Company), and Jimnah Mbaru (former CEO of the Nairobi Securities Exchange) have all thrown their hats in the ring. Waiting for them is the Assistant Minister Ferdinand Waititu, who has already declared his candidacy for the Nairobi governorship.

Further prominent personalities who have declared their intentions for governorships across the country include the former attorney general, Amos Wako; and permanent secretaries Francis Kimemia, Emmanuel Kisombe, Thuita Mwangi and Kenneth Lusaka. Other contendors will be the police commandant Kinuthia Mbugua, and the educationist Christopher Khaemba. Veteran politicians such as environment minister John Michuki and planning minister Wycliffe Oparanya have also declared their interest.

Key counties that are expected to play significant roles and influence the direction of  Kenya’s national politics (because of population density, economic muscle, and natural resources) include Mombasa, Nakuru, Kisumu, Meru, Eldoret, Kiambu, Busia, Narok, Machakos, Garissa, Lamu, Eldoret, Nyeri, and Turkana, among others. The governor’s position is powerful because it is at the heart of the new Kenyan administrative system, and comes with the control of 15% of the national budget.

So crucial is the governor’s position that the battles at gubernatorial level may make the coming election very interesting indeed.

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