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The Kenyan Supreme Court’s BBI Judgment – Part III: On Referendum Questions, Other Implications and Untidy Endnotes

6 min read.

This is the last of three articles in which Gautam Bhatia analyses the judgments of the High Court, the Court of Appeal and the Supreme Court following the constitutional challenge to the BBI Bill.

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The Kenyan Supreme Court’s BBI Judgment – Part I: On Constitutional Amendments and the Basic Structure

This is the third and concluding article about the Kenyan Supreme Court’s BBI judgment. The first and second articles can be accessed here. In this article, I will end by examining some of the possible implications of the judgment of the Court, going forward.

Distinct and Separate Referendum Questions

Recall that one of the grounds on which the High Court had invalidated the BBI Bill was that all seventy-four amendments had been lumped together as a “package”. The High Court had held that under Article 257, potential amendments would have to be placed before the People as distinct and separate referendum questions. The Court of Appeal was split on the point, but arguably, a majority of the bench held that at the very least, a “unity of theme” approach would have to be followed: that is, potential amendments that were thematically unrelated could not be lumped together in a package. The one exception was Tuiyott J, who held that the issue was not yet ripe for adjudication, as the IEBC was yet to frame the referendum question – or questions.

A majority of the Supreme Court agreed with Tuiyott J on this point. Thus, while the judgments of the High Court and Court of Appeal were set aside, the question still remains open for adjudication.

In my submission, however, while the Supreme Court did not explicitly decide the question, the overarching logic of its judgment(s) strongly implies that when the question does become ripe at some point in the future, the unity of content approach is to be followed.

The reason for this brings us back to our discussion in the previous post: going forward, any interpretation of Article 257 of the Kenyan Constitution must be informed by the Supreme Court’s finding that the purpose of the tiered amendment process is to provide internal constitutional safeguards against abusive amendments, and – specifically – against the culture of hyper-amendment. Indeed, it is particularly interesting to note that for more than one judge, the fact that no constitutional amendment had been successfully pushed through in the twelve years of the existence of the 2010 Constitution was evidence that the internal safeguards were working.

But now consider the consequences had the High Court’s judgment in May 2021 not stopped the (somewhat advanced) Article 257 in its tracks. Had the process been completed successfully, in one fell swoop, the Kenyan Constitution would have gone from having never been amended in twelve years, to having been amended seventy-four times in twelve years – and if anything can be called a “culture of hyper-amendment”, seventy-four amendments in twelve years would surely fit the bill!

The purpose of the tiered amendment process is to provide internal constitutional safeguards against abusive amendments, and – specifically – against the culture of hyper-amendment.

It is therefore not enough to say that the tiered amendment process provides an adequate internal safeguard against hyper-amendments. The tiered amendment process – as set out under Articles 255 – 257 – still leaves a range of interpretive questions open, and precisely how effective it is against hyper-amendments depends on how the courts answer those questions. It is easy to see that lumping all potential amendments into one referendum question is an enabler of hyper-amendments. As Musinga (P) rightly pointed out in the Court of Appeal, this enabled a culture where, in order to push through a potentially unpopular amendment, its proponents will include a range of “sweeteners” to make the Bill as a whole palatable – or, alternatively, raise the cost of not voting for it.

One can see a direct link between this kind of constitutional jockeying and the culture of hyper-amendment. It is therefore my submission that the constitutional silence in Article 257 on the question of distinct and separate referendum questions ought to be resolved in favour of the unity of content approach, as that is the interpretation that would further the purposes of Article 257 in checking hyper-amendments. Indeed, this interpretive approach matches precisely the Supreme Court’s approach to the popular initiative question. Article 257 was silent on whether the president could or could not initiate a popular initiative. The Supreme Court engaged in a purpose interpretation of Article 257 to hold that he could not, because the contrary interpretation would defeat the objective of the popular initiative. The same considerations apply to the issue of distinct and separate referendum questions.

Constitutional Gaps

On at least two crucial issues, the Supreme Court’s judgment was informed by a gap in the Constitution that was meant to be filled in by statute, but hadn’t yet been. The first was the issue of public participation. The second was the issue of the initiation of a popular initiative.

The first issue had also been discussed by the judges in the superior courts below. In the absence of a statute setting out the scope and content of public participation under the Article 257 process, the Courts were forced to stumble around a bit and search for the light, although the judges did eventually – relying upon the constitutional standard of public participation – return findings either way on the subject. Assuming, however, that at some point a law is passed that sets out its details, it will be interesting to see how the courts scrutinise its adequacy; any such scrutiny will now need to be judged against the standard of whether or not the statute can serve as a strong enough bulwark against abusive amendments and hyper-amendments. Thus, issues such as time to scrutinise bills, language, accessibility, and so on, will need to be considered from this rubric.

In order to push through a potentially unpopular amendment, its proponents will include a range of “sweeteners” to make the Bill as a whole palatable

The second issue finds mention in Mwilu DCJ’s judgment, although its echoes are present from the High Court, to the Court of Appeal, and to the Supreme Court. This is the issue of the popular initiative. Eighteen out of nineteen judges who heard this case agreed that the president cannot initiate a popular initiative under Article 257. The devil, however, is in the detail: in the present case, the president’s involvement – through proxies – was too overt and too categorical for most of the judges to ignore. One can easily imagine, however, that stung by this reversal in all the Courts, a future president might just decide to be a lot more subtle about this, and put in substantially greater distance between themselves and their proxies.

At the Court of Appeal, Tuiyott J, and at the Supreme Court, Koome CJ, both exhibited a keen awareness of this problem, but at the end of the day, beyond applying good judicial common sense, there is only so much that Courts can directly do to prevent executive “hardball”. This is why Mwilu DCJ probably had it right when she listed out a range of issues – such as, for example, whether promoters could be members of political parties, or political parties themselves – that might arise in the future. And the fine-grained character of these issues indicates that they are better off addressed by the legislative scalpel rather than the judicial sledgehammer. Of course, the risk here is, given that Article 257 is meant to be a constitutional amendment route that serves as an alternative to parliament, parliament itself legislating on the scope of who can activate Article 257 will raise potential conflicts of interest. That is perhaps inevitable, and once again, it might just be the case that the issue will ultimately find its way back to the judiciary, and that the courts will need to consider at what point the indirect involvement of state actors reaches a threshold where it starts to threaten the fundamental purpose of Article 257.

Parliament itself legislating on the scope of who can activate Article 257 will raise potential conflicts of interest.

Indeed, there is good reason to think that the BBI litigation marks the beginning and not the end of the story. Coming away from the judgment, we find that there is a window open for judicial intervention to stop constitutionally destructive “amendments” (although it is no longer being called “the basic structure doctrine”), but the length, breadth, and design of this window is also … open (pardon the pun). We also find that it has now been firmly established that the purpose of Chapter XVI – and, specifically Article 257 – is to constrain the imperial presidency, check abusive amendments, and safeguard against hyper-amendments. But as history shows, the imperial presidency is not so easy to contain – its “taming” will need more than one set of judgments – but rather, it is a constitutional commitment that will need to be renewed and renewed again. Stopping subtle and indirect hijackings of Article 257, package-deal referendums, and inadequate public participation (to name just a few threats) will all be part of that renewal.

Conclusion: Shadow and Light

It remains to end with a disclaimer (or two). As one of the amici before the Supreme Court of Kenya in the present appeal, my analysis is naturally situated within that broader context, and the arguments I have made in these three articles reflect some of the arguments in my amicus brief (I am particularly grateful to the Court for having admitted the brief, and then – across multiple judgments – engaged with the arguments closely and in depth). Indeed, these arguments reflect a broader set of intellectual commitments I bring to interpreting Constitutions; I believe that Constitutions are fundamentally about power relations, about deciding who has power and who doesn’t, who gets to wield power and upon whom it is wielded, and how power (state power, in particular) is to be confronted, mitigated, and contained. Our task as interpreters is to try and ensure that Constitutions live up to their own goal (often stated in the Preamble) of democratising power, and of checking abuse and impunity.

Having had the opportunity to engage so deeply with these questions in the context of the Kenyan Constitution over the last one year has been a privilege. As an outsider who has tried to approach the subject with respect and humility, but who – no doubt – has often put his foot in it, it has been particularly wonderful to experience the openness and generosity with which the Kenyan interpretive community has treated me; for that, I am deeply grateful. After all, as Yvonne Owuor once wrote, there is a “cartography not of possession, but of – how odd – belonging.”

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Gautam Bhatia is a constitutional lawyer based in New Delhi, India.

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A Diasporan Oromo Visits Kenya: A Reflection

Being from the Ethiopian side of the border, travelling and getting to know my people on the Kenyan side has brought me back down to earth regarding the way I have previously viewed the Borana Oromo.

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A Diasporan Oromo Visits Kenya: A Reflection

I left Oromia just before turning two years old and I grew up among the first Oromo people to call Melbourne home. I vividly remember the days when we were so few that, in Clayton South, the suburb in which I spent 16 years of my life, there was an Oromo family on almost every block. Being such a small community, we didn’t scatter across the breadth of the city but huddled together in a small enclave for safety, support, and the comfort of familiarity. In those days, weddings, birthday parties, funerals, and other community events were attended by people from all the regions of Oromia who made up our little community.

But as our community grew in number, and as the number of people from every region of Oromia grew, I started to see a divide in how we congregated. By my mid-teens, I was almost completely disconnected from the spaces and networks that included Oromo people from outside the Arsi region, where I come from. Naturally, as I reached adulthood, I attended cultural and community events on my own initiative rather than at the invitation of my family. I started to learn about my community all over again. And in the course of this experience, I was never directly and deliberately taught who the Oromo are, who I was as an Oromo, and how and why other Oromo people were different, or the same, to my family. 

Whereas this learning is experiential for one growing up in Oromia, there are gaps when this way of learning is transferred to the diaspora, or even to urban areas in Oromia, and so more recent generations are developing different tools and spaces for learning Oromo identity, culture, and history. What I did learn experientially though, were the nuances that make one a person from Wallaga, another from Haararge, Shewa, Arsi, etc.

Still, l had little knowledge regarding the Borana Oromo. As one who developed Oromomumma (Oromo identity) in the diaspora, and as someone who has spent over a year and a half living in the homes of Borana and Orma Oromo in Kenya, my relationship with this part of my community has developed in an intriguing and adventurous way, and it holds a special place in my heart.

I met Addee Jiloo, a Borana woman, in my early twenties. Each time I had attended Irreechaa (an Oromo thanksgiving festival), it was Addee Jiloo that led the procession to the water. If a woman needed her Gutino (Borana cultural dress) tied at an event, we would frantically search for Addee Jiloo. If we had public events, she would be the one conducting the coffee ceremonies. In many ways, she was collectively identified as a keeper of cultural knowledge, a leader of cultural practice, and an advisor on cultural affairs.

Over the years, I remember repeatedly hearing that “Borannii Hangafaa Oromo”, that the Borana are the oldest of the Oromo. This refers to the position Borana and Bareentu, as the first sons of Oromo, hold as the moieties of the Oromo nation. I had also come to learn that the Borana were among the few Oromo to still practice the Gadaa system, one of the greatest cultural assets of the Oromo nation.  To me, the Borana felt almost like a thing of legend, a mystery to be revered and respected. They seemed to know things about being an Oromo that others didn’t. They seemed to have succeeded in preserving practices that the rest of us were no longer connected to. They seemed to be Oromo with the kind of defiance, resilience, and resistance that I wanted to embody. Although, from what I could see, it seemed like the Borana did so without the existential effort I sometimes felt it took to embody Oromummaa.

Language

I stayed with a Borana family for a few months when I first moved to Nairobi, but for the first few weeks of my stay, I had almost no idea what anybody was saying. I was used to most Afaan Oromoo dialects and Addee Jiloo’s dialect never sounded very different from anybody else’s, so my Kenyan experience sent me into a state of severe culture shock. With time, however, I became used to the difference in dialect and was able to improve my communication and now you can probably detect the influence of the Borana dialect in my spoken Afaan Oromoo.

In many ways, she was collectively identified as a keeper of cultural knowledge, a leader of cultural practice, and an advisor on cultural affairs.

Almost simultaneously with this sense of shock came a sense of overwhelming awe and admiration. Afaan Oromoo is a language that you feel. It is poetry in motion. Intimate, alive, revealing.  I found this exemplified in the Borana dialect.

When I first heard my host answer the phone and greet the person on the other line with, “Qileensii urgooftuu?” Is the air fragrant? I almost wept. Welcoming a guest, the Orma of Tana River along the northern Kenyan coast, say “Diyaadhaa”, come closer, be close. This is a common saying among the Borana and Orma people, and I experienced it frequently during my stay in Tana River. If language is supposed to connect us, I think that the breadth of the Oromo language does so profoundly, and the dialect spoken amongst the Borana and Orma achieves this objective to grand effect.

Traveling up north

When I travelled to northern Kenya, I was bubbling with expectation. I remember sitting at a small shop trying to recover from the long journey, and striking up a conversation in Afaan Oromoo with the shop owner. He responded in a mix of Swahili and Afaan Oromoo. We continued talking and I told him that I was an Oromo from the other side of the border. This meant, well, not much at all to him.

I had expected a dramatic reunion. What I got was a shopkeeper who was not surprised or touched in any way by my presence. The cultural and linguistic relationship that we shared, despite the borders, was not profound for him. The reason that this surprised me was that, when I visited Tana River, there was a palpable sense of connection with everyone I met, for the very reason that we had a shared identity across borders.

Given that I was closer to the border of Oromia and I was in a place that was, in many ways, more engaged with the Oromo cultural and political identity, I think I expected this sense of connection to be amplified. What I experienced after leaving this shop showed me that it was actually because of the consequence of this proximity to Oromia’s border and the political landscape of the area at large, that meant that Oromos connecting and sharing experiences across borders was no special occurrence.

I sat for lunch in the compound of an ordinary looking house. As we ate, a friend, someone who had grown up in the town we were in, began to tell me stories about where we were. In 2002, the house we were in was the target of a bombing by Ethiopian government forces. Luckily, nobody was home. Chief Ibrahim Abdi Dido and his family lived in the house at the time. In the same year, Chief Buke Liban, Chief Taro Sora, Chief Denge Okotu, Chief Huqa Guled, Boru Jiloo, Sheikh Hassan (Moyale), Qasim Abdi and many others were similarly targeted by Ethiopian government forces and in most cases, these community leaders, and oftentimes, their families, did not survive.  Although I knew a little about how the Ethiopian government targeted Oromo people across the border in Kenya, including the kidnapping and assassination of political refugees in urban centres, the arrest and extrajudicial killing of young people, and the displacement of communities, in the months that followed, I learned that the extent and severity of this persecution was far greater than I had first understood.

When I first heard my host answer the phone and greet the person on the other line with, “Qileensii urgooftuu?” Is the air fragrant? I almost wept.

Through listening to the stories of the many people I met on my travels, I also learned that local cultural leaders played and continue to play a role in this persecution by collaborating with the Ethiopian security forces. This was sobering to understand because it resembled the dynamic that’s been at play across Oromia since the onset of Abyssinian colonisation, whereby Oromo people, including local leaders, have opted to participate in the violence perpetrated against their own people.

My experience in northern Kenya brought me back down to earth regarding the way I viewed the Borana Oromo. I was in a place where the people were living with the challenges and consequences of choosing to live their Oromoness every day. Just as it would be incredibly weird for me to go to Wallaga or somewhere in Eastern Haragee or Balee and start wandering around asking people if they thought it was wonderful that we share a language, culture, and political reality (which I have never done), it was weird for me to do so in northern Kenya too.

The Oromo of Ethiopia and the Oromo of Kenya are, in many ways, fighting the same fight. Both make huge sacrifices for the political struggle, and suffer the consequences of this, along with enduring the consequences of simply being an Oromo in relation to the Ethiopian state, political activity or not. The indifference of the shopkeeper I met at the beginning of my travels makes sense. He experienced the same, if not more, breadth and depth of Oromummaa as I did; there was nothing novel I offered him in being an Oromo from the other side of the border.

The Borana-Gabra conflict 

When I arrived in northern Kenya, I remember getting off the bus from Nairobi and wondering why on earth it had dropped me so far away from the town I was going to, only to learn that it was an Orma-owned bus company, and they were careful about infringing on the territory of the Borana. The same person who told me the story about the house in which we ate lunch has lost family to protracted conflict between the Borana and Gabra people. When I asked him what the root cause of the conflict was, he said, “It just started a long time ago. We speak the same language, we are the same people, but a feud that started between a few, a long time ago, has continued on.” I didn’t know if the origins of the conflict were as vague as my friend described them to be, or if his description is just how the existence of the conflict feels to someone who has suffered because of it, but I did come to learn that access to resources like water and land between nomadic pastoralists (Borana) and settled subsistence farmers (Gabra) and ongoing political power struggles play a huge role in the enduring and deadly conflict.

Lamu

Many years ago I spent some time in Lamu and I met two Orma people on the Island. At the time I thought that it was just a bizarre coincidence that they were there but I now know that the Orma have been living in the northern coastal region of Kenya since the late 1800s.

Being from the Ethiopian side of the border, a landlocked country, it is very interesting for me to think that I share a language, history and, even if only in small ways, a culture with a people that have lived along the coast for over a century. The Oromo worldview places great emphasis on our relationship with and duty towards land. As one develops the essence of Oromummaa, I believe that a person intuitively connects with this worldview. From this perspective, learning that we are connected to a people whose relationship to land is connected to the ocean — there is just something about that that stirs something in me.

I was in a place where the people were living with the challenges and consequences of choosing to live their Oromoness every day.

Who we are as a people is infinitely complex. I am talking about the Oromo, of course, but I think I’m also talking about us all. If I have learned anything over the past year and seven months, it is that I will only ever keep living and reliving this one truth: people, their stories, and their lived realities are not linear, rigid, or made to be easily and simply comprehended. Life exists on a continuum of relationships and storytelling. I want to remain willing to relate to who people are, as they are, rather than clinging onto what I have constructed of a people through imagination, hearsay, and the effects of groupthink. I want my analysis of the world to shift and change as I learn and grow, and I want my posture of service to people to also shift and change as I learn anew. Getting to know my people on the other side of the border has taught me that state violence is pervasive, unconfined by borders, and resistances adapt accordingly. I also learned that I can do little to effect real and lasting change if I do not cultivate my ability to meet the complexity in individuals and in communities with a willingness to learn and an openness of heart and mind.

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Populist Political Candidates and the Pastoralist Agenda

Pastoralists and other marginalized communities need to closely scrutinize the politics and programmes of the election candidates that are after their vote.

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Populist Political Candidates and the Pastoralist Agenda

At the approach of the 2022 elections, and with every vote crucial, populist candidates from the major national political parties are appealing to pastoralist communities, especially those in rural areas. However, nothing substantive is promised would improve the well-being of these communities. Instead, candidates focus on programmes that are based on “individual well-being” and nothing at all on the “group rights” that are so critical to the livelihoods of the (historically marginalized) pastoralists, minorities and indigenous peoples.

Such framing could result in under-representation, inequality, and discrimination in policy and development processes. Pastoralists and other minorities should carefully interrogate the policies, strategies, and programmes of such leaders. They should be wary of candidates that are averse to the respect for pluralism. Most populists do not acknowledge the different conditions obtaining for certain segments of the population such as pastoralists. This is even when the constitution recognizes the same. They would rather see pastoralists’ social-economic challenges through the same lens as that with which they view other Kenyan social-cultural groups. This demeans the constitutional prescription that the historical marginalization of groups that depend on group-based livelihoods requires special interventions such as affirmative action programmes.

Rising Populist appeals

Populist appeals by Kenyan politicians have a rich history. Since independence in 1963, populist appeals have been variously employed by politicians during election periods to mobilize support from rural and urban poor. J.M Kariuki and Bildad Kagia are known to have taken sides with the “marginalised poor” against the corrupt elite; the two were up against the confluence of economic, and political power (in Kenyatta and his close co-ethnics) which had rendered redistributive policies unworkable. More recently, populist overtures by presidential candidates target segments of the voting population such as the pastoralist communities of northern Kenya and other ethnic minorities or marginalized groups, including those that self-identify as indigenous peoples.

While seemingly persuasive programmatic promises have been liberally made by populist candidates to Kenyans in general, pastoralists and other minority groups are beginning to realize the inability of political parties to respond to their issues. To them, parties have yet to become effective agents of democracy, national development, and national cohesion. Instead, major parties only articulate the communal and personal interests of their respective leaders.

Personal interests are therefore conflated with communal or ethnic interests. Usually, substantive issues and interests of pastoralists and other minorities are merely glossed over, if not altogether ignored. For instance, in spite of comprehensive and authoritative economic, social, cultural, and political records of historical injustices that have for decades been visited upon the pastoralists of the north and other minorities, politicians hardly address these issues on the campaign trail and no mention is made of how the recommendations of the Truth Justice and Reconciliation Commission and other offices could be implemented.

Even as drought continues to ravage northern Kenya, leading to massive deaths of people and livestock, little has been heard from the various presidential candidates in terms of remedial and developmental programmes for the region. That is, with the exception of Democratic Party leader, Justin Muturi, who, during the inauguration of his campaign, promised to develop a “Marshal Plan” for northern Kenya once elected.

Local politicians have not been any better at profiling the needs of pastoralists in their parties or national platforms. Mohammed Guleid, CEO of Frontier Counties Development Council (FCDC) noted that: “Unfortunately, the political class, even those from the hardest-hit regions who are supposed to lobby for more intervention from the government, are lazing and drinking cappuccino in fancy Nairobi hotels,” adding that the “Majority of them are hanging around presidential candidates who seem not to have any feelings for the dire situation. The country is in an election mood and politicians don’t care about the plight of the pastoralists.”

It is noteworthy that nothing substantive seems to come of the closeness pastoralist leaders enjoy with the various major party leaders and prospective presidential candidates. While leaders from other regions are cutting substantive “deals” with other national parties and presidential candidates, northern Kenya leaders are presiding over internal/intra-regional incoherence and fragmentation. This has substantially weakened advocacy struggles towards more inclusive, representative, and democratic norms and structures for the political participation of the marginalized. Perhaps it is for this reason that Guleid saw the need for the region to have a spokesperson that could better project and protect the interests of northern Kenya pastoralists.

Alienating minorities

The political parties only reflect the approach of many previous governments where policies were designed and implemented to fit all social-cultural groups irrespective of their different circumstances, leading to greater marginalization for some groups. In this respect, the dominant political parties have demonstrated their inability to positively respond to minority demands. For this reason, minority groups are slowly but increasingly becoming conscious of the need to re-calibrate their advocacy work, particularly through civil society.

At another level, and as a default mechanism, minorities are beginning to form their own parties. In effect, when the political paths through which to channel their demands are blocked, minorities and indigenous peoples resort to more radical mobilizations. Advocacy occasionally turns into armed movements. The refusal of the Zapatista National Liberation Army (EZLN) in Mexico to form a relationship with any political party or to participate in electoral processes, clearly demonstrates this trend. The Biafra insurrection in 1967 Nigeria and the recent Pwani Si Kenya movement of the Mombasa Republican Council (MRC) at the Kenyan coast are indicative of this trend.

It is noteworthy that nothing substantive seems to come of the closeness pastoralist leaders enjoy with the various major party leaders and prospective presidential candidates.

The insignificance of the issues of pastoralists and minorities is best demonstrated by their minimal interaction with major political parties and candidates during the campaigns compared with other segments of the Kenyan population/groups and regions. Very few campaign rallies have been held in pastoralist areas such as Moyale, Mandera, Samburu, or Turkana.

Research by Pewresearch.org in 2016 showed that nearly half of Kenyans had attended a campaign rally. Yet, in reality, pastoralists in the north have had fewer encounters with presidential candidates compared to other regions. This is because fewer rallies have been organised in their regions. Leaders from pastoralist areas may occasionally be compelled to fund such campaign forums themselves. Otherwise, occasionally, delegations of leaders from the north appear not to have much choice but to converge on Nairobi, often at the invitation of the national patrons.

Given the history of populist presidential candidates and parties ignoring pastoralists’ issues and interests, even in cases where agreements have been reached through pre-election negotiations, it behoves pastoralists from northern Kenya, and other marginalized groups, to studiously interrogate the politics, strategies, programmes, and campaign and leadership styles of populist candidates to determinate their alignment with their substantive issues and interests before voting for them. This should include exploring how pastoralists and other minorities should engage with the candidates or craft a new path for future advocacy if need be. Otherwise, all the invitations they receive from populist candidates to vote for them will be just an invitation to further marginalization and discrimination.

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Kenya’s Giant Political Merger: Faustian Pact or Reshaping Reality?

We are entering that season of political recklessness that is expressed in the language of violence against the background of a merger uniting two formerly implacable political foes.

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Kenya’s Giant Political Merger: Faustian Pact or Reshaping Reality?

Scenes of Kenyans desperately queuing for fuel at petrol stations across the country have saturated the media in recent weeks. Official explanations haven’t really passed muster with citizens as the price of fuel continues to rise due to both local and international factors. The most readily accepted “local factor” is incompetence and corruption on the part of a government that has run out of foreign exchange at the same time as it is having to pull off a giant heist to fund the August general election.

Across the world a range of countries face similar scenes of economic distress, from Argentina to Sri Lanka and Lebanon. Even Pakistan is wobbly and the powerful regime in Turkey has had to manage the dramatic decline in its currency. Across the continent, Kenya has been added to the listalong with Ghana, Angola, Ethiopia and Zambiaof countries at heightened risk of debt default. Zambia has already defaulted on its international debt obligations.

Combined with power outages and a structural water deficit, the pressure is building as we go into elections. Election years are always terrible for the economy. Global inflation post-COVIDand with the Europeans getting properly stuck in a protracted conflictis now clearly reordering the world. Like some others in trouble, the Kenyan case is simple: those in charge of the country’s economic affairs have spent the last decade and a halfsince the 2008 financial crisis in the Westhigh on cheap credit and have avoided going cold turkey through expensive borrowing from European markets and from China. But the cost of booze has shot up and the cold turkey phase has kicked in, overseen by doctors from the IMF and World Bank last trained in the 1950s. A massive hangover is settling in and the hard-core addicts have started vomiting on tables and soiling themselves in full view of the global community. The UN’s World Happiness Report now ranks Uganda as the happiest country in East Africa at 117/144, followed by Kenya at 119/144 and Tanzania 139/144. Surprisingly, at 143/144, Rwanda, a poster child for the donor community, is the second most unhappy country on the planet! Britain will be sending its refugees there.

***

That said, combined with demographics, natural trajectory and cheap global credit, one of the incredible things China’s trillion-dollar Belt and Road Initiative (BRI) did was to create a brittle consumerist middle class in many African urban areas like Nairobia tiny iPhone-owning, Netflix-and-chilling, two-car-possessing, land-buying, globe-trotting, prosperity-gospel-church-going, single malt-swilling, aspirational, highly articulate, well-educated globalised class. Unfolding events are shredding this class in real time. Those in Kenya who read the tea leaves have bought apartments in Dubai, opened accounts in Mauritius and are bracing themselves for the impending storm. Among well-to-do Kenyans, a popular model is to have a child admitted to an American, Canadian or other Western University, then send the wife there to set up shop, find a mistress to entertain you in the interregnum here in Nairobi and, if the worst comes to pass you jet out and join Madam and the kids in Minnesota. There you quickly adjust to the reality that the policeman who stops you can kill you on a whim and that you can’t call the White House or Congress for someone to make your parking ticket go away.

For the lower middle class, however, the last decade has been a lost one.

Still, the election-related nervousness is understandable because history informs these concerns. On the 1st of April 2022, Raila Odinga’s campaign helicopter was stoned in the Deputy President’s Uasin Gishu heartland. One shudders at the thought of what might have happened had the chopper come down with the candidate in it, in that particular part of the country, with its particular history regarding election-related violence. But then, it does to keep in mind that violence is the language via which Kenya’s elites speak to one another, using the blood of their supporters. Today’s entrenched foes whose supporters attack each other with machetes are tomorrow’s political allies. Kenya’s stability is born of this fundamental cynicism that is baked into our system. But if violence is the language of our elites as they negotiate politics, the judiciary has since 2013 emerged as a significant occasional disruptor.

Those in Kenya who read the tea leaves have bought apartments in Dubai, opened accounts in Mauritius and are bracing themselves for the impending storm.

All this causes me to recall the catastrophic explosion at the Port of Beirut in Lebanon on the 4th of August 2020. Over 2,700 tonnes of explosive ammonium nitrate had sat at the port unsupervised for 13 years with the knowledge of the authorities. The unique stability of Lebanon obtained at the price of a deeply cynical political settlement between armed sectarian groups created the circumstancesthe corruption and inert stabilising incompetence that allowed the gigantic explosion to take place, killing 218 people, injuring over 7,000, leaving over 300,000 homeless and causing over US$15 billion in damage. Worst of all, the entire saga dented the confidence of some of the most resilient people in the Middle East who had put up with the corrupt political deal that had ended the civil war and allowed the belligerents to run Lebanon’s affairs.

***

Kenya is similar to Lebanon in some ways: a dynamic entrepreneurial private sector; a venal self-serving political elite willing to kill people merely to send messages to one another; an open society with a great media, civil society and basic freedoms in a neighbourhood not known for them. The weather is generally great too. Still, election periods are always nerve-wracking times. Like many African countries, though, Kenya has recovered reasonably from the COVID-19 pandemic, the economy is resilient, and the society is toughalthough that toughness will be tested over the coming three months.

A Mephistophelian political merger?

The political realignments occurring in the last three months have been breath-taking. This is characteristic of Kenyan democracy and, a bit like being a passenger in a matatu driven by a drunk, not for the faint hearted. Ultimately, 26 partiesincluding Raila Odinga’s ODM and President Kenyatta’s Jubileemanaged something last attempted in March 2002 between KANU, then led by President Moi, and the National Democratic Party, then headed by Raila Odinga: a legal merger into one political giant, the Azimio la Umoja-One Kenya Coalition Party. It is all the more unique because the merger unites two formerly implacable political foes against the president’s bosom buddy during the last two elections in 2013 and 2017, Deputy President William S. Ruto and the UDA party.

Ruto has also achieved something pretty unique: if the polls are to be believed, he, a Kalenjin from the Rift Valley, has managed to steal from a sitting Kikuyu head of state most of the political support in the president’s own heartland, among the Kikuyu, Embu and Meru people around Mount Kenya. This is an extraordinary achievement and may in part explain the extraordinary measures that have been taken to try to stop the Ruto juggernaut. Over the coming 100 days we shall see whether Uhuru Kenyattaalways the people-pleasercan, together with Raila Odingaalways the people-pullerregain some sort of political grip on the Mount Kenya vote for the election and simply to save face. The stakes are high and as I said, the election coincides with an economy that is being held together with political super glue, PR and the goodwill of friends.

All said, the merger and the coming election contest pale into insignificance when contrasted with the real issues that form the backdrop of our politics. Global tectonic shifts are underway: Europe is at war, China is on the rise, India, Turkey and other countries are increasingly assertive and independent at a time when they sense the end of the American hegemon.

And while our politicians gorge themselves into a stupor, we are in the middle of a drought that electioneering could turn into a famine; 3.5 million Kenyans are in food distress after three years of poor rains. The profligacy of the last ten years—the lost decade for Kenya’s millennials—is now costing us in real terms as inflation skyrockets and the IMF and others take over as the prefects of our economic management. The impoverishment of Kenyans, especially those who had their foot on the bottom rung of the middle class ladder, has been exacerbated by COVID and, most importantly, by an elite that either just doesn’t get it or simply doesn’t care.

This last consideration is perhaps the most troubling; that despite it all (for much has been achieved, many mistakes have been made, and billions of dollars have been stolen), despite this exciting messy mish-mash, the elite may not care. Some don’t care because their hearts are cold and they have never cared and others don’t care because they sincerely don’t know how and don’t understand. For them, Kenya is divided into their buddies on the one hand, and their employees and servants on the other. This latter category is disposable. Their murdered bodies can float down the Yala River with disturbing regularity but life continues, the party goes on.

As I said, we are entering that season of political recklessness that is expressed in the language of violence. But as I also said, Kenya is resilient and if we come out of it, we shall be bedraggled but perhaps much the better for it, forced to confront our own demons in stark ways. Kenya has the human capacity to punch its way out of the brown paper bag we find ourselves in.

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