What are the issues? The overriding issues in the Kenyan election were two: Land and the International Criminal Court (ICC). In highlighting the land question, CORD hoped to win in two places where this question is the most volatile: Coast and Rift Valley. It is said that the largest landowners in Kenya are its three big political families: Kenyatta, Moi, Kibaki. The land issue on the Coast is defined as that between the Kenyatta family and the people. As expected, CORD has won the Coast handsomely.
In the Rift Valley, there are two clashing notions of land rights – a colonial era notion that land belongs to those native to the land versus a market-based notion that land belongs to whoever holds the title. This put two ethnic groups, Kalenjin and Kikuyu, against one another and was at the heart of the 2007 election violence. CORD expected to rally the Kalenjin against the Kikuyu and win in the Rift Valley in 2013.
But the unexpected happened. CORD lost in the Rift Valley, and spectacularly too. Instead of a repeat of the 2007 ethnic conflict, you had an ethnic reconciliation. This is the main story in this election. The explanation for this lies in the domestic impact of the ICC.
Campaigning for peace
The Jubilee coalition mobilised support around the question of peace and against the ICC’s intervention in Kenya. Raila and CORD failed to trounce Kenyatta and Jubilee in Kalenjin areas. The Kalenjin followed Ruto who told them they had been sacrificed as lambs at the altar called ICC. In the process, Jubilee put together a peace coalition. Uhuru evoked his father’s legacy and claimed to build a grand national reconciliation.
Two contradictory political processes have unfolded in Kenya since the 2007 election. One was typified by the Constitutional referendum of April, 2010, which passed with a thumping 66.9 per cent ‘yes’ in all major provinces except Rift Valley. Opposition to it was led by Ruta.The counter-movement began when the ICC declared, a year later, in April 2011, that it would charge ‘the Ocampo 6’ with ‘crimes against humanity.’
I suggest we think of two kinds of ethnic groups when it comes to politics.
The first kind are ethnicities that are so highly politicised that they tend to polarise politics ethnically. We can call these fighting ethnicitiescentrally organised for political action. The two prime examples historically are the Kikuyu and Luo. On the other side, you have ethnicities without extreme ethnic politicisation, without a centralised political organisation or direction. They do not vote one way, but many ways – eg, Maasai. In Kenya, their orientation is to what is known as AGIP (any government in power).
Whereas the 2010 referendum had a de-ethnicising effect on Kenyan politics, the involvement of the ICC had the opposite effect, re-ethnicising Kenyan politics, with more and more ethnicities organising politically and centrally. The result is that the country has re-divided into two large ethnic coalitions.
The ICC is the single factor with the most influence on this election. The ICC process has polarised politics in Kenya because the electoral process did not unfold on a level playing field. Led by individuals who stand charged before the ICC, one side in the electoral contest is, and so it can not contemplate defeat. The simple fact is that, if defeated, they would lose all.
Everyone knows that the worst thing to do in a contest is to leave your opponent without an escape route. If you do that, you turn the contest into a life-and-death struggle. You transform adversaries into enemies. This side, the Jubilee coalition, presents itself as victimised, turned into a sacrificial lamb. Yet, it is an open secret that among its supporters are those armed for a fight to the finish.
The other side is beginning to sense that its embrace of the ICC may have been a political blunder, but the realisation has come a little late. The political leadership of CORD now says it was actually in favour of a national jurisdiction; it did not favour going to the ICC. Neither did it oppose the Hague option. At most, it remained silent. One part of the CORD coalition, the human rights lobby, embraced the ICC option openly and enthusiastically. Its slogan said so: ‘don’t be vague, let us go to Hague.’ The political cost has been high.
The result is that CORD has lost the middle ground in this election. This is most obvious in the Rift Valley. On its part, Jubilee has been able to tap into the overwhelming sentiment for peace. Jubilee presented itself as a party of a grand national reconciliation, and CORD as the party of vengeance. This was not an election for Jubilee to win. It was an election for CORD to lose. If that happens, the credit for that loss must go to human rights fundamentalists in its ranks.
Need for a judicial process
The larger lesson is that a judicial process needs to be held accountable to the political process. In a situation of mass violence like 2007 in Kenya, the political cost of an unaccountable judicial process is unacceptably high.
The judicial process tends to be a winner take all process. In the court of law, you are either right or wrong, innocent or guilty; both parties cannot be guilty in a court of law. In a civil war, however, both parties often bear some share of the guilt.
The judicial process criminalises one side, which is then politically disenfranchised. Everyone knows that there was a clear attempt to disenfranchise the leadership of the Jubilee coalition before the election on grounds that it was the subject of a judicial process. This single fact, if none other, made it clear to the Jubilee leadership that this was likely to be last chance to have a political voice.
My main point is this: those who want to reform the political process need to assure all adversaries are represented in the political process, and none ruled out as enemies. Targeting leaders of political parties in a civil war-type situation in courts of law, and thereby excluding them from the political process, is a recipe for rekindling the civil war.