How the Supreme Court’s decision and withdrawal of Raila’s candidature sharpened the political divide in Kenya

By David Kirenga | Oct 31, 2017 

Supreme Court of Kenya 

SUMMARY

• On the 1st of September the Supreme Court of Kenya nullified the August 8th presidential election
• IEBC was ordered to conduct another election within 60 days

Two recent developments on the Kenya political and judicial scenes have elicited a myriad of reactions and interpretations from Kenyans of all walks of life.

On the 1st of September, the Supreme Court of Kenya determined that the August 8th presidential election "was not conducted in accordance with the Constitution and … is invalid". The ruling of the Supreme Court underscored that what the elections commission, international observers and some international press wanted to write off as "irregularities" were actually significant procedural failures that undermined the core of Kenyan democracy.

Before the dust could settle on that ruling. Mr. Raila Odinga, on October Tuesday 10, withdrew from the election re-run which is to take place on 26 October saying: "We have come to the conclusion that there is no intention on the part of the IEBC to undertake any changes to its operations and personnel... All indications are that the election scheduled for 26 October will be worse than the previous one."

Both the court’s decision and the withdrawal of Raila Odinga’s candidature have sharpened the political divide in Kenya, and posed a constitutional crisis and scenarios of doom and gloom.

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While our recent history bears the pessimists out, I want to take a different view of what is happening and look at it as pain of democratisation which if well managed will lead to Kenya being better for it.

Democratisation can be understood as a process subdivided into three phases: (i) the liberalisation phase, when the previous authoritarian regime opens up or crumbles; (ii) a transition phase, often culminating when the first competitive elections are held; and (iii) the consolidation phase, when democratic practices are expected to become more firmly established and accepted by most relevant actors. This final phase is essential for establishing durable democratic regimes.

It is essential to remember, however, that democratisation processes need not be linear, and in a number of cases democratic openings and transitions have not resulted in consolidated democracies. Instead, many regimes end up ‘getting stuck’ in transition, or reverting to more or less authoritarian forms of rule. These are called ‘unconsolidated’ or ‘hybrid’ regimes.

We successfully navigated the first phase, when we booted KANU, albeit with difficulties. I now feel that we are stuck at the tail end of the second phase of democratization. The transition phase.

 A large number of countries that democratised in the early 1990s have remained in a ‘grey zone’ as hybrid regimes rather than institutionalised democracies or authoritarian systems. Kenya, Nigeria, Zambia, Uganda, Rwanda and many others are characterised by routinised electoral processes and formal democratic institutions. However, democratisation has not led to the institutionalisation of formal rules, and the uncertainty of rules is witnessed in particular before elections. Common among these hybrid regimes are poorly institutionalised and functioning party systems.

The case of Zambia is illustrative. Zambia experienced a change of leadership as a result of the founding elections in 1991. Since then, Zambia has held a number of multi-party electoral contests, therefore appearing to be ‘on track’ toward democratic consolidation. It seemed reasonable to assume that the first election under multi-party rule would be surrounded by controversy, while later elections would be less controversial as the voters, candidates and administrators gained experience with multi-party contests. However, after a brief period of euphoric optimism, by the mid-1990s Zambia’s democratisation process had stagnated and maybe even reached a critical point in terms of continued stability. Institutional reforms have failed to produce influential ‘watchdogs’ and counter-forces against state malpractice and corruption. And while electoral democracy exists, pluralist constitutional democracy has not challenged the hegemony and increasingly more authoritarian practices witnessed within the government. Rather, the 1990s saw a growing concentration of power in the executive office. 

While the concept of hybrid regimes has received increasing attention in the literature on Africa’s new democracies, a third trajectory of democratic development has so far been largely neglected. This category may be referred to as ‘political meltdown’ – a situation where the quality of political institutions erodes over time. Political meltdown ‘accumulates’ when several key political institutions malfunction simultaneously. For different reasons, Ethiopia, Zimbabwe and Malawi may be placed in this category.

To avoid hurtling towards a political meltdown, our leaders need to recognize that while the process of democratization is long and painful, democracy is not only an attractive option but a rational one. That fidelity to the letter and spirit of the constitution is the only path to the consolidation phase of our democratization journey.