African Arguments by Daniel Waweru
December 5, 2012
Uhuru Kenyatta and William Ruto have put past antagonism aside to form a strong electoral coalition for Kenya’s 2013 polls.
Like the platypus, the Uhuruto — the newly-unveiled political alliance featuring Uhuru Kenyatta and William Ruto (with a supporting cast of Musalia Mudavadi and Najib Balala) — is a strange beast, consisting of two such different parts that had been thought to exist only in fantasy.
Uhuru Kenyatta was, until recently, Kenya’s Minister of Finance and Deputy Prime Minister. He is also the incumbent MP for Gatundu South; the son of Kenya’s first President; and the newly-minted leader of the Gikuyu, having triumphed in the succession struggle that kicked off in anticipation of the retirement of President Mwai Kibaki, the senior Gikuyu politician.
William Ruto is MP for Eldoret North; party leader of URP; and the widely-acknowledged leader of the Kalenjin. Both men found themselves on opposing sides at the last election; violence followed; they now find themselves charged, at the international criminal court, with, among other things, crimes against humanity.
Much of the violence before and after the general election of 2007–8 occurred in Kenya’s Rift Valley province: more than 65 percent of reported deaths (744 of 1133) and the vast majority of recorded injuries (2193 of 3561) and displacements. Since much of the worst violence in the Rift Valley took the form of Kalenjin versus Gikuyu ethnic combat, the Uhuru–Ruto alliance is not the most obvious ticket for the general elections in 2013.
Still, they begin the race for the presidency with some formidable advantages. Uhuru will probably have the full backing of Kenya’s largest ethnic community — the Gikuyu — and with them, the rest of the Mount Kenya peoples. These account for up to 25 percent of Kenya’s electorate, and, with a boost in turnout expected now that one of theirs is on the ballot, their share of the electorate might well be higher. Ruto is backed by the Kalenjin, and allied Rift Valley peoples: they account for between 10 and 15 percent of the electorate. While those numbers aren’t quite enough to win the election (which requires a margin of 50 percent +1 ) it’s clear that this is a coalition which satisfies the first requirement of pre-election coalitions: it looks likely to win.
Moreover, they have a compelling story to sell. They have argued that their electoral alliance offers a chance for peace and reconciliation between Gikuyu and Kalenjin. The claim isn’t entirely implausible: it has attracted reputable supporters and endorsers, among them Bishop Cornelius Korir, who did much to reconcile communities in the aftermath of 2007–8.
The alliance can plausibly claim at least four other advantages. The first is that their candidature would, if successful, represent the generational change in leadership that Kenya very urgently needs. The second is that Kenyans’ right to elect their leaders, and, in particular, their President ought not to be usurped by foreigners. To prevent them from running for the Presidency would, they argue, amount to a surrender of the right of self-government; the more so when neither of them has been tried or convicted of the crimes with which they’re charged.
The nationalist card has some resonance, and it plays well against their main opponent, Raila Odinga, who is (i) accused of being over-eager to accede to the wishes of the West, and (ii) charged with having arranged the predicament in which Uhuru and Ruto now find themselves.
Third, they’re set to take advantage of what seems to be an èlite mini-revolt against Raila Odinga’s candidacy: the coalition of ethnic barons he brought to the brink of victory in 2007–8 has shattered; and he’s seen several less substantial figures, whom he might have expected to line up with him this time, follow them out of his party. This has not hampered his opposition’s attempt to portray him as an overbearing and needlessly abrasive boss.
Fourth, the Uhuruto seems to have more money than the opposition: for example, a recent analysis by David Throup – a long-time observer of Kenyan politics – has it that Uhuru has been able to hire political consultants from the UK, at the cost of some 16 million pounds. It is unclear whether funding on that scale is available to ODM.
For all the interest in their candidacy, and their strengths in finance, numbers and messaging, the Uhuruto faces a tough contest. Even though his odds have seriously weakened, the ODM’s Raila Odinga remains the slight favourite. Almost all the recent polling (admittedly, of varying reliability) shows him ahead of Uhuru, who is set to be his alliance’s presidential candidate. Raila’s choice of the incumbent Vice President Stephen Kalonzo Musyoka as his running mate is sound – polling suggests that ticket comes out just ahead of Uhuru and Ruto.
ODM is likely to make every effort to turn the campaign into a referendum on the fitness for office of Uhuru and Ruto. Even setting aside the trials at The Hague (which the duo face in the New Year), there’s plenty of material to make a campaign on these issues worthwhile. Ruto, for example, has been involved in a dizzying array of litigation; whereas Kenyatta has been accused of profiting from land allegedly improperly acquired by his family. Both were prominent in the previous ruling party, KANU, on whose ticket Uhuru ran for the Presidency in 2002, with Ruto closely behind, and Mudavadi as Uhuru’s running mate.
Where Uhuru and Ruto will attempt to present themselves as a new generation of leadership, ODM will counter that they are connected to the worst practices of the ancien régime, and that to elect them would be to ensure its survival. This attack has bite when it comes to the constitution: it has been a refrain of ODM’s that no one should be elected who cannot credibly promise to protect it; and Ruto campaigned against the ratification of the new constitution in 2010.
Finally, the mere fact that Uhuru and Ruto are indictees at the ICC is a powerful issue which, on balance, can be expected to play in favour of the ODM coalition: they can reasonably argue that to elect either Uhuru or Ruto to high office would be to deal a serious blow to the country’s reputation, with consequences for its international relations, and hence its solvency. (In this, they will be helped and hindered by Kofi Annan’s increasingly unsubtle attempts to influence the election.) The alliance’s expected counter — that they come in peace, and that ODM itself was at the centre of the violence — will get an airing, but it amounts to little more than a tu quoque.
But perhaps the most serious issue facing the Uhuruto is the possibility of disqualification on the grounds of integrity. A recent court case, whose movers had sought a ruling determining whether the pair were eligible under the integrity provisions, has been withdrawn. Its movers claim that the withdrawal is tactical: they intend to pursue similar cases against all the major presidential aspirants, requiring all of them to defend their personal integrity.
The emphasis on personal integrity, while understandable, is misplaced; a little-noticed provision in the constitution regarding institutional integrity is the real barrier. In the most recent ruling on the integrity provisions for candidates, a three-judge bench of the High Court distinguished personal and institutional integrity; it then appeared to find that even if no serious allegations against a candidate’s integrity could be sustained, it would nonetheless be necessary to prevent them taking up the public position if their doing so would impair the institutional integrity of the office to which they hoped to ascend.
Recent discussion regarding the eligibility of both Uhuru and Ruto has turned on the question whether they satisfy the integrity provisions of the constitution, where the integrity provisions were broadly understood as related to personal integrity. However, the legal distinction (as defined by the recent ruling of Judge Mumo Matemu) is between personal and institutional integrity, and makes them independent: even if there is insufficient evidence to arrive at a finding that the candidate lacks integrity, the courts will still bar the appointment if they determine that the candidate’s occupation of the office would weaken the integrity of the office they hope to occupy.
It shouldn’t escape notice that the judge defined institutional integrity (or rather, threats to it) very broadly: the court appears to have held that if the consequence of an individual gaining a public office were that Kenyans would be led to question the impartiality of the institution or its institutional integrity, then this questioning of itself would suffice to impair the institutional integrity of the office, and so suffice to disqualify the candidate who aroused it.
One doesn’t have to agree with the decision to see that the if the precedent is upheld, then the Uhuru-Ruto bid is in serious trouble. While they would not directly oversee the institutions which will try them, the police and security services are responsible for cooperation with foreign and domestic courts in regard of the crimes committed during the post-election violence of 2007–8, and all report to the President. Should their bids succeed, Uhuru and Ruto would then have control over bodies which would be expected to investigate allegations concerning their conduct. Given the Matemu precedent, the courts would be bound to find that the candidatures present a threat to the institutional integrity of those bodies.
It seems, then, that the Uhuruto must find a way either to keep the matter out of court, or to ensure that the precedent is distinguished or overturned. Game on.
Daniel Waweru is a Kenyan academic living in the UK. AA