Kenya's new electoral authoritarianism

Last week’s bitterly contested election in Kenya has placed the country in the international spotlight. Although sitting President Uhuru Kenyatta was declared the winner by the electoral commission, opposition candidate Raila Odinga has refused to concede and contends that the election was stolen from him. After initially rejecting the option, he has decided to challenge the result in the Supreme Court even though many in the opposition doubt the impartiality of the courts. For the time being, his decision to appeal to the courts has calmed fears of escalating violence. The nation nonetheless remains on a knife’s edge.

Regardless of the standoff, the overwhelming response from the United States and other foreign observers—from Donald Trump to John Kerry and the New York Times editorial board—has so far been to either congratulate Kenyatta on his victory or to praise the process as transparent. These voices are clearly nervous about the country descending into chaos and note that the opposition has yet to adequately substantiate its fraud allegations. But in the rush to preserve stability, such observers have essentially missed the larger implications of the election. It may well be the case that Kenyatta won more votes. But regardless of the numerical tally, Kenya has been modeling a brand of electoral authoritarianism for the region and beyond over the last decade—one in which citizens worry that they cannot expect a meaningful transfer of national power through electoral means.

In fact, regimes appear to be learning from each other how elections can be part of the toolkit for extending their rule. With greater and greater sophistication, governments realize that they can use the security apparatus and resources of the state to shape the terms of any vote and if need be to manipulate outcomes, especially around the edges. And for foreign officials primarily interested in the exercise on election day, this is largely enough to keep relations cordial and investment and security arrangements in place. But what it does not entail is real democracy. The vote, so essential to popular participation and self-government, has become a critical component for a new electoral authoritarianism.

Some background on Kenya’s political history helps makes sense of these developments and their wider significance. The first thing one needs to know is that no sitting president in the history of the country has ever lost an election. Since becoming independent from British colonial rule in 1963, Kenya has essentially been governed by the same set of dynastic families. Indeed, Kenyatta and Odinga are the sons of the country’s first president, Jomo Kenyatta, and vice president, Oginga Odinga. But the conflicts between these dynasties have also had real material and ideological stakes. The elder Kenyatta and Odinga soon fell out. In response, Oginga Odinga formed the first opposition party to press for a better distribution of state resources to the country’s various ethnic communities as well as for land reform and constraints on growing economic inequality. In turn, the government brutally suppressed political dissent, declared the opposition illegal, and initiated over twenty years of one party rule punctuated by the political assassination of high profile politicians.

Although the 1990s saw a return to multiparty politics, subsequent presidential campaigns were marred by “state sponsored violence, voter and press intimidation” aimed at ensuring the return to power of Daniel arap Moi (Kenyatta’s successor upon his death in 1978). By the beginning of the 2000s, private looting of state institutions by public officials had become an endemic problem. If anything, Kenyan politics became increasingly shaped by two dominant facts: the reality of impunity, in which one could not expect accountability either for extra-judicial killings or for large-scale public theft; and the persistence of long-term and unaddressed grievances concerning access to land and resources.

As the new century wore on, despite the now routine exercise of elections, very little about these dynamics shifted. In fact, presidential elections came to serve as an embodiment of the country’s larger problems. Raila Odinga running for president in 2007, found himself rigged out of office by the sitting incumbent Mwai Kibaki—a one-time Moi vice president and long-time power player in Kenya’s dynastic politics—in a contest widely seen by observers as subject to “systematic electoral fraud.” The rigging sparked massive national demonstrations in which security personnel left scores dead. To make matters worse, the election also served as cover for acts of ethnic cleansing on the ground.

Six years later, in 2013, Uhuru Kenyatta and William Ruto ran as successors to Kibaki, taking full advantage of the state’s machinery. This was despite the fact that, during the campaign, both Kenyatta and Ruto faced International Criminal Court (ICC) charges for crimes against humanity stemming from their own role in ethnic and security violence in the previous election. Although they likely won more votes than Odinga in the multi-candidate race, observers once more concluded that it “was a deeply flawed electoral process,” in which fraud was probably used to avoid a run-off that would have pitted Kenyatta and Odinga directly against each other. The failure of Odinga’s subsequent legal challenge stoked more mistrust, especially due to the judicial ruling barring much of the opposition’s evidence. This left many opposition supporters suspicious that the courts could not be counted on as a neutral arbiter.

Since 2013, there has been one notable and substantial improvement: the steady implementation of a new constitution. Such implementation has devolved power to the local level and increased general access to political decision-making and economic resources. This has defused some of the harshest implications of Kenya’s “winner-take-all” presidential system. But partial devolution has not been enough to rein in either Kenya’s security apparatus or the executive’s centralizing tendencies. Kenyatta’s and Ruto’s first term saw the ICC prosecutions collapse due to witness intimidation and bribery, the persistence of endemic corruption, and the continued prevalence of extra-judicial killings and violent crackdowns on protestors by the police.

This summer’s election season turned out to be no different. A week before the vote, the election commission’s chief technology officer, whose job it was to ensure the security of the electronic system, was found tortured and murdered along with another person. He had been complaining of death threats to the police to no avail. The murder remains unsolved, with many viewing the government as the principal suspect. Shortly after that murder, foreign election advisors to the opposition, who were working on how to set up an independent vote tally system, were deported at machine gunpoint and had their laptops seized. At the same time, opposition officials say their vote tally center was raided by masked men and their computers were also taken.

Election day 2017 and its immediate aftermath did little to quiet the anxieties of the opposition. This was the case even though at least one significant domestic observer organization—the Election Observations Group (ELOG)—reached a very similar number to the electoral commission through their parallel tallying of selected polling stations. The problem was that the electoral commission rushed to declare Kenyatta the winner, apparently under pressure from the State House, before making public the vast majority of the actual paper results. At the time of this writing, the commission claims that they are all accessible on their website, but thousands of documents still remain missing. In essence, the electoral commission is asking the public simply to rely on the accuracy of its raw electronic numbers (after a documented history of stolen elections), without full paper verification or constituency-by-constituency breakdowns.

And to further heighten the tension, in the wake of the election, security forces have killed not only supposed looters, but peaceful demonstrators and innocent bystanders as well—in one tragic case, breaking into homes in an opposition stronghold and beating to death a six-month-old baby. The government also threatened to shut down two of the most important local human rights NGOs—the Kenya Human Rights Commission (KHRC) and the Africa Center for Open Governance (AfriCOG)—as well as to arrest the directors of the latter group. All of this coincides with a police raid on AfriCOG offices. Both civil society organizations have been outspoken critics of the state’s security practices, as well as of perceived government misconduct during the election. They contend that these moves are part of a state effort not only to crush dissent, but also to undercut the ability of groups to challenge the results in court—results they maintain were rife with “massive anomalies.”

For many in the country, these developments, taken together, raise the real fear that the incumbents had no intention of relinquishing power, irrespective of outcome. In this context, even though opposition claims about actual large-scale vote manipulation may eventually prove unfounded, it is hard to conclude, as have numerous foreign officials, that this has been a free and fair election.

What the Kenyan election seems to highlight is the growing sophistication of sitting governments in managing electoral processes. Most commentators still have a 20^th century image of what authoritarianism is supposed to look like: the one party rule of a strongman dictator like Jomo Kenyatta or Daniel arap Moi. Under this model, elections are either rejected or held as mere rubber stamps, with the ruler winning nearly all of the rigged votes. But more and more local elites have learned that elections need not constitute dire threats to maintaining control. If, in the post-Cold War era, American and European governments require electoral processes to sustain capital flows and friendly deals, these can be arranged. The state’s security apparatus can be deployed to impede and intimidate opposition campaigns, journalists, and election officials. If necessary, the actual tally can be altered in subtle ways that create plausible victories, difficult to contest in court, especially under circumstances in which judicial independence is suspect. But ideally, a combination of carrots and sticks—resources and funds to supportive constituencies and political violence to opponents—can ensure a bare majority and thus avoid crude vote manipulation.

For Kenya specifically, this means that the emerging political order is both similar to and different from past dictatorial incarnations. As in the past, the country remains in the grip of the same ruling elites, who essentially enjoy political and legal impunity and leave historic injustices unaddressed. For instance, Vice President Ruto, who will likely be the favorite to succeed Kenyatta as President in five years, has already said that he has no interest in implementing Kenya’s Truth, Justice, and Reconciliation Committee (TJRC) Report on post-election violence in 2007. Although this is not a surprise, given that Ruto was seen by the domestic and international human rights community as a key perpetrator of this violence, it nonetheless highlights the continued climate of disregard for the law.

But unlike in the past, current elites seem to have figured out how they can use the mechanism of the election to cloak their authority in democratic credibility and to shield themselves from foreign—if not local—suspicion.

Nothing better proves this last point than how the New York Times editorial board responded to the recent election, calling Odinga a “perennial loser” despite the history of rigging, and seeming to blame demonstrators for violence instead of the security personnel who shot them. Essentially, for foreign commentators who know little about the internal dynamics of Kenya, all that matters is the formal exercise of voting on election day—the peaceful queuing, the official counting—irrespective of historical context or election season intimidation. In going out of their way to praise the existing government, these voices essentially validate the incumbents’ strategy. As long as procedure is adequately performed, the incumbent can entrench and maintain power through coercive means. This also further undermines the incentive for oppositions, who have played by the rules in the past, to accept questionable outcomes in the name of peace or to continue to use legal processes—particularly if past conciliation will lead to being characterized now as “perennial losers.”

The consequences for East Africa and beyond may well be dire. As regimes learn from one another how to manage election season, citizens—particularly those opposed to the existing government and who have been cheated by past riggings—will come to the conclusion that the ballot box is an empty symbol. The public will lose faith in the legitimacy of the state, whether or not the actual vote numbers end up being manipulated in any one particular occurrence. The effect will be a steady ratcheting up of violence. The likelihood of actual transfers of power will continue to decline, because for officials—especially those with blood on their hands—a loss could mean opening oneself up to possible reprisal.

All of this speaks to a more general point about democratization. Scholars and commentators used to wax poetic about the waves of democratization sweeping the globe. A common perception was that elections were part of an almost inevitable transition from authoritarianism to liberal democracy, the latter marked by rights protections, pluralism, and the rule of law. This view still shapes the instinctive support that foreign observers, who helicopter in for short stays, tend to give to any plausibly credible election. But instead the last few years have seen a resurgence in right-wing populism and what amounts to managed authoritarianism from Turkey and Russia to Hungary and the Philippines. Developments in Kenya and other parts of Africa are of a piece with these broader trends. Above all, they highlight the extent to which electoral authoritarianism must not be viewed as transitional. Rather than part of a bumpy move toward liberal legality, the new electoral authoritarianism is increasingly emerging as its own stable kind of regime. And foreign commentators are unwittingly applauding the mechanisms of de-democratization dressed up as progress.

* AZIZ RANA is Professor of Law at Cornell University, and the author of The Two Faces of American Freedom. This article previously appeared in the Boston Review.

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

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