The 2007 Kenya General Elections: A Critique of Peter Kagwanja’s “Breaking Kenya’s Impasse”
Godwin R. Murunga
Lately, studies of varying levels of intellectual quality on the 2007 Kenya’s general election have been issued. None is as provoking as that by Peter Mwangi Kagwanja titled “Breaking Kenya’s Impasse: Chaos or Courts” and published as Africa Policy Brief, No. 1, 2008. Based on six months of research, Kagwanja highlights the context of the electoral campaigns and the design by the Orange Democratic Movement (ODM) to win through a ‘tribal’ strategy coupled with the threat of violence in the event that it lost the elections. He grudgingly acknowledges ODMs ability to galvanise votes across the country, but suggests that this was done by demonising a ‘civilised’ Kibaki and by deploying a well-oiled media propaganda led by a ‘discredited’ American campaign consultant, Dick Morris. Kagwanja concludes that ODM, much more than the Party of National Unity (PNU), rigged the election results.
This article is a critique of the “policy brief. It aims to isolate the silences that Kagwanja has fostered in order to make a decidedly partisan argument and to caution readers against such a one-sided argument.
The Policy Brief
Strictly examined, the document authored by Kagwanja is a mockery of the idea of a ‘policy brief’. It is hardly a disguised anti-ODM propaganda piece couched in a language that reveals more by what it insinuates and fails. Ultimately, it should be easy to see through the embarrassing effort that the author makes to defend what observers documented as Kibaki’s illegitimate usurpation of the presidency.
Kagwanja makes three moves designed to defend PNU to the hilt and embarrass the very idea of democracy and governance that he researches, viz ethnic versus the civic, Raila and Kalenjin Mafia, and the courts. Let us discuss each in turn.
The ethnic versus the civic
The Brief is conceptualised around a distinction between ethnic and civil logics. Kagwanja paints the ODM camp as a primordial movement engaged in an “ethnic assault on the civic Nation.” This dichotomy speaks to a specific audience that understands this old and sterile ethnographic perception of Africa. The context and dangers of such ethnographic language have been discussed with intellectual dexterity by scholars like Peter Ekeh and Mahmood Mamdani, the former “Colonialism and the Two Publics in Africa: A Theoretical Statement,” (1975) and the latter in Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (1996).
In this case Kagwanja draws the distinction to give the moral high ground to Kibaki and foist a problematic unilinear argument in which the modern is identified with Kibaki and the traditional with ODM. The threat of ODM’s leadership, it is implied, rests in their potential to re-traditionalise society by creating disorder. Interestingly, this is an extension of a previous argument that Kagwanja has made in relation to Mungiki in “Power to Uhuru: Youth and Generational Politics in Kenya’s 2002 Elections,” published in African Affairs (2006). This argument is borrowed from the flawed analysis of Patrick Chabal and Jean-Pascal Daloz whose Africa Works: Disorder as Political Instrument (1999) and Culture Troubles: Politics and the Interpretation of Meaning (2006).
The overall aim of this association of ODM with an ethnic logic is to draw a causal relationship between ethnicity and violence. The image of tribal bestiality of the Heart of Darkness genre is implied here. Kagwanja throws in notions like “pre-modern chaos” and “tribal militia” to spice the narrative and to produce the desired ghastly effect. He perceives all the violence in pre-and post-election Kenya as emanating from ODM and directed against a defenceless and ‘civil’ PNU; a coalition that is not only multi-ethnic in Kagwanja’s rather skewed narrative, but one whose moral probity he elevates beyond reproach. He argues that the ODM presidential candidate, Raila Odinga, used metaphors of war and, notwithstanding the fact that Kagwanja is intentionally quoting this out of context, concludes that post-election violence owes everything to ODM’s premeditated metaphors of war.
Kagwanja leaves out several key points that might contradict his conclusion. First, he ignores that six of Kenya’s eight provinces voted ODM; that of the remaining two, Kibaki only won convincingly in his Gikuyu-dominated Central Province. Second, he refuses to note that the cosmopolitan Nairobi largely voted ODM because this contradicts the ethnic logic of his argument. Three, he emphasises that Odinga is ethnic Luo but ignores his choice to consistently vie for a parliamentary seat in a cosmopolitan constituency. Fourth, he never mentions that close to 80 per cent of Kibaki’s cabinet lost in the election and that close to half of PNU members of parliament come from the Mt. Kenya Region.
The point here is not to present contrasting examples to invalidate Kagwanja’s set of examples. It is to wonder whether these facts can sufficiently nuance the interpretation as to make the idea of a policy brief more meaningful instead of remaining a simple polemic against ODM. It certainly nuances the story that ODM and its ally, NARC, commands more seats in parliament than all the other parties combined. It makes a difference, too, that all election observers agree that Kibaki could only win by a massively flawed election. No wonder, all respectable civil society organisations in Kenya have called the election into question.
In his “Breaking Kenya’s Impasse,” Kagwanja attacks the EU claiming that it “entered the scene too late” and were unable to “grasp the intricate processes of electoral flaws that characterised Kenya’s protractedly and heavily mined electoral field.” If we grant this claim, Kagwanja does not account for local organisations that were present throughout electioneering. That the chairman of ECK is on record, on Kenyan television, repeatedly admitting that he did “not know whether Kibaki won the elections” is hardly convincing to Kagwanja.
Raila and Kalenjin Mafia
The Kalenjin mafia refers to the group of ethnically Kalenjin politicians who dominated the political scene during Moi’s presidency. Most of these politicians joined Odinga even though Moi endorsed and actively joined Kibaki’s campaign in the RVP chastising and ridiculing ODM. Kagwanja drums up the bogey of ‘ethnic mafia’ to puncture ODM’s appearance of a multi-ethnic movement.
Kagwanja hopes to clinch the argument by re-introducing the discredited former President Moi (an ethnic Kalenjin) as a factor that explains the post-election violence that engulfed the Rift Valley Province (RVP), which is populated predominantly by the Kalenjin-speaking people. No doubt the Moi factor is important. However, Kagwanja only partially highlights the Mafia’s forms of expression making sure to ignore any association between Kibaki/PNU and Moi.
In his argument, Kagwanja’s seeks, first, to demonise those around Odinga in ODM as discredited and corrupted Kalenjin politicians, as people with a bad history of the Moi era. He does not mention Moi’s role in Kibaki’s campaign. Second, he paints Odinga as wedded to a violent political ethos associated with the Luo in Kenyan political talk. This two-pronged attack is intended to eliminate any doubts that Odinga/ODM can have a legitimate claim to power since both the Kalenjin and the Luo have a bad and violent history.
Although Kagwanja acknowledges that Odinga’s was a multi-ethnic coalition, he derides this achievement as “a publicity stunt.” He grudgingly acknowledges ODM’s success in galvanising voters in the whole country, but re-interprets it simply as “a solid anti-Kikuyu plank.” He does not mention that PNU was hurriedly cobbled together barely three months to voting day to give Kibaki’s campaign a national outlook and its lack of success became apparent when critics pointed out its failure to garner support outside Kibaki’s own stronghold.
Instead, Kagwanja discovers Moi, a sure option for writers who aim to divert attention away from Kibaki’s failures in the last five years. He presents both Moi and Odinga as sharing an “obsessive anti-Kikuyu sentiment that has come to pervade Kenya’s ethnic fabric.” He then concludes: “the motor driving the Pentagon’s anti-Kikuyu alliance was the so-called “Rift Valley” or “Kalenjin mafias” consisting mainly of wealthy Nandi, Kipsigis and some Maasai elite who called the shots in the Moi regime.”
True, there is the Kalenjin mafia in ODM, but Kagwanja ‘forgets’ that most politicians in Kenya today have brushed shoulders with Moi’s KANU at one time or the other. Kibaki was Moi’s vice-president from 1978 to 1988 and was, therefore, part and parcel of the Moi authoritarian party machine. In ODM-Kenya, Kalonzo Musyoka, Dr. Julia Ojiambo and Moi’s lawyer, Mutula Kilonzo are all ex-KANU. In PNU, there is Prof. George Saitoti, Njenga Karume and Noah Wekesa. The affiliates of PNU, like Uhuru Kenyatta, joined Kibaki with perhaps some of the most discredited ‘Kalenjin mafia’ like Gideon Moi and Nicholas Biwott. Pointing out the Kalenjin politicians in ODM without acknowledging the very presence of ex-KANU politicians in other political parties is one-sided and suspicious.
Thus, this Kalenjin mafia argument is illuminating not only because of what it says about ODM, but also because of what it hides about PNU. Kagwanja hopes to show that the Gikuyu are sinned against by Kenyans than they sin. This might be true going by the violence that rocked some parts of the RVP. Indeed, this possibility is confirmed when one examines the emerging reports that allege complicity of some RVP politicians in the violence that rocked the province. But this is simply a description not an explanation of the violence or alleged anti-Kikuyuism.
Kagwanja does not have any conspiracy to propagate about the other non-Luo and non-Kalenjin regions of Kenya that voted ODM. He intentionally refuses to bring in the Luyia of Western Province who largely voted ODM, while the popularity of Odinga in Coast Province was strategically related to the MoU Raila signed with “militant Islamic political grouping to ‘protect’ Muslims from harassment and abuses linked to the US-led war on terrorism.” But non-Muslim districts in Coast Province that voted overwhelmingly for ODM, such as Taita Taveta, are not cited. This is because Western Province can easily nuance, if not challenge, Kagwanja’s ‘Kalenjin mafia’ conspiracy generalisations. The Coast issue is cavalierly designed to appeal to the conservative pro-Republican US sensibilities, discredited as George Bush lame duck presidency is.
The Courts
Kagwanja also aims to endorse the Kenyan court as arbiters of the disputed presidential election results. Courts in Kenya have a terrible history with respect to dispensing justice and “judicial subservience” to the executive is not new to Kenyans. Courts have been complicit in many of the transgressions of the state against human rights activists. They gave judicial ‘legitimacy’ to Moi’s dictatorship. Periodic democrats like Gibson Kamau Kuria, Koigi wa Wamwere and the late Mirugi Kariuki suffered the brunt of this judicial injustice in 1987.
The court system in Africa has some intriguing history. In his study of the bifurcated colonial state, Mamdani shows that courts dispensed civil justice for “citizens” as contrasted to the customary code used for “natives.” The idea was to exalt the civic domain in the hierarchy of modernising institutions and highlight the unilinear path by which “natives” would qualify for civic justice.
Kagwanja borrows this logic and applies it not simply to contrast PNU with ODM, but to exalt the former over the latter. The implied position is this: if ODM cannot go to the courts of law to seek redress, why would anyone expect them to provide civilised leadership?
In election related cases, courts have been known to drag cases in court until an election cycle is complete. None other than Kibaki experienced this when he disputed Moi’s flawed electoral mandate in 1997. The actions of the Chief Justice (CJ) have failed to allay fears of judicial complicity; he was already at State House to swear in Kibaki before Kivuitu arrived to deliver the certificate. His subsequent statements have cemented a perception of his hypocrisy in the ongoing crises in the country.
The argument in favour of the courts has been repeated with dizzying regularity by many analysts, most of whom, like Mutula Kilonzo, are too legalistic to be enlightening. This legalism focuses almost exclusively on preserving the rule of the law and does not consider the context of law. It avoids the issue of consistency in the application of law and its legitimacy, a question that is central to the disputed elections.
Issa Shivji has observed that “a prerequisite of a constitutional government is that the constitution and the laws themselves are just, fair and equitable and, therefore, legitimate” and “consistency is the first condition for credibility.” Citing the case of South Africa, he ponders that, if following the law was the binding condition for justice, then apartheid would still be with us since the apartheid regime scrupulously followed the law.
Proponents of the rule of law, in contrast, argue that there are laid down rules regarding elections that prescribe what one ought to do in the event one feels aggrieved about electoral flaws. Kagwanja refers to the US Supreme court ruling of 2000 that ‘resolved’ the Florida contest and saw George Bush assume the presidency in the US. But as Mugambi Maina has correctly argued, Kenyan courts are themselves on trial. Any comparisons between the US and Kenyan courts, he concludes, amounts to “a massively flawed and false analogy.”
In fact, the US analogy confirms how undemocratic courts can be. The Supreme Court ended up selecting Bush as US President contrary to the popular vote that had given Al-Gore the win. One only needs to read Greg Palast’s, The Best Democracy Money Can Buy (2002), to appreciate that the US example confirms ODM’s fears rather than bolster PNU’s case. Palast shows that the Florida vote was manipulated and rigged to give Bush unfair win over Al-Gore, evidence that the courts did not deal with even though they remain in the public domain.
Conclusion
Minimum facts exist that are incontrovertible in the ongoing discussion and these cannot be denied. One of those facts is that the election tallying process was so flawed that it is difficult to tell who won.
There is need for better analysis that is not captive to the momentary passions of the contending parties in the Kenyan political stalemate. The focus for better analysis must illuminate the myriad sources of conflict in the Kenyan society and how these fed into the post-election violence. The violence has to be described and explained not simply as capricious actions of unthinking hoodlums lazily following ODM’s rallying cries to commit unprovoked murders, but as consequences of inequalities and injustices embedded in Kenya’s history. This violence only found a trigger in the flawed declaration of Kibaki as president of Kenya.
Professor Godwin R. Murunga teaches in the Department of History, Archaeology and Political Studies at Kenyatta University.
