The March 4, 2013 Kenyan elections—in which Uhuru Kenyatta was declared the winner—represented a watershed moment in the country’s post-independence history. This was the first election under the constitution (inaugurated in August 2010) which introduced far-reaching reforms of electoral laws. It was also the first election since the 2007-2008 post-election violence, which had claimed more than 1,133 lives and displaced more than 650,000 people.1Mathenge, Oliver. “ICC Picks Ghanaian to hear Kenyans’ jurisdiction challenge.” Africa Review. http://www.africareview.com/News/ICC-picks-Ghanaian-to-hear-Kenyans-jurisdiction-challenge/-/979180/1318002/-/8lr43cz/-/index.html (Accessed June 2, 2013). Hence the 2013 elections were not only significant nationally, but also regionally and internationally for peacebuilding scholars to assess the extent to which these reforms deepened democracy and peacebuilding in Kenya.
This article argues that the 2013 Kenyan elections should be assessed as a process and not as an event. Although it is not clear what direct impact they had on democracy and peacebuilding in the short term, three factors are identified which seem to have influenced the elections significantly by providing opportunities for democracy and peacebuilding to thrive in the long-term. These three factors are: the legacy of Agenda Four; vigilance by Kenyan civil society, the media, and social media; and the role of the International Criminal Court (ICC). Thus the Kenyan case presents lessons on the importance of investing in, and strengthening institutions and the rule of law, civil society, and media, as well as the sequencing of international criminal processes.
The Legacy of Agenda Four Reforms
Agenda Four was a component of the items listed in the National Accord Reconciliation Agreement, which was signed on February 28, 2008 by the Party of National Unity (PNU) and Orange Democratic Movement (ODM). It soon fell under the purview of former United Nations Secretary General Kofi Annan, after the country plunged into humanitarian and political crisis following the disputed elections in December 2007. The reconciliation process sought to end the violence, address the humanitarian crisis, and resolve the political calamity. Agenda Four, the fourth agenda item in the Agreement, sought to examine the root causes of the violence and proposed to address them using constitutional, legal, and institutional means.
A number of these reforms have since had a significant effect on democracy and peacebuilding. One example is the introduction of a new constitution which reformed bodies such as the Judiciary and the Independent Elections and Boundaries Commission (IEBC), along with a devolved government. The most significant tenet of Agenda Four, however, is the new constitution which had several effects on the 2013 elections’ conduct, substance, democracy, and peacebuilding.
First, the constitution has ensured the legitimacy of mediating institutions in the 2013 elections, including the IEBC and the Judiciary. Despite the close contention between the leading candidates in the elections (Uhuru Kenyatta of the Jubilee Coalition, and Raila Odinga of the Orange Democratic Movement), legitimacy of these institutions forestalled any violence in the aftermath of the elections and ensured that political parties respected the outcomes of the elections. Unlike in the country’s earlier elections when the independence of the Judiciary was compromised, political parties had confidence in its efforts.
Although several civil society organizations have argued that the IEBC was manipulated by the Jubilee Coalition due to reported anomalies, the two can be credited for a significant improvement in the conduct of elections and increasing their legitimacy as mediating bodies which can be used to prevent conflict. They have also been critical in strengthening the rule of law, and provide a good example to the rest of the region about the importance of proper sequencing for elections after strengthening institutional capacities and post-conflict peacebuilding.
Secondly, alterations to the constitution inspired improvement of existing electoral laws, which in 2007 could have helped in dispelling tensions. These revisions—which included the introduction of a runoff election for the leading presidential candidates in the event of a close contest—were effective in reducing the tensions that often arise in first-past-the-post elections. Under the new laws, a candidate must win at least 25 percent of the vote in a majority of Kenya’s forty-seven counties, and garner 50 percent plus one vote of the total valid votes to win the election. Since the majority of support for both of the leading candidates came from their ethnic strongholds,2Independent Electoral and Boundaries Commission Election Results. “Electoral Laws.” http://www.iebc.or.ke/index.php/resources/downloads/category/electoral-laws (Accessed June 2, 2013). the first condition was critical in ensuring they obtained votes from diverse constituencies in Kenya. The winner, Uhuru Kenyatta, garnered thirty-one constituencies, while Raila Odinga managed twenty-nine in the closely contested election.3Ibid.
Third, constitutional amendments devolved power from an imperial presidency to forty-seven county governors. Theoretically, this promises to dispel the role of ethnicity in national elections while increasing interest in devolved government. Many Kenyans voted for particular presidential candidates on ethnic grounds in 2013, judging by the 98 percent turnout in certain constituencies considered ethnic strongholds for the contenders.4Kindiki, Nyaga. “Ethnic Numbers among the Success Factors Used by Top Coalitions.” Nation Media. www.nation.co.ke/oped/Opinion/Ethnic-numbers/-/440808/1718498/-/jg47s3z/-/index.html (Accessed June 2, 2013). The majority of the voters for the newly devolved positions, however, such as governor, senator, female county representatives, and members of parliament, seem to have cast their ballots based on their confidence in their candidates, regardless of party and ethnic affiliation (although ethnicity still remains a major factor). The diversity in party representation in the election results at the county level displayed this fact. Party leaders in ethnic strongholds who asked voters to vote for their preferred candidate in their political party were rejected and even had to retract their words through the media.5Star Team. “Raila Drops Demand for ‘6 Piece’ Vote.” Star Newspaper. http://www.the-star.co.ke/news/article-108150/raila-drops-demand-6-piece-vote (Accessed June 2, 2013). This evidence suggests progress toward issue-based leadership at the devolved county levels, although national politics remains deeply ethnic-based. Many county governors will now be forced to cooperate with senators and members of parliament from different political parties, which promises to influence democracy and peacebuilding.
Role of Civil Society, Mainstream Media, and Social Media
The Kenyan civil society, Kenyan media, and social media all played significant roles in reinforcing democracy and peacebuilding during the 2013 elections. Before the elections, some civil society organizations provided civic education, while others were involved during the elections in monitoring electoral institutions through various platforms such as Elections Observation Group (ELOG) and iHUB. (The latter provided an online interactive platform called Uchaguzi—meaning “elections” in Swahili—that served as an early warning reporting tool that related any crisis to the police.6Uchaguzi. “Kenyan Elections 2013.” https://wiki.ushahidi.com/display/WIKI/Uchaguzi+-+Kenyan+Elections+2013 (Accessed June 2, 2013).) After the elections, other groups such as Africa Centre for Open Governance (AfriCOG) highlighted election anomalies by launching a website for reporting electoral malpractices. They also petitioned the Supreme Court to consider those malpractices which undermined the credibility of Uhuru Kenyatta who was declared the winner by the IEBC.7Njagi, John.“Africog Launches website on Electoral Malpractices.” Daily Nation. http://www.nation.co.ke/News/politics/-/1064/1746404/-/b1ckaf/-/index.html (Accessed June 2, 2013).
The resilience and patience of the Kenyan people also contributed to deepening democracy. New positions were introduced, such as a governor, senator, and a women’s representative for each of the forty-seven counties in the devolved system. This overwhelmed the IEBC, especially after the electronic counting method failed to work, forcing a reversion to tallying the votes manually. Yet despite these challenges, the majority of Kenyans waited patiently for the final results, six days later, with no major incidents of violence reported.
The role of the Kenyan media in advancing democracy and peacebuilding is perhaps the most varied. Before the elections, the media held all presidential candidates accountable to the citizens by holding the first-ever presidential debate in the country’s history. (They also held governors, senators, and members of parliament accountable, which was commendable given the role media was accused of playing in the 2007 election.) However, mainstream media is also accused of having a negative effect on peacebuilding in the country, by ignoring evidence of malpractice by politicians. This may have been due, in part, to their want to prevent a recurrence of violence, which would have thus had an effect on the results of the IEBC. For its part, social media offered a new kind of battleground for those unresolved concerns by Kenyans, such as increasing hate speech, which is largely ethnic in nature.8Pflanz, Mike. “In Kenya, social media hate speech rises as nation awaits election ruling.” The Christian Science Monitor. http://www.csmonitor.com/World/Africa/2013/0321/In-Kenya-social-media-hate-speech-rises-as-nation-awaits-election-ruling (Accessed June 2, 2013). Politicians and their party organizers were able to take advantage of these outlets to spread negative propaganda against their opponents, which only impeded a full peacebuilding process and trust by the people.
Role of the International Criminal Court (ICC)
The Commission of Inquiry into the Post-Election Violence (CIPEV) proposed a local tribunal to deal with crimes against humanity committed in Kenya in 2007-2008. However, since the Kenyan government failed to follow through with this initiative due to disagreements among elites, in 2009 the prosecutor of the ICC, Louis Moreno Ocampo, started his own investigations in the country. Kenya. On March 8, 2011 the ICC summoned six suspects (who were later known as the “Ocampo Six”) to the Hague for bearing the greatest responsibility for crimes against humanity. These six suspects included high-ranking government officials and a radio presenter. As of March 2013, only three were charged due to insufficient evidence. They included the president Uhuru Kenyatta; his deputy president, William Ruto; and a radio journalist, Joshua Arap Sang. Their charges were confirmed in September 2011. Since their indictment by Ocampo, the three have cooperated with the court, and in his victory speech on March 10, 2013, President Kenyatta and his running mate indicated their continued willingness to cooperate with international bodies such as the ICC.
The ICC’s action against Kenyatta and Ruto seems to have had consequences on the outcome of the 2013 elections.9BBC News. “Did the ICC help Uhuru Kenyatta win Kenyan election?” http://www.bbc.co.uk/news/world-africa-21739347 (accessed on April 6, 2013). Though the effects on peacebuilding and democracy can only be known in the long-term, it can be argued that the ICC contributed considerably to the candidates’ recent victory.10Ibid. Kenyatta and Ruto, under the Jubilee coalition, framed the election as a referendum on the ICC. They called on their supporters—who were mainly from their own ethnic groups—to vote for Kenya’s sovereignty and ignored the advice of some members of the international community against their candidacies.11Ibid. Prior to the election, the African Affairs Deputy Secretary at the US State Department, Johnnie Carson, warned Kenyans that their choices have consequences, in a bid to dissuade Kenyans from voting for Kenyatta and Ruto.12Joselow, Gabe. “US Official Says Kenya’s Elections Have ‘Consequences’.” Voice of America http://www.voanews.com/content/us-official-says-kenya-elections-have-consequences/1599063.html (Accessed April, 20 2013). Kofi Annan also advised against electing indicted leaders.13Hirondelle News Agency. “Kofi Annan Urges Kenyans Not to Vote for ICC Suspects.” http://allafrica.com/stories/201212070001.html (Accessed on February 6, 2013).
At the same time, the ICC also contributed towards deepening peacebuilding in Kenya by being a deterrent factor to those who could have considered instigating ethnic violence. Many politicians, citizens, and the mainstream media, have exercised caution in both public and private spheres by avoiding hate speech and any actions that can be construed as potential causes of tension in a country so deeply divided by ethnicity (largely due to their experience with the ICC).
Conclusion
The Kenyan case highlights important lessons that have influenced advancement or derailment of democracy and peacebuilding. These lessons include the importance of reforming laws and strengthening institutions before the elections so that they can act as safeguards; supporting civil society organizations and the media in monitoring elections objectively; the need to focus on social media in deepening divisions; and finally, the importance of identifying the right time for sequencing important announcements from the ICC concerning indicted politicians to prevent them from politicizing the ICC.
