Post-poll chaos that bred peace
- It is the new set of laws which ushered in devolution and created the 47 counties.
- Today, the debate on amending the Constitution has gained currency a decade later.
- Senator Yusuf Haji-led BBI task force expected to submit its final report to President Kenyatta and Mr Odinga any time.
The post-election violence of 2007/2008 will forever remain a blot on former President Mwai Kibaki’s legacy.
But, like they say in some of the diciest situations, never let a crisis go to waste.
The violence that followed the disputed December 2007 presidential election that pitted Mr Kibaki (Party of National Unity) and Mr Raila Odinga (Orange Democratic Movement) attracted international mediation efforts that eventually led to reforms proposals culminating in the 2010 Constitution.
Legal minds interviewed by the Nation agree that with one of the country’s ugliest moments also came a perfect opportunity to rally the country into supporting a new set of laws—something that had remained elusive since the repeal of Section 2A in December 1992 to restore multi-party politics.
Following the post-election violence, it became more urgent to institute reforms as world leaders made it clear to Nairobi that Kenya would not be allowed to plunge into chaos.
High political temperatures
Even before this, political temperatures had been high for at least two years after a referendum pushed by President Kibaki was defeated in 2005 in the hands of a side led by Mr Odinga and a host of fellow Cabinet ministers. The humiliating defeat forced Mr Kibaki dissolve the Cabinet, pushing the renegade ministers to the opposition.
As the 2007/2008 violence continued, the negotiations, known as the Serena Talks (after the Nairobi hotel that hosted them), under the leadership of Mr Annan, would agree on a number reform proposals dubbed National Dialogue and Reconciliation Agreement (National Accord).
Signed on February 28, 2008, to create the position of Prime Minister for Mr Odinga, the agreement had four items: Agenda Number One called for immediate action to stop violence and restore fundamental rights and liberties; Agenda Number Two was on immediate measures to address the humanitarian crisis, promote reconciliation, healing and restoration; Agenda Number Three was on how to overcome the political crisis, while Agenda Number Four looked at long term measures and solutions such as constitutional, institutional, legal and land reform.
Others under the final agenda were addressing poverty and inequity, unemployment— particularly among the youth — consolidating national cohesion, unity and transparency, accountability and addressing impunity.
Some of the structured processes to address various issues include the formation of the Independent Review Commission chaired by retired South African judge Johann Kriegler and the Truth Justice and Reconciliation Commission. The Commission of Inquiry on Post-Election Violence, chaired by Justice Philip Waki, was also formed to investigate the causes of the crisis.
Prof Karuti Kanyinga recalls that, during the negotiations, it was acknowledged that if these long-running issues weren’t addressed, the country would experience disputes and unrest every five years during and after elections.
He says there was consensus that violence and political crisis were a recurring story but remained unattended to for many years. Some of the issues that cause violence are often pushed under the carpet. The violence provided an opportunity to kick-start the process of addressing them once and for all.
“The issues cause recurrent conflict. The government that was formed immediately after the violence of 2007 embarked on these reforms. It was assumed that subsequent governments would continue paying attention to these issues if the country were to avoid violence during elections,” says Prof Kanyinga, who is based at the Universiy of Nairobi’s Institute for Development Studies.
Some of the underlying issues were addressed through the constitutional reform process.
“The 2010 Constitution specifically focused on addressing institutional reforms and providing resources for combating imbalances in development through devolution,” the don says.
For Prof Kanyinga, the future stability of Kenya is dependent on implementing the Constitution, adhering to the rule of law, and ensuring that the objects of devolution are achieved.
Last December, the late Tanzania President Benjamin Mkapa said in his book that locking out Mr William Ruto and Ms Martha Karua from the mediation team in 2008 helped secure a power-sharing agreement between President Kibaki and Mr Odinga.
“The atmosphere changed when we got Kibaki and Odinga together without Karua and Ruto present,” Mr Mkapa says in his memoir, My Life, My Purpose. A Tanzanian President Remembers.
It is the new set of laws which ushered in devolution and created the 47 counties each headed by a governor.
A number of Independent commissions are also in place courtesy of the same document even though there is increasing criticism that some of them, like the National Police Service Commission, has had its powers watered down by the executive, returning the appointment of the Inspector General of Police back to the President among other changes.
In 2017, Amani National Congress (ANC) party leader Musalia Mudavadi who was part of the Serena talks on the ODM side painted a grim picture of the situation, saying Jubilee has failed to fully implement the Constitution.
He said the country had come full circle, clawing back the gains won through the enactment of the Constitution, and backtracking on police and land reforms.
“Emasculation of independent institutions into irrelevant treadmills for Jubilee shenanigans, closed doors on accountability, and dismembered fragile ethnic relations are the order of the day. It is like reading a local version of Blaine Harden’s Dispatches from a Fragile Continent all over again. To paraphrase Blaine, the Jubilee duo is lurching between an unworkable pompous Western present and nostalgia for a collapsed dictatorial past.”
Today, the debate on amending the Constitution has gained currency a decade later with the Yusuf Haji led Building Bridges Initiative (BBI) task force expected to submit its final report to President Uhuru Kenyatta and Mr Odinga any time.
While there are question about making the laws more inclusive with suggestions that there is need to correct a winner-takes-all electoral model, there are voices opposed to this that insist that this was a ploy by the elite to create positions for themselves at the expense of the taxpayer.