In December 2021, Independent Electoral and Boundaries Commission Chairman Wafula Chebukati announced the Commission’s plans for mass voter registration in the diaspora. According to the IEBC boss, Kenyans living in the United Kingdom, Canada, the United States of America, South Sudan, Qatar, United Arab Emirates and Germany will have an opportunity to participate in the 9 August 2022 polls. The new centres were in addition to East African Community countries  (Tanzania, Uganda, Burundi, and Rwanda) and South Africa, where Kenyans were able to cast their votes in the 2017 general election.

Regulation 34(2) of the Elections (Registration of Voters) Regulations 2012 provides that: “A decision by the Commission to register Kenyan citizens residing outside Kenya or to conduct elections outside Kenya shall be based on the presence of [a] Kenyan Embassy, High Commission or Consulate.” The IEBC was to undertake a 15-day voter registration exercise for the diaspora from 21 January to 6 February 2022.

Chebukati said that additional Biometric Voter Registration (BVR) kits would be made available in countries with multiple registration centres (US, Canada, UAE and Tanzania). A BVR kit was also to be installed in the Huduma Centre at the General Post Office in downtown Nairobi for the registration of Kenyans who would have travelled to Kenya during the registration period.

Voter registration did not kick off on schedule.

In a statement dated 21 January, the Commission gave COVID-19 travel restrictions and logistical challenges as the reasons behind the failure to begin the registration. “The commission regrets the delay in rolling out the voter registration exercise in the affected countries and is closely working with the relevant authorities to ensure it kicks off,” the statement said. The Commission said that the period of registration would be prolonged to compensate for the time lost. 

Registration in London started on 24 January, on 1 February in Ottawa, Vancouver and Toronto and on 31 January in the UAE.

By February 6, the IEBC had enrolled only 2,959 new voters in 12 countries: Uganda, Tanzania, Rwanda, Burundi, South Africa, South Sudan, the US, the UK, UAE, Qatar, Germany and Canada.

The failure to start registering Kenyans in the diaspora on time, and the low numbers registered, is indicative of the mess that has been the bid to ensure that Kenyans in the diaspora can vote.

After years of lobbying for their right to dual citizenship and the right to participate in Kenyan elections in their countries of residence, the Constitution of Kenya 2010 extended voting rights to at least three million Kenyans living abroad. However, only about 4,000 Kenyans in the diaspora were able to vote in the 2013 and 2017 presidential elections (in its communication on voter registration in the diaspora, the IEBC has stated that Kenyans living abroad can only participate in presidential elections and referendums).

Section 109 (1) (a) and (b) of the Elections Act gives the IEBC the power to make regulations to prescribe the manner in which registers of voters shall be compiled, the manner in which they shall be revised and the procedure for the progressive registration of Kenyans living abroad.

Article 82 (1) provides that Parliament shall enact a law that shall provide for “the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote”. Further, Article 83 (3) provides that “administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election”.

The Kenyan diaspora does not think the IEBC has complied with the constitution. With their billions of shillings in remittances, Kenyans living abroad rightfully argue they should participate in the election of the country’s leadership and have felt cheated ever since only a very small minority were allowed to participate in the 2013 and 2017 elections.

In November 2012, the government had announced that the diaspora would not be able to vote because of “logistical and financial constraints”. Then Justice and Constitutional Affairs Minister Eugene Wamalwa told Parliament at the time that voting outside of Kenya was “not practical” as the electoral commission was already facing challenges in enrolling voters at home.

With their billions of shillings in remittances, Kenyans living abroad rightfully argue they should participate in the election of the country’s leadership.

“Kenyans in the Diaspora will not vote in the 2013 elections. It is not practical to have them take part now. I am appealing to those who can come home to register to do so,” Wamalwa said, adding that the matter had been discussed at cabinet level.

Martha Karua, who had resigned as Justice Minister, accused the cabinet of interfering with the independence of the IEBC, which she said had set aside 47 BVR kits to register Kenyans living abroad.

Angered by the decision, Kenyans living abroad moved to court, calling Wamalwa’s pronouncement illegal, ill-conceived and ill-timed. However, High Court Judge David Majanja ruled that although the right to vote is guaranteed constitutionally, it is not absolute and cannot be realised instantaneously but only progressively.

At the centre of the issue is also the actual number of Kenyans living abroad. At the time, Wamalwa said that only 152,000 Kenyans were registered with Kenyan missions abroad, adding that the three million figure was an exaggeration; the ministry of Foreign Affairs put the number at 700,000.

Agnes Gitau, who lives in the UK and is the Kenya Diaspora Alliance representative for London, said the process was flawed and would exclude many people due to logistics, and the short registration period of 15 days. “There has also been confusion on required documents. We believe it’s a deliberate attempt to exclude many,” Gitau said.

The IEBC chairman had said Kenyans abroad must “produce evidence of citizenship which is a valid Kenyan passport”, yet Kenyans residing in the other countries of the East African Community could use their identity card as proof of citizenship.

However, following a High Court decision, in a memo to registering missions the Commission announced that Kenyans in the diaspora could register as voters using either an Identity card or a valid passport. In the memo dated February 1, acting CEO Marjan Hussein said the directive was issued on 31 January pending determination of a petition filed by Okiya Omtatah against the IEBC and the Attorney General.

Omtatah had challenged the provisions of the Elections (Registration of Voters) Regulations, (2012), particularly Regulation No.37, which prohibit the use of national identity cards to register citizens in the diaspora as voters.

On 20 January, the Kenya Diaspora Alliance (KDA) released a statement in which it welcomed the IEBC’s decision to add eight more countries to the list of countries where the Kenyan diaspora could vote but also raised various concerns about the registration process. The lobby group, which said it represents 46 Kenya diaspora organisations, took issue with the 15 days allocated to the registration exercise. Kenyans within the country were given three weeks to register but, beyond that deadline, IEBC offices remain open for continuous registration until February 28. This option is not available to Kenyans in the diaspora.

“This discrepancy in the time limits seems to deny the Kenyans in the diaspora a fair opportunity to register in their numbers by having less time to register,” KDA said in the statement. The KDA also raised concerns regarding the vast areas—spanning countries and continents—covered by the missions that act as voting centres.

“This means that the Kenyans who wish to vote must travel over long distances and often expensively to register as voters. The Kenyan Embassies and High Commissions earmarked as registration centres are inadequate and logistically challenging for Kenyans who have to travel far and wide to register. That in itself negates the spirit and objective of the exercise,” KDA said. The KDA also does not think that Kenyans in the diaspora have been adequately consulted and involved in the process. “There also seems to be a selective partnership and collaboration between IEBC and some Kenyan diaspora organizations in supporting the exercise.”

Consequently the KDA has, among other things, demanded that more registration and voting stations be provided in order to improve access. It has also demanded that the use of technology, including registration through e-Citizen and other suitable online platforms, be explored. The Alliance has also called for more time (six weeks) for registration and that the IEBC consults with the organisation and with other credible diaspora groups so that the right to vote is enjoyed by all Kenyans living abroad.

In a letter to Chebukati dated 27 September 2021, the Kenya Qatar Diaspora Sacco took issue with the low number of diaspora voters.

“Despite the political engagement of the diaspora, intensive government outreach to emigrants, and high-stakes electoral competition, fewer than 3,000 Kenyans were permitted to vote from abroad in the year 2013 and 2017 presidential elections,” said Engineer Maxwell Odhiambo, chairman of the Kenya Qatar Diaspora Sacco Ltd. and KDA representative in Qatar. He said that the registration of Kenyans in the diaspora requires a strategic and organised approach, with the IEBC, the embassy and the local diaspora organizations working together.

Diaspora voting in Africa

African countries whose constitutions provide for diaspora voting include Algeria, Angola, Benin, Botswana, Cape Verde, Central African Republic, Chad, Côte d’Ivoire, Djibouti, Equatorial Guinea, Gabon, Ghana, Guinea, Guinea-Bissau, Lesotho, Mali, Mauritius, Mozambique, Namibia, Niger, Rwanda, São Tomé and Principe, Senegal, South Africa, Sudan, Togo, Tunisia and Zimbabwe.

Despite this provision, however, many of these countries have yet to make the diaspora vote a reality. This, according to Voting from Abroad: The International IDEA Handbook is due to lack of the political, legislative, financial or administrative agreements necessary for the regulation and organisation of the diaspora vote.

South Africa

When South Africa became a democracy following the end of apartheid, citizens in the diaspora were able to participate in the watershed 1994 election. However, diaspora voting was abolished soon thereafter until its reinstatement following a 2009 ruling of the Constitutional Court.

In Diaspora Voting in South Africa: Perceptions, Partisanship and Policy Reversal, Elizabeth Iams Wellman observes that the details of the South African case reveal an intensely partisan divide over the inclusion of South Africans abroad.

“Perceptions of the diaspora by the major political parties shaped both policy provision and implementation. With its two policy reversals, the case of South Africa also suggests a number of broader theoretical implications, including the critical variable of how diaspora voting becomes law, as well as the centrality of the political party as a key locus of analysis,” Wellman writes.

Wellman notes that nearly 100,000 South Africans voted in 78 countries in the 1994 election. However, the ANC government went on to ban external voting in 1998, effectively denying “the estimated 1-2 million South Africans living outside of the country” the right to vote. The ban was triggered by a dispute over the registration of voters for the 1999 elections.

Moreover, voter turnout in the 1994 elections was also much lower than anticipated and the electoral commission said it did not make a lot of logistical sense to send teams to register South Africans in the diaspora.

The registration of Kenyans in the diaspora requires a strategic and organised approach, with the IEBC, the embassy and the local diaspora organizations working together.

“Everybody saw 100,000 [votes] which probably was divided among 10 or 13 parties to a greater or lesser extent, and that 5,000 or 10,000 more or less wouldn’t make a difference”.

The IEC had argued that the 1994 decision was to give those who had left the country temporarily the opportunity to vote, questioning why those who had left the country permanently would you still want to vote.

In 2009, however, the Constitutional Court forced the government to reinstate the diaspora vote—all South Africans living abroad could once again participate in national elections. Wellman argues that in South Africa’s case, emigrant enfranchisement—or their exclusion from electoral politics—depends on the ruling party’s perception of the diaspora.

And unlike Kenya’s case where diaspora voting is enshrined in the constitution and other electoral laws and regulations, external balloting in South Africa was reintroduced through the courts and not through legislation. There is thus not much political goodwill to implement it.

For its part, the IEBC has cited logistical and financial challenges in rolling out the diaspora registration. To be sure, diaspora voting is disproportionately expensive while political parties have limited resources; mobilizing potential supporters around the world is far more costly than campaigning back at home. There is therefore no incentive to push for the diaspora vote.

“Uncertainty over the diaspora population and their political leanings (or political interest) suggests that positions on diaspora voting may be driven more by perceptions than accurate information,” Willman writes.

Angola

Angolans living abroad are likely to vote for the first time this year. In September last year, Marcy Lopes, the Minister of Territory Administration, said registration of diaspora voters would start in January 2022. The exercise will last three months.

The Institute of Angolan Communities Abroad estimates that at least 400,000 Angolans live abroad, 47 per cent in Africa, 24 per cent in Portugal and a substantial number in France.

The move to have Angolans abroad vote is part of the constitutional changes proposed by President João Lourenço to the National Assembly. The Constitutional Law of 1992 provided for the diaspora vote but lack of logistical capacity to undertake voter registration abroad has meant that Angolans living abroad have not enjoyed the right.

Angola’s missions abroad started registering citizens on January 17. Angola’s Ambassador to Portugal, Carlos Alberto Paz Fonseca, estimates that about 30,000 nationals who have attained the voting age will register.

The United States

America’s system appears well organized. US citizens resident abroad are eligible to vote in all presidential and congressional elections.

According to American Citizens Abroad, in order to register as a voter a US citizen only needs to visit www.fvap.gov and follow the procedure. However, unlike for African countries for instance, where embassies act as polling stations, this is not the case for the US. This is because embassies are federal entities, whereas it is the states, rather than the federal government, that run elections.

According to Richard Johnson, there are 5.5 million American citizens, including military personnel, living abroad. If Americans abroad were a state, they would be the 23rd largest.

External balloting in South Africa was reintroduced through the courts and not through legislation.

“About 3 million of these Americans abroad can vote — the rest are children. The countries with the highest numbers of adult Americans are Canada (622,000), the UK (329,000), Mexico (201,000), France (169,000), and Japan (125,000). London is the largest ‘American’ city in the world outside of the US, with more than 100,000 Americans living in or around the capital,” the lecturer in US Politics and Policy at Queen Mary University of London, writes.

Johnson notes that in 2009 the US passed the National Defence Authorization Act that requires states to offer overseas voters the option to return their ballot electronically. In practice, this means voters can email or even fax their ballots back to their county superintendent of elections, Johnson explains.

The steps the IEBC has taken since 2017 — including the increase in the number of foreign countries where Kenyans can register to vote — point to an agency committed to having the Kenyan diaspora participate in presidential elections. But this is not enough.

The IEBC should prepare early enough to have as many Kenyans abroad register. The Commission, for instance, should have election attachés in embassies abroad to facilitate continuous registration of Kenyans as voters. Should this option prove expensive, the IEBC could explore with the embassies how best to ensure the continuous registration of voters.

But the easiest solution would be to adopt the use of technology. As the Kenya Diaspora Alliance has recommended, the IEBC needs to explore registration through e-Citizen and other acceptable online registration platforms as this option would address the IEBC’s logistical challenges and be convenient for Kenyan voters wherever in the world they may be.

It would, in fact, offer an opportunity to test e-voting for future use domestically.

In the past few weeks, the Tanzanian government has renewed its attempt to demarcate land in the Loliondo ward, Ngorongoro District in the north of the country as a wildlife sanctuary, effectively banning the Maasai from their indigenous land. As semi-nomadic pastoralists, the Maasai depend on cattle herding and some crop cultivation for the livelihoods. Access to pastures and to water for their cattle is vital.

The Ngorongoro Conservation Area has been a UNESCO World Heritage Site since 1979. But the Maasai have long lived with the threat of displacement to make way for tourism and for conservancies. The government has accused the Maasai of getting in the way of animal migration routes and of breeding grounds and claims that in the interests of conservation and ecology, wildlife corridors must be created over Maasai land. The Maasai have organised to resist these moves, accusing the government of using wildlife conservation as a pretext for their eviction.

However, in keeping with Tanzania’s land liberalisation and promotion of foreign investment since the late 1990s, it is widely reported that the cause of this renewed interest in Ngorongoro is the government’s plans to grant exclusive hunting rights in an area of 579 square miles to foreign investors. For the Maasai, this is an intensification of a long-term trend that dates from independence. Since then, the Maasai have already lost over seventy per cent of their land to “conservation”.

In 1992, an investor from the United Arab Emirates (UAE) was granted a license to trophy hunt in the area. In 2018, a report detailed the devastating impact of private companies in the area: a company called the Ortello Business Corporation had evicted the Maasai in order to run a hunting block for the private use of the UAE royal family and their guests, and continued to operate in the area after its licence had been cancelled by the Tanzanian Ministry of Natural Resources.

Governed by an overweening Ngorongoro Conservation Area Authority (NCAA), the Maasai have little scope for participation in the running of the territory or decision making about its future. The NCAA is accused of acting with secrecy. It is providing little information about the implementation of a new land use and resettlement plan in the Ngorongoro Conservation Area that will lead to the displacement of 80,000 residents, and the demolition of their homes, schools, and medical facilities.

In an echo of the struggles over land classification and definition that are seen elsewhere in East Africa when communities seek to defend their land, the residents of Loliondo argue that the disputed land is village land under the Village Land Act 1999. This legislation sought to devolve authority over decision making on matters such as land administration, land management and dispute resolution to the community level. The Maasai are demanding that their ancestral land be recognised as legitimate village land and not designated as a conservation area.

‘Conservation’

In their powerful 2017 book, The Big Conservation Lie, John Mbaria and Mordecai Ogada set out to debunk dominant conservation narratives and explore the “severe exploitation of the same wilderness [that] conservationists have constantly claimed they are out to preserve”. The renewed transnational land grab currently underway in Ngorongoro confirms this analysis.

In 2018, an Oakland Institute report documented how conservation laws were being used to dispossess the Maasai. Before that, a report by Wilbert Kapinga and Issa Shivji (the latter had served as the chairperson of the Presidential Commission of Inquiry into Land Matters) examined the legal powers and administrative practices of the NCA Authority. They set out the limitations placed on the Maasai by the NCAA without prior consultation and participation of Maasai residents in the relevant decision-making processes. They recommended that in the NCAA’s management of the Conservation Area, proper representation and participation of the Maasai and other residents was vital so that they might decide how best to conserve and develop this globally important place.

Emutai

The treatment of the Ngorongoro Maasai displays certain forms and practices that are recognisably colonial, imposing on them conditions of life that tend towards their eradication or emutai. In Maa – the language spoken by the Maasai people –  the word emutai means destruction or eradication and was first used to describe the epidemics of the nineteenth century when contagious bovine pleuropneumonia, rinderpest, and smallpox wiped out cattle and caused widespread sickness. It is a word with continuing resonance and increasing urgency. In 2018, the Oakland Institute warned that “without access to grazing lands and watering holes – without the ability to grow food for their communities, the Maasai are at risk of a new period of emutai.”

Of what does present day emutai consist? Because of the re-zoning of their land by which they are banned from grazing cattle and cultivating crops, sickness and hunger has become common. Forced onto ever smaller parcels of land in order to make way for tourism, the Maasai capacity for social reproduction is severely circumscribed: the daily tasks of grazing cattle and growing food on small family plots has been made illegal. The result is widespread starvation and disease, most especially amongst children.

The violent enclosure of their land prevents the Maasai from maintaining life both on a daily basis and intergenerationally. This prevention of Maasai social reproduction is a real threat. Severed from land as a productive resource and as their spiritual heritage, the Maasai are bearing the brunt of the government’s efforts to romance the rich and the famous in Ngorongoro. In the words of the Maasai leader, Julius Petei Olekitaika, “Imagine your home being burned in front of you to clear your land for foreigners to hunt. Imagine not being able to graze our cows because the government wants to protect a foreign investor whose only interest is hunting the wildlife.”

Wider implications

The struggle of the Ngorongoro Maasai is of vital importance to understanding how “fortress conservation” operates and how it deprecates indigenous peoples’ stewardship of the land. This is critical in the face of the climate crisis. Neo-colonial conservation models are characterised by a security-conservation nexus (intimidation and the use of militias is common) and by links with fossil fuel multinationals.

In Tanzania, the national government and private corporations are colluding. Far from conservation, the aim is the deliberate destruction of the Maasai way of life, “preserving” only those aspects that serve the purposes of tourism through a peoples’ exoticisation, a racist logic of settler colonialism. As the Oakland Institute recognises, this will not just force them off their land but “force them out of existence”.

The violent enclosure of their land prevents the Maasai from maintaining life both on a daily basis and intergenerationally.

Wilbert Kapinga and Issa Shivji argued in their report that the struggle of the Ngorongoro Maasai should not be presented as a minority struggle but should prompt the creation of alliances between all citizens threatened with dispossession and landlessness by the newly introduced land legislation (the Land Act 1999). Analysing the political implications of treating Maasai rights as “minority” or “indigenous” as many international advocacy groups have sought to do, they challenged the use of this terminology, arguing that it would have important impacts on Tanzanian civil society.

The authors made a case that has been largely overlooked. By setting the Maasai apart from the mainstream, they would be divided from the rest of civil society. Whilst they had no doubt suffered particular forms of prejudice and had had a particular historical relationship with the state, the authors argued, their situation in terms of their enjoyment of their human rights was not fundamentally different from “the rest of Tanzanian non-elite society”. The way forward therefore was for the Maasai to build alliances with the rest of civil society campaigning against the new land law because their concerns “fit in neatly with the current struggle in the country” against land liberalisation.

This important argument encourages us to study the common experience of evictions in urban and rural contexts, recognising their particularities and their histories, whilst seeking alliances beyond the immediate context of each eviction or threatened displacement. It cannot be doubted that the Maasai are subjected to egregious marginalisation and discrimination by the state that are backed up by orchestrated hate campaigns. The task is to articulate their struggles with those of others living with similar threats of dispossession. For, as Salar Mohandesi and Emma Teitalman remind us in their essay Without Reserves, we must recognise “varieties of enclosure”: urban dwellers are not immune to enclosure movements that deprive them of their livelihoods.

There have been calls for a commission of inquiry into Ngorongoro. In response, I suggest an elaboration of Wilbert Kapinga and Issa Shivji’s argument above: now is the time for social movements and civil society groups working against evictions – whether urban or rural – to lend the Maasai their support. We must make connections between the dispossession of the Maasai and the wider effects of the liberalisation of land laws and intensified land grabbing in Tanzania and in East Africa more generally.

–

This article was published in the Review of African political Economy (ROAPE).

The Commitment to Timely Elections unravels

Its remarkable successes notwithstanding, Somaliland’s democratisation process has been marred by recurrent delay and resultant disputes since its inception more than 20 years ago. Until just a few weeks ago, it looked as though for the first time, Somaliland would be holding its presidential election – due in November 2022 – on time. Following on from the successful and widely praised local council and parliamentary elections of May 2021, the government of President Muse Bihi had consistently confirmed its readiness to hold the polls on schedule. Allocations for the election expenses were made in the 2022 national budget, and the National Electoral Commission (NEC) was tasked with setting up a timeline. The government reiterated its commitment to the international donor community in Nairobi and in return secured financial support for the election.

However, prospects of a timely election were thrown into disarray in late December 2021, when the Somaliland Government started to change course by calling for the “opening of political parties”.

Background: Three Party Limit and derailed Party Licensing Cycle

Article 9 of the Somaliland Constitution limits the number of political parties to three. Arguably, this limits the freedom of association and the political space within the country. But based on historical experience of the first post-independence elections, this limitation is intended to prevent a proliferation of political parties along (sub)clan lines and to ensure that each of the three pursues a wide national base.

According to the original political parties law which governed the local council elections of 2002, three political parties were to be licensed out of so-called “political associations” contesting local council elections every five years. In 2011, a review of Law 14 – which governs the formation and selection of political parties – granted the three political parties a license of ten rather than five years. The logic behind the change was to provide more continuity and to give the three political parties the opportunity to compete in two presidential elections during the decade for which they would be licensed. However, the law did not factor in the recurrent delays in Somaliland’s electoral timetable: To date, the parties (Kulimye, Waddani and UCID), licensed in December 2012, only contested one presidential election in late 2017 (delayed from 2015). The next presidential election is due in November 2022, and the next local council elections are not due until 2026, but the licenses of the current parties expire on 26 December 2022.

A Party Election?

In 2021, the current administration proposed fresh amendments to Law 14 of 2011. These were designed to enable a direct election — not to elect candidates into offices, but only to determine the three political parties to be registered for a ten year period following expiry of the current licenses. The changes also included a clause that was detrimental to the opposition: Existing political parties would become “transitional” and would therefore be barred from competing in any presidential, parliamentary or local council election once the process of registering new political associations and parties was initiated. In effect, the revised version of the law would have “neutralised” the three existing political parties in May 2022.

Parliament passed the proposed amendments in 2021, but the government later changed course. It vetoed the amended law in a letter dated 20 July 2021, but only received by the (newly elected) Parliament on 21 August 2021. The President’s main objection was that the election period for the political parties would have been in conflict with the timeline of the constitutionally mandated presidential election. He requested Parliament to address this conflict between the Constitution and Law 14/2021.

However, sections of the government and some members of Parliament (MPs) continued to push for the implementation of the amended law, arguing that the President failed to reject the bill within the required 21 day period and that it had therefore become law. The call for the application of this controversial version of Law 14 infuriated the opposition parties, who saw their chance to contest in the presidential election thrown in doubt.

Wrangling over the legality of the 2021 amendments of Law 14 continued in the courts. The Supreme Court, in its ruling of 16 January 2022, affirmed the legality of the original Law 14 of 2011. However, the court endorsed one clause from the amended Law 14 of 2021 to enable the direct election of new political parties. Tensions were somewhat eased by the ruling. The leaders of the opposition felt that the court ruling favoured them because it did not accept the key proposed government amendment to Law 14/2011 that would have relegated the political parties to a “transitional” status at the onset of a fresh registration process. Although the court did not explicitly rule on the legality of the supposedly adopted new Law 14 of 2021, the confirmation of Law 14 of 2011 in principle gives the political parties – especially the opposition – a “new lease of life” to compete in the forthcoming presidential election.

Presidential or Political Parties Election first?

Law 14 of 2011 stipulates that the registration process for new political parties begins six months before the polling date[i]. The latter would be on 26 November 2022, one month before the expiration of the parties’ licenses on 26 December 2022[ii]. This would place the two elections in short sequence, starting with the presidential election on 13 November, theoretically followed by the political parties elections 13 days later, on 26 November 2022[iii].

However, statements by the Ministry of Information leave no doubt that the intention remains to select new political parties ahead of (not after) the presidential election, and to let the three newly elected national parties compete in it. The announcement of a new “Political Associations Registration Committee” by President Bihi at the end of January underlines that the government continues to pursue a swift “opening” of the political parties. The technical timelines of this process would inevitably lead to the postponement of the presidential poll.

In effect, this implies that the issue is not only a matter of sequence. Local commentators, legal and electoral experts strongly believe that only one electoral process is technically possible by November 2022.[iv] Prioritizing one election therefore automatically means pushing the second election beyond its constitutional (in the case of the presidential election) or legal (in the case of the parties election) timeline, leading to political crisis.

Meanwhile, the continuing confusion effectively prevents the electoral commission from mobilising the required funds, updating the voter register and preparing a technical process on time. Therefore the lack of clarity and the disagreement on the way forward jeopardizes the chances of realizing one or even both processes by November 2022.

Underlying Realpolitik

For all sides, but especially for the ruling party Kulmiye and the larger opposition party Waddani, the issue at stake concerns vital political and clan interests. The government’s sudden move to initiate the registration of new political associations has been attributed to recent changes in Somaliland’s domestic political dynamics.[v] Among these is Kulmiye’s unexpectedly poor performance in the combined elections of May 2021[vi], which local observers saw as an indication of voters’ rejection of government policies and performance as well as deepening rifts within the clan coalition carrying the current government[vii]. The situation was exacerbated when Kulmiye narrowly lost the highly contested election of the new Speaker of Parliament, effectively handing control over this key institution to the opposition. Both events are perceived to have led to a less favourable political atmosphere for the ruling party and its chances in the presidential election[viii] – a prospect that has obviously excited the opposition[ix].

Against the background of their disappointment during the 2017 presidential election and in light of their performance in 2021, there is a strong belief among Waddani supporters that their candidate would be able to defeat the incumbent President Bihi in 2022. Therefore, the interpretation among Waddani supporters is that the push for the opening of political parties is a scheme to deny the Waddani candidate any chance of contesting and winning the Presidency[x]. Whether these assumptions are true or not, it is safe to assume that a delay in the election would produce particularly strong opposition to a government term extension from Waddani quarters, raising the spectre of violent confrontation, particularly if the government resorts to physical intimidation to counter protests instead of exercising political tolerance and self-restraint.

The circumstances are particularly sensitive on account of the underlying clan constellation and the assumed formula of “power sharing through rotation” – a concept that does not align easily with electoral democracy. At the centre are the three major Issaq sub-clans: Habar Awal, Habar Je’lo, and Habar Younis, whose capacity to work together and accommodate each other has been essential to securing Somaliland’s long-term stability. The election of Ahmed Silanyo as President in 2010 was seen as a political accommodation of the Haber Je’lo, who believed that their “turn” to hold the highest office of the land had arrived. Similarly, there is an expectation of a Habar Younis to be elected in 2022 (as there was in 2017). Waddani party is the primary political vehicle of the Habar Younis. A second failure of the party/clan to win the Presidency – especially if based on a procedural manoeuvre and a suspected manipulation of the process – would put Somaliland’s democracy under severe stress.

Scenarios

Several scenarios are on the horizon. In the first, the government continues to pursue the process of opening political parties immediately, with the intention to hold the contest over the licensing of political parties before the presidential election. The resources to cover the process are available and it is expected to kick off officially in May 2022. While President Bihi has already appointed the Political Party Registration Committee (RAC) to oversee the vetting of political associations, they are yet to be confirmed by parliament.

In this scenario, the government would hold the political parties’ election before November 2022, capitalising on strong public support for opening the political parties. This would likely split and weaken the opposition parties who would not be able to challenge the popular demand. Following the election, government would likely seek to reach an agreement with the emerging parties on a new election date and an extension of its term based on a technical timeline developed by the NEC. This scenario entails two distinct risks: Either the Guurti, the Upper House of Parliament, endorses a “technical” extension pitting the ruling party Kulmiye against either weakened or entirely new, unfunded and largely unprepared contestants; or, the Guurti – as in the past – affords the President a generous extension by e.g. two more years in office and once again jeopardizes the electoral cycle.

The second scenario is that the process falters and the government does not succeed in its bid to hold the political parties contest before November 2022 due to strong challenges from the opposition and other interested stakeholders. The opposition would likely accuse government of circumventing the election bodies, i.e. the RAC and the National Electoral Commission (NEC), and manipulating their mechanisms to achieve a certain outcome of the process. The opposition and some political aspirants are already referring to the new members of RAC as “partisan”, since four of the seven proposed commissioners are members Kulmiye party. Protracted political deadlock would drag the process out and would “necessitate” an extension of the government’s term by the Guurti. Under these circumstances, the Guurti would adopt such an extension without a prior consensus between the stakeholders. If unmitigated, this would return Somaliland to political crisis comparable to the ones that engulfed the country from 2008 to 2010 and between 2015 and 2017, the two two-year spells that followed the respective term expiries of President Rayale and President Silanyo. Except that in this case, the licenses of the current political parties would expire on 26 December 2022. Without remedy, this would throw the country into a severe and unprecedented constitutional crisis. In the absence of these legally recognized bodies, it would no longer be clear who the legitimate stakeholders for consensus building to resolve this crisis would be. This could further encourage the opposition leaders to threaten establishment of a parallel government in defiance, as other opposition parties have done before.

In the third possible scenario, the party election process falters. However, the government and parties reach a consensus to extend both the term of government and the licenses of the political parties, e.g. for a period of two years. The government term extension would have to be adopted by the Guurti, the parties extension would require an amendment of Law 14 by the parliament. In this scenario, extension of the parties’ licenses would lead the opposition to accept the extension of the government’s term more easily[xi]. In fact, some argue that this could even be a preferred outcome of the crisis for some opposition leaders, as it would be more likely to make Muse Bihi a one-term president and would buy the opposition time and opportunity to build momentum. Early indications are that forging such a “deal” would not be an easy undertaking. The opposition parties’ right to stand in the (delayed) presidential election would certainly be a key point of contention. Needless to say, political actors outside the current trio of existing parties who are preparing to register new associations would passionately oppose such a scenario, since it would deny them the chance to enter the political playing field.

The fourth scenario would be a return to the presidential election timeline as mandated by the constitution. This would require swift consensus between the political parties and the government to postpone the “opening” up of political associations and to extend the licenses of the current parties through yet another amendment of Law 14. Presidential elections would take place – only between the existing political parties – on 13 November 2022. Like the third scenario, such a move would dash the hopes of aspiring political associations and a large section of the public which was generated by the government’s earlier signals towards the opening the party registration process.

Technically, there would also be the (remote) possibility of holding the two processes together, i.e. electing a new President and the future political parties on the same day. However, this option is widely thought to risk serious confusion. Aspiring new political associations would complain of being cut out of the presidential competition, and having nothing to fundraise or build momentum around until the next scheduled elections in 2026. Theoretically, the election could also lead to a “President without party”.

There does not seem to be final clarity on whether the presidential contest will be between the old or new political parties, despite signals towards the opening of political associations. This question will guide whether Somaliland heads into scenario 1 (new parties) or scenarios 3, 4 or 5 (old parties). The prevailing public sentiment and the visible political indications suggest that the country is in scenario 1. However, delays caused by the foreseeable confrontations over the RAC and its process have a strong potential to push it towards scenario 2. Scenarios 3 and 4 would depend on consensus building between the existing political parties and are unlikely to materialise in the absence of significant changes in Somaliland’s political dynamics and landscape. Scenario 5 is a remote possibility.

Reform the Party System?

Since the adoption of the constitution in 2002, calls for reforms to deal with the restriction of political parties have been constant. Today some MPs believe the on-going debate could be an opportunity for broad discussions on the restriction of political parties, and to come up with an enduring solution that prevents the problem from resurfacing every 10 years[xii]. Indeed, there is need to re-think the political party system beyond the immediate challenge. Political observers tend to view the restriction of political parties as undemocratic and in contradiction to the constitutional right to freedom of association[xiii]. What was once conceived as a temporary measure to secure the gradual development of Somaliland’s democracy has in reality allowed three entities to form an oligopoly that controls the political space.

Moreover, it is increasingly clear that the three-party-limit has failed to achieve its stated intention, namely to promote political parties with a broad national base. Instead, all three have strong and identifiable clan allegiances. Political actors tied together in identity-based segments rather than policy-based units are hardly fit to pursue national interests. More so as the political parties as well as the Registration Committee have been overly focussed on the rights and registration of the parties as entities, whilst showing little to no regard to the democratic duties that come with these, especially in a context where only three parties are allowed to compete. As a result, the parties have de facto been owned by a handful of leaders with very little concern for democratic practices within their own structures.

Neither the 2002 nor the 2012 elections of political parties (through local council elections) produced democratic and inclusive political parties with a broad national base as intended by the constitution. Rather than evaluating and rectifying these challenges, Somaliland is now in the midst of repeating the same exercise, expecting a different outcome. In fact, if anything, detaching the political parties election from an actual contest for offices (as in the local elections) is likely to reinforce the problem.

Therefore, regardless of how the current standoff plays out, it will be important for Somaliland to “re-invent” itself in this area. Political parties have been vital to the consensus-based state-building process in Somaliland. They must continue to play this role without holding the country’s political space “hostage” in the long term.

Conclusion

The best hope of overcoming the current electoral preparation challenge and the seemingly perpetual cycle of electoral delays and crisis would be through a return to consensus politics, the remedy to which Somaliland has traditionally turned in moments of fierce political contestation. Somaliland’s political leaders should cooperate to reach a political compromise at the negotiation table. However slim, the opportunity to set a consensual electoral timeline and stage peaceful elections still exists, and should be pursued at all costs.

Somaliland rightly earned praise from both domestic and international observers for holding peaceful and transparent parliamentary and local council elections on 31 May 2021[xiv]. At the time, the international community[xv] and the people of Somaliland commended the President and his administration for organizing the long overdue polls and financing 70%[xvi] of the election operation.

If Somaliland’s political elites were to capitalize on these successes by forging a political consensus on the key challenges to holding the two processes, they would spare the country the grim prospect of acute political tension and possibly even violent confrontation. They would also capitalize on the unique opportunities of the recent spike in international interest in Somaliland and reinforce its distinct political trajectory from Somalia at a time when the latter is still struggling to stage even indirect elections a year after President Farmajo’s electoral term expired. And, last not least, President Bihi would continue to demonstrate the kind of leadership he provided after the opposition’s strong performance in the 2021 elections, allowing Somaliland’s democratic process to continue to thrive. Without doubt, the world is craving for such “rare good news in the troubled Horn of Africa”.[xvii]

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This article was published in collaboration with Hbs Horn of Africa.

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[i] See Article 6.5 of Law 14/2011: http://www.somalilandlaw.com/Political_Parties___Assoc_Law___Amends__20…

[ii] According to an MP with legal background, in a press conference held in Hargeisa in January 2022.

[iii] The registration process would begin on 26 May 2022.,

[iv] Phone interview with a member of NEC, Hargeisa, 18 January 2022. According to Local commentators and legal expert on local satellite TVs analysing the court ruling on Jan 16, 2022

[v] Suleiman Ibrahim Hashi, local political analyst, MMTV Somali on 12 January 2022. See: https://youtu.be/-Esa4v_VImc

[vi] International Crisis Group (ICG), 2021: Building on Somaliland’s Successful Elections. Crisis Group Africa Briefing N°174. Nairobi/Brussels, 12 August 2021. https://www.crisisgroup.org/africa/horn-africa/somaliland/b174-building…

[vii] Informal discussion with media people, Hargeisa, 13 December 2021.

[viii] Informal discussion with media people, Hargeisa, 13 December 2021.

[ix] Informal discussion with media people, Hargeisa, 13 December 2021.

[x] Informal discussion a Waddani youth supporter. Hargeisa, 11 January 2022.

[xi] Phone conservation with former MP. Hargeisa, 16 December 2021.

[xii] See e.g. https://qarannews.com/daawoshir-jaraaid-xasaasiya-oo-uu-qabtay-xildhiba…

[xiii] Michael Walls (et. al.) 2021: Limited International Election Observation Mission Somaliland House of Representatives and local council elections, 31 May 2021, DPU Consultancy Report. October 2021. See: https://www.ucl.ac.uk/bartlett/development/sites/bartlett_development/f…

[xiv] ICG 2021.

[xv] https://hornobserver.com/articles/1039/EU-commends-Somalilands-recently…

[xvi] Academy for Peace and Development and Institute of Public Policy (APD-IPP) (2021): A Vote for Change: Somaliland’s Two Decades Old Electoral Democracy, May 2021. https://apd-ipp.com/2021/05/24/a-vote-for-change-somalilands-two-decades-old-electoral-democracy/

[xvii] ICG 2021.