KENYA S 2017 ELECTIONS: POPULISM AND INSTITUTIONAL CAPTURE A THREAT TO ELECTION STABILITY

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Lynette Goodwin
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1 ISSUE NO. 9, JUNE 2017 KENYA S 2017 ELECTIONS: POPULISM AND INSTITUTIONAL CAPTURE A THREAT TO ELECTION STABILITY In the run up to August 8, 2017, General Elections, Kenya exemplifies the global surge of populism, which has thrust democratic institutions into the center-stage of the elite power play. The country is caught up in a worldwide clash between populists and non-populists for the control of democratic institutions. This institutional capture has raised stakes for the re-election of incumbent regimes and increased the risk of instability. The ensuing uncertainty carries critical lessons for regimes to prioritize the consolidation of independent institutions. On July 10, 2017, President Uhuru Kenyatta questioned the independence of Kenya s judiciary, asserting that the courts were increasingly getting entangled in the opposition s attempts to delay and disrupt the coming elections on August 8, The president s remarks came in the wake of a controversial High Court ruling on an opposition s application to cancel a contract awarded to the Dubai-based Al Ghurair Printing & Publishing company to print presidential ballot papers. This came on top of another ruling by the court in February 2017 that IEBC's award of the contract to the company was illegal. Jubilee stalwarts view this sequel of orders issued by the country s courts over the last four years as designed to scuttle the election, create a constitutional crisis and push for a power-sharing deal along the lines of the Grand Coalition government after the disputed 2007 presidential election. Kenyatta s deputy, William Ruto, also challenged Chief Justice David Maraga to explain why he directed the Independent Electoral and Boundaries Commission not to print the ballot papers before the court ruling, a claim Maraga denied. The road to Kenya's 2017 election exemplifies a unique case of the relationship between populism and institutional capture. In a recent study, "Populism and State Capture" published in the Journal of European Political Economy (June 2017), Nicholas Chesterley and Paolo Roberti show why institutional capture is at the core of the strategies of both populist and nonpopulist segments of the power elite. The general expectation is that once elected, politicians of both types are able to seize

2 control of institutions to ensure their reelection. In Africa as elsewhere, while populist politicians have manipulated deep-rooted grievances and promised voters with a boom in order to win elections, once they are in power the promises of boom give way to busts. Therefore, populist politicians need to capture and control institutions to avoid being voted out of power during the bust. On their part, non-populists demonstrate their capacity to make sustained and qualitative gains in development, thus progressively transforming lives, reducing poverty and resolving some of the entrenched grievances. However, in fragile democracies in Africa, failure by the non-populist ruling elites to consolidate and seize control of democratic of institutions especially the Judiciary, IEBC and security forces. This has informed their 2017 election strategy. Between 2013 and 2017, the opposition has made determined measures to either seize the towering heights of the Democratic establishment or to completely paralyze those institutions that prove total or partially impossible to capture. In the run, up to the 2017 General Elections, populism and institutional capture are playing out at three institutional levels: Expectedly, the IEBC is the foremost institution in the intra-elite battle for the control of the democratic space. Prior to the 2013 election, Raila Odinga and the populists believed that the reformed IEBC was firmly on their docket. institutions have often posed serious reelection challenges and proved extremely costly for national stability. This is true of Kenya in the run up to the 2017 presidential election. Here, populist politicians coalesced around ODM/Cord opposition failed to win the 2013 elections. Kenya s populists blamed their loss of the 2013 presidential contest on their failure to capture and seize control The chairman of the Commission, Issack Hassan (and the vast majority of the commissioners) hailed from region's or "communities" the opposition believed were its strongholds while the Executive Officer, James Oswago, was from Odinga s Nyanza home tuff. However, from the time IEBC declared Uhuru Kenyatta as the victor, the ODM elite became convinced that the electoral

3 institution was captured by the ruling Jubilee. This reality loomed even larger on March 22, 2016, when the Isaack Hassan Commission declared CORD's OKOA Kenya initiative to amend the Constitution as having collapsed by operation of the law. Also gone with the wind was Okoa Kenya s effort to regain control of the IEBC by amending Article 88 of the Constitution on the composition of IEBC commission to appears neutral and uncaptured by either the populists or the non-populists. In the corridors of Jubilee power, the IEBC s main problem is failure to assert its independence. Jubilee has interpreted NASA s July 2017 memorandum to the IEBC commissioners, which demanded that three top IEBC secretariat officials including the CEO Chiloba, Immaculate Kassait the director of voter registration and James Muhati the ICT director be excluded from the consist of five commissioners nominated by political parties based on their numerical strength in Parliament in the previous general elections. If it succeeded, this move would have enabled ODM and allied parties to have majority commissioners in the IEBC. The opposition scored heavily when a combination of anti-corruption and increasingly violent anti-iebc riots in early 2016 succeeded in forcing the Hassan Commission out of office. But this did not translate into seizing control over IEBC. Although both the new Chair of the Commission, Wafula Chebukati, and the Chief Executive, Ezra Chiloba, hail from assumed "ODM/NASA strongholds in Western Kenya, the new IEBC team forthcoming electoral process and to proceed on compulsory leave pending disciplinary proceedings against them as a move to decapitate IEBC. Second, and related to above, Jubilee has charged that the opposition is (mis)using the country s reformed judiciary to challenge, filibuster and paralyze IEBC operations and disrupt the election, which NASA has denied. Prior to the 2013 presidential poll, Judiciary was a darling of the ODM/Cord axis. Because the vast majority of the judges in the pivotal Supreme Court were either from ODM s ethnic strongholds or shared its populist/leftist ideological leanings. This proved not to be the case.

4 Writings were already on the wall that the Judiciary was not going to kowtow to the opposition s meddling with its independence. On January 13, 2012, when a three-judge bench ruled that the elections could be held within 60 days of the expiry of term of Parliament on January 15 (pointing to March 4, 2013), the then Prime Minister, Raila Odinga referred to the ruling as fake and the court as korti ya bandia (fake or kangaroo court). The then Chief Justice Willy Mutunga told Odinga to keep off the Judiciary and respect court rulings. In April 2013, the Supreme Court threw out Odinga s petition and affirmed Jubilee s victory, raising the ire of the opposition. Mr. Odinga accused Dr. Mutunga of presiding over an injustice and told him to stop complaining about bribery allegations leveled against him. Broadly, this is the old context in which the remarks by the Jubilee leadership have been interpreted as interference with judicial independence. But Jubilee pundits have argued that it is a cabal of ODM-aligned judges and court officers in the corridors of justice linked to the Odinga family who actually pose the real threat to judicial independence. Jubilee Secretary-General, Raphael Tuju, revealed that High Court Judge, George Odunga, who has made several pivotal ruling on NASA applications, is married to James Orengo s niece and a close confidant of Odinga s. Also in this circle is Judge William Ouko, who is a relative of Raila s wife, Ida Odinga. Another relative of Odinga and chief point man and strategist for the Odinga family in the corridors of justice is Frederick Odumo Nying'uro, the Personal Assistant to the Chief Justice David Maraga. He has consistently ensured that ODM cases are heard by Justice George Odunga or any other favorable judge, said a Jubilee official. Jubilee politicians have accused Odunga of conflict of interests, saying he should have recused himself beforehand. This is a clear conflict of interest case in our opinion and the judge should have stated this and withdrawn himself, he stated. In December 2016, Jubilee MPs announced plans to discuss the conduct of High Court Judge George Odunga over claims that he has been delivering rulings that are sympathetic to the opposition Cord coalition. The third set of institutions are the security forces as democracy s praetorian guards. While Odinga has tried to link security forces with an alleged attempt to rig him, Jubilee has accused him and ODM/NASA of instigating violence in parts of the country. The sudden death of internal security Minister, Gen. (Rt) Joseph Nkaissery this week has complicated the security environment. Ultimately, the future of Kenya s democracy rests on the independence of institutions. Africa Policy Institute, July 2017 Professor Peter Kagwanja is a former Government Advisor and Chief Executive of the Africa Policy Institute, a leading Pan-African think-tank. The article was previously published by Sunday Nation on July 16, 2017 under the title- Populism and institutional capture a threat to stability

5 About Series publishes scientifically valid research outputs that cannot be considered as full research or methodology articles. Its aim is to provide a forum for sharing data, useful information and perspectives on topical issues of concern to the policy and research communities. Articles published under this series cut across disciplines, and include some short articles or opinion pieces that have already been published by the experts of the Africa Policy Institute. Some are brief publications, updates to previous work, abridged versions of research agendas or concept notes or brief reports of policy forums.

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