​The period immediately following the 9th August general elections in Kenya was a rude awakening for many. In any contest where there’s only one winner, and so there the contrasting feelings of jubilation and disappointment are no surprise. What would shock a keen observer is the visceral negative reaction shock amongst a section of the supporters of the Azimio la Umoja side. The reaction went beyond disappointment; it was grief that quickly deteriorated into recriminations against any individual or group perceived not to have ‘given their all’ in support of Rt. Hon. Raila Odinga’s candidature.

This is Mr. Odinga’s fifth stab at the presidency, so the spectre of disappointing results is not totally new to his supporters, particularly those over 40 years old. Disappointment and even certain levels of anger have been de rigueur in past elections, but the inexplicable grief and recriminations have been unique to 2022. One unique feature of this year’s elections is that the narrative has portrayed those perceived not to have supported Raila not as competitors or rivals, but as evil saboteurs.

The result was a barrage of vitriolic abuse directed at Kikuyu people on social media, much of it written in Dholuo, which few Kikuyus can read or understand. We certainly hope that the Azimio running mate Martha Karua was somehow shielded from it because a significant proportion of the diatribe is sexist as well. However, those who are shocked and wondering just what happened in 2022 are deluded, because the question is guided by their powers of perception (or lack thereof) rather than by the sequence and consequence of events.

Faith in “The System”

The primitive and flawed history of our electoral structures certainly don’t provide any reason to believe otherwise. However, Kenya is also a nation founded on the dishonesty of colonialists, so we Kenyans still struggle to internalize the truths of political history, including those we have lived through and witnessed. The Luo nation is no exception to this rule, despite boasting several renowned historians and political scientists. The Luo nation has long lived with the well-founded belief that they (through the person of Raila Odinga) have been victims of electoral malpractice in the past.

When the much-vaunted ‘handshake’ between the Rt. Hon Odinga and former President Uhuru Kenyatta took place in 2018, the Luo nation greeted it with unbridled joy at the prospect that ‘one of us’ would finally ascend to the highest office in the land. It was almost comical to see the jubilation that greeted the symbolic launch of Kisumu port where Mr. Odinga was flown to Kisumu in a Kenya Defence Forces aircraft, a very potent (and deliberate) subliminal message, which they tried to actualize through the legally ill-advised “Building Bridges Initiative” (BBI).

In a conversation on the Maisha Kazini YouTube channel, we discussed at length how this project (which failed) was an attempt to entrench feudalism in our formal government structures. In a startling show of cognitive dissonance, the people who had fought so long for democracy and electoral justice mentally crowned Uhuru Kenyatta as a ‘King’ whose reign was ending and had magnanimously designated their leader as the crown prince. ODM leaders, notably Dr. Oburu Odinga crowed about the Uhuru’s endorsement and about the support of “the system” being a sure path to State House for Raila Odinga.

Sadly, this dissonance was so convincing that the people believed them, culminating in a toxic mix of relatively lackluster campaigns, while followers remained inexplicably assured of victory. The people who had steadfastly cast their votes for generations and fought for justice somehow discarded that legacy and internalized the belief that victory would be delivered by a combination of expected injustice and support from the alleged erstwhile perpetrators thereof. A mind-boggling conundrum by any measure.

It would be difficult for any mortal to derive reason from such a bizarre far-flung psychosocial situation, hence the extreme bitterness at the absence of a unanimous support for Mr. Odinga from Kikuyu voters (the decision of other Kenyan voters is not on the table). The Odinga supporters saw the failure of certain areas of Kikuyu land to support Odinga as a betrayal, and rather than recognize the significant number of votes that accrued from the Mt. Kenya region up from virtually nothing in 2017.

How can we explain this avalanche of opprobrium?

This reaction betrays the logic of the whiteness that is rooted in the coloniality of power in Kenya. Underlying the offence was the perception amongst the Luo proletariat that their Kikuyu counterparts had the temerity to reject the Luo liege, even after Odinga’s pact with his Kikuyu peer. Lack of attention to history blinded Odinga’s supporters, both in Luoland and the larger Kenyan intellectual class, to the fact that the Kikuyu proletariat did not view the handshake in the same way as the Luo voters did, nor did they relate to Uhuru the way the Luo did to Raila.

This oversight blinded them to the reality of the Mt. Kenya’s region’s rejection of Uhuru’s political machinations, as opposed to the rejection of Mr. Odinga himself. It was far from automatic that the Kikuyu would blindly follow Uhuru into the handshake. Mt. Kenya has had a fractured relationship with the Kenyattas from the very beginning. At independence, Jomo Kenyatta suppressed Mau Mau history and left Mau Mau veterans landless. Twice before, Uhuru Kenyatta had been rejected at the ballot by the Mt Kenya region: in 1997 when he contested as MP for Gatundu, and in 2002 when he contested to presidency. The rise of Uhuru’s acceptance in Mt Kenya was linked to the trauma of the violence against the Kikuyus in the Rift Valley following the botched elections of 2007, a violence which many Kikuyus attribute to Raila Odinga himself, since the violence stopped when Raila shook hands with Kibaki.

It was this trauma, and Raila’s perceived or actual responsibility in it, that Uhuru exploited in 2013 when he hired a British PR firm which rode on the ICC indictments to present Uhuru as an anti-imperialist freedom fighter. It was not tribal adoration that got Uhuru president, that is if he even won the vote. It was trauma, money and gas lighting by a heavy bureaucratic and intellectual artillery that later included the manipulation of social media by Cambridge Analytica.

The second issue that was overlooked was the anger of the Mt. Kenya region at the collapse of the economy. In his hubris, Uhuru failed to realize that huge infrastructural investments would not pacify ordinary people whose businesses were suffering as the Kenyatta empire grew. The milk industry, for example, is a case in point, where the Kenyatta family dominance in the milk industry was seen as the reason for the drop in the prices ordinary farmers were fetching for their milk. By the time Uhuru and Raila were proposing BBI, people in central Kenya, especially the youth, were saying they did not care for more power-sharing deals when they were not able to earn a living.

Coloniality and ethnicity

The failure to notice the cracks in the deal, due to casual attempt to merge political views of Mt. Kenya and Nyanza region, is linked to the fact that coloniality and whiteness manifested in completely different ways in the two regions. In Kikuyu land, coloniality was imposed through extreme violence, leading to the familiar stories of a society riven between the Mau Mau resistance and colonial collaboration. The Kikuyu have memories in form of living survivors and the trauma of the victims.

By contrast, coloniality in the greater Nyanza region, which included the Luhya regions of the northern Lake Victoria shores, was imposed by co-option through government bureaucracy, colonial education and conversion to Christianity. In Nyanza, there was no conventional rebellion warfare, and the only contact with the rebellion was in the person of the detainees imprisoned at Mageta island. And so coloniality was experienced as psychological more than material. The Africans who became the ‘whites’ were those who became educators, administrators, colonial apparatchiks and clergy. Their descendants still occupy high political offices and are much-admired personalities, such as outgoing governor Cornel Rasanga and Dr. Patrick Amoth of the Chief Amoth Owira family; Prof Peter Anyang Nyongo and the late Prof. Aggrey Nyong’o of the Canon Hesbon Nyong’o family; and the numerous political and business players across both Kenya and Uganda who are descendants of Canon Jeremiah Musungu Awori. Many songs praise men as ‘chal gi mzungu’. Many non-Luos may hear Luos refer to each other as ‘Odiero’ and think it is a very common name, but it is actually an honorific that means ‘white man.’

The only aberration in this historical link was brought about by the fallout between Jomo Kenyatta and Jaramogi and the consequent odium faced by the Odingas. This brought in the suffering narrative as an additional ingredient into Luo nobility. Up to the elections, the answer to any questions on Odinga’s leadership qualities invariably included references to how much he has suffered or sacrificed. With the passage of time and the monumental legal changes in Kenya, however, individual suffering was becoming a less “accessible” qualification, which placed Mr. Odinga on something of a pedestal. Others therefore could only seek distinction through the competence with which they served him and the conspicuous manner in which they displayed this service or consumed the proceeds thereof.  Philosophy scholar Joe Kobuthi recently identified this as a form of masculinity that is defined by conspicuous consumption, belying the casual humorous term ‘ujaluo’ used by less erudite people to describe it.

By contrast, whiteness in central Kenya was mostly defined by collaboration against the rebellion. The reward in Mt Kenya for collaboration was entry into government, and access to government contracts and title deeds as a way of climbing the social ladder. In central Kenya, people who pursue school education do not enjoy the same clout that is enjoyed by people with access to wealth. A prominent example was Prof Wangari Maathai who won the 2004 Nobel Prize but lost her parliamentary seat in the 2007 elections. Her international accolades did not win her a free pass to parliament.

Within this matrix, it was difficult to notice major forewarnings that the Odinga bargain was likely to collapse. In January 2021, news broke surrounding a leaked letter allegedly from then Murang’a Senator Irungu Kang’ata to president Kenyatta, which warned that BBI was deeply unpopular in Kikuyu areas. During this time, Babu Ayindo prophetically penned this tweet that escaped attention: “@RailaOdinga, I am prepared to believe that Sen. Irungu Kang’ata deliberately misaddressed that letter. Ja’kom, that letter is yours. Please read what the letter is saying and, more importantly, what the letter is saying without saying.”

Many observers will have noticed the lyrical sob stories that were circulating on social media following the initial announcement of the results, treating Mr. Odinga’s apparent loss like some kind of Greek tragedy. Those familiar with the strong African traditions surrounding death will be uncomfortable with the reference to a living person in language and tone more appropriate for mourning at a wake. It is an unexpected manifestation of ethnic chauvinism, because the personal grief stems from the belief that there was some kind of “queue” for leadership and the “white” Luo candidate was the next in line, having been ‘anointed’ by the sitting president. The usurping of this coronation by a ‘black’ candidate with no known lineage is anathema to all feudalists, including the oppressed vassals.

Such hubris was largely facilitated by Kenyan intellectuals in media, education and cultural spaces, who failed to do the work of unpacking political relationships beyond the usual narrative of tribal quirks. Yet underlying these tribal mathematics was the matrix with which the colonialists ascribed certain vocations to certain ethnic groups to protect colonial interests. For instance, because the colonial interests and African resistance in central Kenya centered on land, the British concocted an elaborate scheme called the Swynnerton plan, where the route to social mobility was joining government to help suppress the resistance, and after independence, getting access to government contracts through feudal networks.

This difference would also explain why the British and Americans would look at Jaramogi as a “communist” when Jaromogi’s flirting with the communist block was more about strategic political muscle against the US-supported Jomo Kenyatta, rather than a reflection of Jaramogi’s economic thinking. Jaramogi’s entrance into politics was on the back of the colonial restrictions on African trading and financial credit in Kisumu. He was therefore more of an indigenous capitalist than a communist. With his lack of direct experience with the land conflicts and colonial violence in central Kenya, it is also understandable that Jaramogi was adamant about the release of Jomo Kenyatta as a condition for independence discussions, while other Kikuyu politicians were more willing to negotiate with the British on their own while Jomo was in jail. After independence, it was Jaramogi who joined forces with Bildad Kaggia in advocating for fundamental land reforms that would give land to Mau Mau veterans, while the Kikuyu politicians – led by Jomo Kenyatta himself – enriched themselves in their newfound status as the new black settlers.

However, this collaboration failed to address the economic logic of the colonial Kenyan state, and the way it was intertwined with ethnic stereotypes. As such, the stereotypes of Kikuyu strength as that of business while Luo strength as that of academics, and similar prejudices about other Kenyan ethnic groups, continued to dominate Kenyan political life. In Kikuyu land, the Kenyatta family would stoke ethnic bigotry to claim unique rights of Kikuyus, and would use ritual, such as the cutting of Field Marshal Muthoni’s hair by Uhuru’s mother, Mrs. Ngina Kenyatta, as a spiritual tool to enforce Kikuyu compliance.

Other ethnic groups outside the two main protagonists are relegated to the stereotypes of witchcraft, docility, cultural stagnation and even terrorism, and rarely do Kenyans interrogate what these stereotypes mean politically. Often, the effect is reduced to that of numbers, but nobody questions why prominent national politicians like Kivutha Kibwana and Ekuru Aukot are often ridiculed for aspiring for the presidency. In many areas in Kenya, people cannot aspire for any office because they are denied identity cards in the name of not belonging one of the 45 or 46 tribes.

Watershed Moment

This election has therefore been a watershed moment, where the less obvious and more psychological implications of coloniality have been exposed, now that the legal and administrative hurdles associated with elections are decreasing in importance. This psychological dimension of coloniality was hidden from Kenyan politics through the use of ethnicity as a zero-sum narrative to explain Kenyan political life. The Kenyan intellectual class, especially in the media and the education system, covered up this decadence by rebranding tribal parochialism as the irredeemable nature of Africans, and by making hollow calls for Enlightenment style human rights. They therefore had no conceptual framework with which to understand the dynamic nature of Kenya’s politics and the importance of class and economics, especially since the promulgation of the 2010 constitution.

Hubris got us here. Not only the hubris of our nobles who felt entitled to choose leaders for us from amongst themselves, but also from the scholars who have excelled in law, history and political science, but choose to serve the nobles rather than apply the knowledge to our human conditions in situ. When our elite acquire journalistic and academic expertise which does not address what ails us, then we are stuck with “competents” as opposed to educated people. From now on, let us normalize ignoring any purported “expert” who cannot unpack this watershed moment for us. That failure should suggest to us that the “expert” is either part of the mess, or not courageous enough to help our nation move on from it. That’s the definition of deadwood, which can only slow down the growth of our society.

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This article was first published on Wandia Njoya’s blog.

The glimmer of hope that came from the joint announcement by United States and European Union Special Envoys that negotiations to end the war on Tigray would begin, the siege lifted and humanitarian access fully granted, is now dimmed by the recent relapse to war. The many people who were sceptical about the start of the talks are not surprised by this resumption of the war that will consume many more young lives. Reports of killings of children in Mekelle through indiscriminate aerial bombardment and drone strikes add more setbacks to the commencement of negotiations.

A further hindrance has been the insistence that the African Union (AU) mediator, former Nigerian president Olusegun Obasanjo, remain involved in the process despite the reservations of a key party to the negotiations. In order to prevent further bloodshed, the honourable thing for former president Obasanjo to do is to resign.

The AU needs to avoid political wrangling with Tigray about keeping its mediator and instead focus on fast-tracking the appointment of a new envoy who has the approval of all parties, and begin negotiations on substantive politico-military agenda items.

As the war on Tigray approaches its second year, Ethiopian, Amhara, and Eritrean forces still control some areas of the region. Legitimately expected and essential public services such as ground and air transportation, electricity, telecommunications, banking services, and fuel deliveries, remain blocked. Humanitarian assistance has been reduced to a trickle despite the readiness of the UN and other agencies to supply aid. It would seem that the aim is to exterminate Tigrayans by starving them to death.

The continued lack of progress in implementing confidence and trust-building measures (primarily, an end to aid blockages, the lifting of the siege, the resumption of all public services and the withdrawal of forces from Tigrayan territory) has resulted in a dangerous waiting game. The statements by the envoys have become meaningless.

Without the lifting of the siege, it is highly likely that fighting will resume at the slightest provocation. This waiting game could constitute a “slow death” for Tigrayans – an abominable result that should be rejected. The relapse into military confrontation is disastrous for the long-suffering people of Tigray who have already gone through unimaginable suffering, for the people of Ethiopia and for any hope of peace in the Horn of Africa. Everyone, including the AU mediator, should be working tirelessly to avoid such an outcome.

It is important to note here that empires do not collapse overnight. What is at stake is nothing but the survival of the Ethiopian state, with dreadful implications for its 110 million population and for the Horn of Africa region. The AU Commission leaders knew about the war, the atrocities and Eritrea’s full involvement, but they remained silent and later provided tacit legal cover-up. The failure of African leaders to intervene rapidly and de-link an individual mediator from the process will render AU irrelevant in the resolution of the war on Tigray.

Why should Obasanjo resign? 

Mediation is only as effective as the political will and trust the parties invest in ending the conflict. The mediator is the guarantor of the parties’ trust in the process. According to the UN Guidance for Effective Mediation, the “acceptability of the mediator and the mediating entity” are critical factors in determining the success of the process. Mr Obasanjo neither inspires trust nor satisfies the other criteria of a mediator, as outlined by the UN.

The ‘non-rejectability’ test

The UN states that mediation is a voluntary process that requires the consent of the parties to the conflict to be effective. Without consent, it is unlikely that parties will negotiate in good faith or be committed to the mediation process. A mediator cannot be imposed on the parties to negotiation; he or she must get their unreserved consent before the appointment.  In other words, the choice of a mediator needs to pass the “non-rejectability” test.

Mr Obasanjo fails to pass this test, as Tigray has expressly rejected his role as mediator.

Impartiality, in appearance and in fact 

The UN further states that “impartiality is a cornerstone of mediation – if a mediation process is perceived to be biased, this can undermine meaningful progress to resolve the conflict”. 

Impartiality, both in fact and in appearance, is an essential requirement for a mediator. The principle of omni-partiality requires that the mediator is always on both sides of the negotiation to guide the parties to points of agreement and narrow areas of divergence. Thus, an accusation against, or even a reservation regarding the mediator’s impartiality by parties to the negotiation is a sufficient condition for the mediator to step aside. Whether the partiality is real or perceived does not matter, as reservations of this kind damage confidence in the mediator and undermine trust in the mediation process.

Several factors place the impartiality of Obasanjo in serious question. He was appointed by the leadership of the AU Commission, which has been accused of taking a partisan position on the war on Tigray. Furthermore, he served as head of the AU Election Observation Mission during the August 2020 elections in Ethiopia, which were denounced and boycotted by the Tigray government and other Ethiopian forces. Despite this, Obasanjo’s team judged the election to be free and fair, thereby endorsing the rejected polls.

“Impartiality is a cornerstone of mediation – if a mediation process is perceived to be biased, this can undermine meaningful progress to resolve the conflict”.

Moreover, once appointed as mediator, Mr Obasanjo failed to ensure impartiality, both in appearance and in fact. He has conducted official and publicly televised visits with the Prime Minister of Ethiopia, Abiy Ahmed, to areas and regarding issues that have nothing to do with the mediation. The aim of these visits has been to showcase the country’s “progress” and convey an aura of “stability” and “development” at a time when Ethiopia is facing its highest number of deaths and displacements yet due to conflict and starvation, with an economy that is in free fall.

In addition, reports indicate that Obasanjo enjoys unique access to the highest levels of the Ethiopian government – a privilege not granted to other diplomats. Obasanjo should have avoided the social and publicity events that show him to be overly close to one of the parties to the mediation. These visits have been perceived as illustrations of the “proximity of the High Representative to the Prime Minister of Ethiopia”.

Moreover, his efforts thus far have yielded no concrete outcomes. On the contrary, his pronouncements and actions have created even more confusion. In a BBC interview, Obasanjo backed a stance that makes lifting the siege and the humanitarian blockade a precondition for the start of negotiations – a position that the Ethiopian government believes is its only leverage over Tigray. Linking the provision of humanitarian aid to millions of civilians with peace negotiations is contrary to international human rights and humanitarian laws.

While the cardinal rule of a mediator is to objectively understand both the context and specificity of a conflict, Obasanjo is already armed with prescriptive templates that narrowly profile the resolutions of the conflicts in Ethiopia and, in particular, Tigray, Oromia, Gambella, Benishangul and Gumuz. Perhaps more concerning is Obasanjo’s recent brief to the AU’s Peace and Security Council. The report characterizes the armed conflicts in Ethiopia as “internal ethnic tensions in western Ethiopia; on and off tensions between Eritrea and the Tigray People’s Liberation Front (TPLF); recent deteriorating security situation between Ethiopia and Sudan over alleged skirmishes at the common border; reports of the arrest of suspects allegedly plotting terror attacks in Addis Ababa; and the attacks by al Shabaab in the Ferfer district of Ethiopia near the border with Somalia.”

While supporting the negotiations with Tigray, Obasanjo proposes “re-establishing strained intercommunal relations” to address armed conflicts in parts of the Oromia and Benishangul-Gumuz regions. Does this mean the armed conflicts outside Tigray could be dealt with within the current dialogue, and not through negotiations?

Obasanjo’s report dramatically underplays the war crimes, crimes against humanity, ethnic cleansing and genocide caused by the nationwide internal and war on Tigray, and grossly underreports their true human and economic costs. The internal wars within Ethiopia, the intervention by Eritrean armed forces, and the armed conflict with Sudan in the border areas and Al Shabaab in the Somali region have claimed hundreds of thousands of lives and displaced more than six million people. More than half a million lives have been lost in the war on Tigray.  Obasanjo has shown no genuine interest in the atrocities committed by Eritrea, accountability, and reparations for the victims of the war. His report fails to express empathy and demonstrate solidarity with victims of the war.

Obasanjo is already armed with prescriptive templates that narrowly profile the resolutions of the conflicts in Ethiopia.

After expressing doubts about the impartiality and integrity of Obasanjo and the lack of consultation regarding his appointment by the AU in the first letter written to the UN Security Council on 23 August 2021, the Tigrayan government announced that it would “only accept impartial and neutral mediators and not those that have displayed partiality towards the Government of Ethiopia. Those who endorsed the war on Tigray publicly or tacitly supported and attempted to bestow credibility to the sham elections conducted in June 2021 will not be accepted by the Government of Tigray”.

It further accused the AU of failing “to rise to the occasion when the war broke. They abandoned their core mandate of preventing the war when the Government of Tigray repeatedly appealed for their preventive diplomacy before and in the early stages of the war. The AU was proven incapable of pronouncing itself when combined Eritrean, Ethiopian, and Amhara forces aided by non-African forces invaded Tigray and committed atrocious crimes. The Government of Tigray is deeply disappointed by Mr Moussa Faki, AU Commission Chairperson, who even went further to endorse the genocide and war on Tigray officially. The Government of Tigray strongly believes that the AU cannot provide any solution to the war in Tigray, which it has officially endorsed”. It added that “the Government of Tigray reserves its right to reject any imposition of mediation without prior substantive consultations”.

In a recent open letter, the President of Tigray accused the AU of betraying the foundational principles of the Union. “The silence of the African Union over the war and the atrocities perpetrated by the forces ranged against us was a betrayal of the Foundational Principles of the Union. We have consistently condemned the failure of the African Union Chairperson and his High Representative to take a position consistent with their solemn obligations under the Constitutive Act of the Union, the Protocol establishing the Peace and Security Council, and a host of other commitments entered into. In the considered view of the People and Government of Tigray, the leadership of the African Union Commission has yet to redeem its failures and restore our trust.” This latest letter from the president was the final nail in the coffin of Obasanjo’s mediation role. Tigray has decided that Obasanjo is not impartial enough to mediate the war.

Possibly due to pressure from the regimes in Addis Ababa and Asmara, the Obasanjo brief recommends inviting Eritrea into the mediation effort, requesting the AU Commission “to extend a formal invitation to the Republic of Eritrea to join ongoing AU-led efforts aimed at finding lasting diplomatic solutions to the conflict between the Federal Government of Ethiopia and the TPLF”. The brief notes that “Eritrea has sided with Ethiopia in the conflict with TPLF,” significantly underreporting the role that Eritrea played and is still playing as an omnipotent foreign force in the war on Tigray. It then states that “realities continue to prove that brokering genuine peace between Addis Ababa and Mekelle requires the involvement of Asmara.”

The proposal reveals the inconsistencies of the AU’s position on the war on Tigray. Despite the presence of incontrovertible evidence since the beginning of the war, the AU has long maintained a policy of silence and turned a blind eye to the major role of the Eritrean armed forces in the war on Tigray and the ensuing atrocities. This policy of ignoring Eritrea’s destructive role in Ethiopia’s current conflicts is to be contrasted with the EU and US positions, which publicly confirmed the participation of Eritrean armed forces in the war on Tigray and called for their immediate withdrawal and for perpetrators to be held accountable. The US government went further to issue an executive order that sanctioned the Eritrean regime for the atrocities in Tigray.

Without mentioning Eritrea’s role in the war on Tigray, the reasons forwarded to justify its involvement in the mediation speak volumes about the AU’s inability to master the intricacies of Ethiopian, Tigrayan, and Eritrean relations, or to decipher where Obasanjo’s actual bias lies. What is more, if the AU were to endorse such a recommendation, it would fly in the face of everything the AU stands for.

The AU was proven incapable of pronouncing itself when combined Eritrean, Ethiopian, and Amhara forces aided by non-African forces invaded Tigray and committed atrocious crimes.

Furthermore, with the proposal to invite Eritrea into the negotiations, the AU mediation is entering a legal minefield. As with previous statements by the AU Commission, the Obasanjo report mentions nothing about the circumstances and legality of the Eritrean armed forces’ entry into the war, nor of the crucial role they played. While the Ethiopian government had not made an official statement inviting Eritrea’s intervention, Eritrea, along with the Amhara and Ethiopian forces, played a crucial part in the execution of the war on Tigray.

For many months, and despite a great deal of evidence to the contrary, the administration of Prime Minister Abiy Ahmed denied the participation of Eritrean soldiers in the conflict. Eritrea also vehemently denied its involvement. This suddenly changed on 23 March 2021, when the Prime Minister cautiously admitted before parliament that Eritrean forces had been in Tigray since the beginning of the conflict. Eritrea then followed suit. Both parties, by and large, hinted that Eritrea had sent its forces to Tigray in self-defence, without providing further details. These admissions did not clarify whether Ethiopia had invited the Eritrean forces into Tigray. What is clear, nonetheless, is that Ethiopia has never openly criticized the Eritrean intervention or the atrocities Eritrean forces have been accused of committing in Tigray, much less demanded that these forces leave Tigray. In addition, Eritrea still occupies certain areas of Tigray and is heavily deployed alongside the federal and Amhara forces in west Tigray.

In light of these developments, it is apparent that the Eritrean forces are working closely with the federal government forces. This has also been established by independent investigations, including by Human Rights Watch and Amnesty International, which showed that Ethiopian and Eritrean forces regularly conduct joint operations. Thus, the war on Tigray is not an international armed conflict where internationally recognized states use force against each other.

Eritrea’s involvement, as such, does not change the situation into that of international armed conflict, as it is helping the Ethiopian government and its allies.

Since Tigray is not an independent country, it has no business negotiating with any entity except the federal government of Ethiopia. The negotiation is an internal Ethiopian issue. Although this fact is easily overlooked, the negotiations will determine Tigray’s relations with Ethiopia, not (or only indirectly) with Eritrea. There is no legal basis to involve Eritrea in the mediation effort without the consent of the negotiating parties.

In addition to the legal, practical, and ethical considerations, on what political basis should Eritrea take part in mediations to resolve the causes of an internal war in Ethiopia?

The Eritrean, Ethiopian, and Amhara governments grew very close during the months before the war on Tigray. They have a shared antagonism towards Tigray and its government. The Ethiopian regime allowed Eritrean forces to kill, displace, destroy, and commit atrocities in Tigray. Eritrea has few allies – the Ethiopian and Amhara governments are the only two in the region – and it will sacrifice its own people to avoid losing these two newly made friends. The regime in Asmara thrives only in a region that is besieged with instability, not a peaceful one, let alone a successful one. The very mediation effort between Tigray and Ethiopia threatens the Eritrean regime. A successful peaceful resolution of the war between Tigray and Ethiopia has the potential to unravel the entirety of Eritrea’s regional influence after the end of the triumvirate Abiy–Isaias–Farmaajo security pact. Thus, Eritrea is the most significant threat to the mediation process.

The negotiations will, among others, look at Ethiopia’s relations with neighbouring countries bordering Tigray, including Eritrea and Sudan. The post-war future of Ethiopia will determine how Eritrea will interact with Tigray. That’s why Obasanjo’s suggestion to invite Eritrea to the negotiation table never boded well for Tigray. While Ethiopia may welcome this, for Tigray it is likely to be a non-starter. There is no reason why Eritrea should have the unique privilege of being invited to a negotiation process that will define Tigray’s relations with Ethiopia.

With the proposal to invite Eritrea into the negotiations, the AU mediation is entering a legal minefield.

The same Obasanjo brief mentions that “unresolved disputes between Ethiopia and Sudan over the Al-Fashaqa area remain a source of tension . . . with Ethiopia accusing its neighbour of harbouring elements of the TPLF in its territories”. Thus, in applying the same logic, one is forced to ask why Obasanjo did not propose to invite Sudan – which, according to the report, supports Tigray – to the mediation table. Why extend an invitation to Eritrea but not Sudan? With Eritrea, Sudan, and more countries at the table, the mediation will only become more complex and unlikely to bear any peace.

In mediation parlance, impartiality is often ensured by objectively answering the big question: has the mediator passed the non-rejectability test, which requires that parties to the conflict must unreservedly consent to the mediator’s role?  Is the mediator impartial? In principle and practice, a mediator’s credibility is beyond redemption once he/she is perceived as partisan by any of the parties to the conflict. This principle is not only informed by but also consistent with African mediation experience. Obasanjo himself has become an issue in this process, and he needs to recuse himself for the sake of peace in Ethiopia and the Horn of Africa. When the mediator’s impartiality comes into question, or even when a mediation effort lacks progress, or any of the conflicting parties refuse to cooperate, the long-standing practice is for the mediator to resign. The experiences of Said Dijinnit in the Burundi mediation, and Kofi Annan and Lakhdar Brahimi in the Syria process are instructive. Never before has a mediator insisted on staying put when one of the parties has opposed their participation. What explains Obasanjo’s unprecedented inclination to remain as a mediator contrary to established principles and practices?

What is to be done? 

As a mediator, Obasanjo’s impartiality has been questioned by one of the parties, and it is only natural that he should step aside. His resignation would help avoid unnecessary political wrangling, prevent forum shopping, fast-track the selection of new mediators, and commence the negotiation on substantive agenda items.

The AU has no legal or political basis for ignoring Tigray’s position and has no right – legal or political – for opposing the selection of a mutually agreeable mediator. The AU must prevent the current rhetoric from becoming a political handicap, rendering the body irrelevant to the resolution of the war on Tigray.

A new mediator needs to be appointed quickly with the consultation and consent of all parties.

Mediating such a war requires neutrality, impartiality, undivided attention, and freedom of action unencumbered by institutional and individual conflicts of interest. Thus, the full-time availability of the mediators is a prerequisite for the successful engagement of the parties. An additional prerequisite for a successful mediation is a deep understanding of the context of the war on Tigray, the crises in Ethiopia, and the situation in the Horn of Africa, a quality some of the potential mediators possess.

Negotiations also require enforcement mechanisms and punitive measures against spoilers and violators of agreements. These necessitate strong government backing by states with influence with both parties as guarantors of such a process.

So far, none of the parties has rejected Kenyan President Uhuru Kenyatta’s offer to lead the mediation. As an outgoing president he remains a viable option if the incoming government of Kenya, the AU, IGAD, and the UN were to support him. Given that he has been officially engaging the parties with the support of international actors, continuing what he has started would allow the smooth and speedy resumption of mediation.

A successful peaceful resolution of the war between Tigray and Ethiopia has the potential to unravel the entirety of Eritrea’s regional influence.

Given that state backing is crucial to any mediator’s success, political, diplomatic, and financial support for the office of the mediator, as well as the AU, IGAD, UN, EU, US and China is necessary. If for any reason President Uhuru is unable to take up the role, there are several other potential mediators that could be acceptable to and possess leverage with both parties and the international community. As is often the case, the US and EU may not explicitly show their preference on this and other matters related to the mediation to avoid being accused of undermining AU and African mediation efforts.

At the same time, to avoid competing and fragmented mediations, it is crucial to ensure that there is only a single mediation process. A consultative approach helps to avoid parallel initiatives and build confidence.

After a tallying process which ran from 9 August to 15 August 2022, Independent and Electoral Boundaries Commission (IEBC) Chairperson Wafula Chebukati declared that Hon. William Ruto had met the constitutional threshold for election as president and is therefore the President-elect. Moments before this announcement, four IEBC Commissioners—Juliana Cherera, Francis Wanderi, Irene Masit and Justus Nyangaya—issued a statement to the press disavowing the results and alleging that, due to the ‘opaque nature’ of the way the final ‘phase’ had been handled, they could not ‘take ownership’ of the results. A day later, the four Commissioners provided their reasons for disavowing the Chairperson’s declaration, key among them being that the Chairperson excluded them from the decision to declare Hon. Ruto as president-elect. Hon. Ruto’s chief competitor, Hon. Raila Odinga, has also rejected the results on similar grounds.

We have been here before of course. In 2017, there was a fallout between Chebukati and three of his Commissioners on the basis that the Commissioners did not agree with Chebukati’s leadership. As we have argued previously, the IEBC is in need of structural reform.

The events of 15th and 16th August, 2022 have stirred debate about the roles envisaged for the IEBC Chairperson and its Commissioners by the Constitution and Kenya’s election laws. Does the Chairperson’s declaration square with the law? Was he required to have a majority of the Commissioners in agreement with his declaration? Is the declaration of a winner a mere ceremonial function of the Chairperson?

The constitutional and statutory framework

Before answering these questions, it is important to look at the relevant Constitutional and statutory framework.

The IEBC is established by Article 88 of the Constitution which in sub-article (5) states that “[t]he Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation”. The Independent Electoral and Boundaries Commission Act (IEBC Act) was then enacted in 2011 to operationalise the entity and is the “national legislation” envisaged in the Constitution.

In relation to presidential elections, the Constitution, in Article 138(3)(c), provides that “after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result”.

Article 138(10) of the Constitution then provides that “[w]ithin seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall –

• declare the result of the election; and 
• deliver a written notification of the result to the Chief Justice and the incumbent President.

Section 39 of the Elections Act provides, in part:

“(1C) For purposes of a presidential election, the Commission shall – 

• electronically transmit and physically deliver the tabulated results of an election for the President from a polling station to the constituency tallying centre and the national tallying centre; 

• tally and verify the results received at the constituency tallying centre and the national tallying centre; and
• publish the polling result forms on an online public portal maintained by the Commission.

(1E) Where there is a discrepancy between the electronically transmitted and the physically delivered results, the Commission shall verify the results and the result which is an accurate record of the results tallied, verified, and declared at the respective polling station shall prevail.

(1H) The chairperson of the Commission shall declare the results of the election of the President in accordance with Article 138(10) of the Constitution.”

Regulation 83(2) of the Election (General) Regulations, 2012 provides that “[t]he Chairperson of the Commission shall tally and verify the results received at the national tallying centre.” Further, Regulation 87(3) reads, in part:

“Upon receipt of Form 34A from the constituency returning officers under sub-regulation (1), the Chairperson of the Commission shall – 

• verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre; 
• tally and complete Form 34C;
• announce the results for each of the presidential candidates for each County;
• sign and date the forms and make available a copy to any candidate or the national chief agent present;
• publicly declare the results of the election of the president in accordance with Articles 138(4) and 138(10) of the Constitution;
• issue a certificate to the person elected president in Form 34D set out in the Schedule; and
• deliver a written notification of the results to the Chief Justice and the incumbent president within seven days of the declaration…”

Unpacking the legal position 

So, what does this all mean?

Immediately polls close, the Elections Act and its subsidiary legislation require presiding officers at each polling station to openly count ballots and declare the result. The result from each polling station within a constituency is then aggregated at constituency level and a result of this aggregation is declared by respective constituency returning officers. This process is then replicated at the national tallying centre where the Chairperson of the IEBC serves as the returning officer for the presidential elections declares the winner.

Both the IEBC Commissioners and Hon. Odinga have, in their public statements on Chebukati’s declaration of Hon. Ruto, sought to rely on a Court of Appeal decision, IEBC v Maina Kiai & 5 others [2017], suggesting in effect that the role of national returning officer does not exist and that the Chairperson is not vested with the power to declare a result without consensus or a majority decision of the Commissioners. However, this is not an accurate account of the issue before the court and its eventual holding. The issue before the court in Maina Kiai related, principally, to the ability of the Chairperson to alter results during the verification process. In question, were certain provisions of the Elections Act and the Elections (General) Regulations which provided that results declared at polling station level were ‘provisional’ and ‘subject to confirmation’, vesting in the Chairperson the ability to alter results at the national tallying centre. The Court of Appeal confirmed the constitutional and statutory position that the result declared at the polling station by presiding officers is final and cannot be altered by anyone other than an election court.

The Court was abundantly clear that Article 138(3)(c) deals with counting, tallying, verification, and declaration by the presiding officer at the polling station level and returning officers at each subsequent level, and not just the Chairperson at the Commission level. In other words, in discharging its mandate under Article 138(3)(c), the IEBC, which is a body corporate, acts through its representatives who are the presiding officers and returning officers. In undertaking the verification exercise at subsequent levels after the polling station, the respective officers are simply required to confirm whether the tally at each level conforms to the declaration which was made by the presiding officer at the polling station and to declare this result. Consequently, the constituency returning officer and the national returning officer (who is the IEBC Chairperson) cannot alter the results in any way when making these declarations. This is the mischief that the Maina Kiai case addressed, and in doing so, it invalidated certain sections of the Elections Act and the Elections (General) Regulations which suggested that results at the polling station level were provisional and subject to alteration or confirmation by the Chairperson. By doing this, the Court of Appeal aligned these laws with the Constitutional position.

Notably, Regulation 83(2) and 87(3) of the Election (General) Regulations which we quoted above, and which empower the Chairperson to tally, verify, and declare the results received at the national tallying centre, were not the subject of the Maina Kiai decision, and as such were not invalidated.  However, the Court of Appeal clarified that in tallying and verifying results, the Chairperson is bound by the results declared at each polling station which are final. Indeed, in the Maina Kiai case, the Court of Appeal recognised the special role of the Chairman and stated:

“It cannot be denied that the Chairperson of the appellant has a significant constitutional role under Sub-Article (10) of Article 138 as the authority with the ultimate mandate of making the declaration that brings to finality the presidential election process. Of course, before he makes that declaration his role is to accurately tally all the results exactly as received from the 290 returning officers country-wide, without adding, subtracting, multiplying, or dividing any number contained in the two forms from the constituency tallying centre. If any verification or confirmation is anticipated, it has to relate only to confirmation and verification that the candidate to be declared elected president has met the threshold set under Article 138(4), by receiving more than half of all the votes cast in that election; and at least twenty- five per cent of the votes cast in each of more than half of the counties.”

So, if anything, the Maina Kiai decision reinforced the role of the Chairperson as the national returning officer of the presidential election, contrary to the statement issued by the four Commissioners on 16th August which alleged that such a role does not exist.  Further, the Supreme Court of Kenya in the Joho v Shahbal case made it clear that a declaration takes place at each stage of tallying, implying that the verification and declaration process is not the preserve of the Commissioners. It is done by the respective presiding and returning officers at each stage. The High Court, at an earlier stage of the same case, had confirmed that declarations are made through formal instruments, which in the electoral context, are the certificates issued by the respective returning officers. To render even more clarity, in its majority decision in Petition 1 of 2017 Raila Odinga v IEBC & 2 others [2017], the Supreme Court stated that ‘[t]he duty to verify in Article 138 is squarely placed upon the IEBC (the 1st respondent herein). This duty runs all the way from the polling station to the constituency level and finally, to the National Tallying Centre. There is no disjuncture in the performance of the duty to verify. It is exercised by the various agents or officers of the 1st respondent, that is to say, the presiding officer at a polling station, the returning officer at the constituency level and the Chair at the National Tallying Centre’.

With both the Constitutional and statutory framework and this recent jurisprudence in mind, it is apparent that when it comes to the declaration of results, the Chairperson is not merely performing a ceremonial role on behalf of the Commission but has a singular responsibility to discharge a constitutional duty to declare a president-elect after verifying the results. Once the presiding officers and constituency returning officers discharge their mandate, they hand the baton to the Chairperson for him to also do so. He therefore does not discharge his mandate in isolation or in an arbitrary manner; his role is hinged upon other IEBC officers at various levels dispensing with their mandate. Like the rest, he may not deviate from the declaration made at the polling station. In that way, he acts as a representative or an agent of the entire IEBC in discharging his mandate. This position is aligned with the Elections (General) Regulations and the Supreme Court’s decision in Raila v IEBC which provide that the Chairperson, as the IEBC’s agent, can verify the results and make a declaration. For these reasons, Chebukati’s declaration, we argue, is in accordance with the law.

In public debates following Chebukati’s declaration of a president-elect, there has been an argument in some quarters that the Second Schedule to the IEBC Act and in particular paragraph 7 which reads “[u]nless a unanimous decision is reached, a decision on any matter before the Commission shall be by a majority of the members present and voting”, suggests that the dissension of the majority of the Commissioners on grounds of ‘opaqueness’ meant that Chebukati did not have the authority to make the declaration. Azimio La Umoja Coalition Party presidential candidate Hon. Odinga forms part of the individuals advancing this argument when rejecting the legality of Chebukati’s declaration of Hon. Ruto as president-elect. The Second Schedule is made pursuant to Section 8 of the IEBC Act which provides that “[t]he conduct and regulation of the business and affairs of the Commission shall be provided for in the Second Schedule but subject thereto, the Commission may regulate its own procedure.” The Second Schedule is akin to the provisions of the Articles of Association of a company which deals with how board meetings are conducted.  It deals with matters such as how meetings are called, how quorum is formed and other such administrative matters. Note that paragraph 7 is specifically limited to matters ‘before the Commission’. As set out in the preceding paragraph, the declaration of a president-elect is a matter for the Chairperson and not a matter ‘before the Commission’.

In any case, those arguing the contrary have two further obstacles to overcome. Firstly, how do they reconcile their position with the clear constitutional injunctions imposed on the Chairperson by Article 138(10) requiring the Chairperson to declare the results of the Presidential election within 7 days after the Presidential election. What did they expect Chebukati to do? Continue negotiating with the dissenting Commissioners and allow the 7 days to expire? If so, does this mean Chebukati should place the views of his Commissioners above the Constitutional requirement in Article 138(10) even though, at each stage, representative officers of the IEBC verified, declared, and made the results public?  The reason for Article 138(10), in our view, is obvious. In matters relating to the transfer of Presidential power, certainty of process and timing is critical. One cannot leave matters in abeyance and risk a constitutional crisis with an incumbent holding on or causing the delay in the assumption of office by his successor. This would be a recipe for a constitutional crisis with a myriad of implications for Kenyans, especially in relation to their safety and security.

Ultimately, Chebukati’s decision is not final: there is the Supreme Court to which those disgruntled by his declaration can appeal. Although not final, finality in the process of tallying and subsequent declaration is critical. To take such a dramatic step of disavowing the results at a moment when the country was on edge, we would have thought that the four Commissioners would present some compelling evidence pointing to miscalculation on the part of Chebukati in the tabulation of the statutory forms 34A, 34B and 34C. Kenyans have not yet been presented with any such compelling evidence.

Turning to the absence of compelling evidence, one would expect a detailed explanation from the four Commissioners. In their statement following their initial announcement, they disclosed four reasons for their dissent. The first was in relation to the aggregation of the tally surpassing 100% by a margin of 0.01%. A simple calculation reveals that the error may be attributable to the Chairperson rounding the figures upward for purposes of the declaration.

Their second reason was that the Chairperson, in his declaration, did not indicate the total number of registered voters, the total number of votes cast or the number of rejected votes. The declaration of results form available on the IEBC’s website indicates that this is not true as the declaration form does contain all this information.

In their third reason, the Commissioners relied on the Maina Kiai decision to allege that the “Commission has to process the results before they are declared and announced by the Chairperson”. As we have set out above, the Court of Appeal in Maina Kiai indicated that the IEBC, as a body corporate, acts through its officers, specifically the presiding and returning officers who fulfil the IEBC’s obligation under Article 138(3)(c) of the Constitution on the institution’s behalf. Given the results were, at each stage, tallied, verified, and declared by presiding and returning officers including the Chairperson, it is not immediately clear what further ‘processing’ the Commissioners wanted to subject the results to, especially when the Court of Appeal explicitly held that once declared at constituency level, a result is final. The law certainly does not disclose a role for these Commissioners to ‘process’ these results any further. It only envisions a role for the Chair to verify the results and make a declaration. The reliance on Maina Kiai is also misleading in the sense that it implies the Chairperson acted in isolation and in an arbitrary manner, yet he was clearly bound to the results declared by other officers at the polling station level which were publicly available.

Their final reason was that the Chairperson made his declaration before several constituencies had their results declared. The Elections Act provides that the Chairperson may only do so if “in the opinion of the Commission the results that have not been received will not make a difference with regards to the winner”. However, the challenge with this reason is that the Chairperson did not indicate that his declaration was made on the basis that the results were not complete and that the remainder would not make a difference. Perhaps at the Supreme Court, this ground will be elaborated on further.

In light of the above, on the limited point of whether Chebukati had the power to make the declaration that he did on 15th August, 2022, we are of the view that he did and that in doing so he has fulfilled the obligations required of his office in accordance with the principles of the Constitution and the relevant election laws.