CHAPTER 25 PRESIDENTIAL AND PREMIER ELECTION, SUCCESSION AND TRANSITION IN 2017 AND BEYOND: ELECTORAL JUSTICE, POPULAR SOVEREIGNTY, PROTESTS, REVOLUTIONS, AND SECESSION DEBATES AND MOVEMENTS

This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2019) “Presidential and Premier election, Succession and Transition in 2017 and Beyond: Electoral Justice, Popular Sovereignty, Protests, Revolutions, and Secession Debates and Movements,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya, Chapter 21. 25.1 Reconceptualising and problematising Kenya’s 2017 Presidential Electoral and Transition Process There are three core overarching questions in this Chapter. First, what were the core questions and issues in the 2017 presidential electoral cycle and transition in Kenya? Second, how was popular sovereignty reconceptualised, problematized and contextualized or operationalized in the quest for socio-economic and electoral justice? Third, what lessons does Kenya and the international community learn from Kenya’s secession debate and the quest for constitutional reform, implementation and enforcement after the 2017 presidential electoral, political, governance and constitutional crisis? In conceptualising and problematising Kenya’s 2017 presidential electoral and transition process, this Chapter adopts an Afro-Kenyanist methodology. In spite of the electoral, political and constitutional abuses discussed in this book generally and especially in Chapter ….?1 below, about 78% per cent of the registered Kenyan voters went to the August 8, 2017 polls determined that their vote would count and that their quest for change would be fulfilled. The (manual) voting process was largely free, fair, secure and transparent and violence free (as required under Articles 1, 10, 38, 81, and 86 of the Constitution). But it was largely non-accurate, and non-accountable contrary to the same constitutional provisions. Significantly, there were deliberate cases of constitutional non-compliance, illegalities, and irregularities including names missing from the register of voters and (pre) stamped ballots, hence a failure to comply with the doctrines of universal suffrage (Art 38 of the Constitution) and fair administrative action (Art 47 of the Constitution). The main challenges arose when the Independent Electoral and Boundaries Commission (IEBC) refused or failed to follow the constitutional, legal and regulatory process and procedure of transmitting presidential election results through deliberate sabotage and manipulation of the Kenya Integrated Electronic Elections Management System (KIE(E)MS) and process.

1 Chapter 20 of CODRALKA 1 1 These and other cases of constitutional non-compliance illegality and irregularities were articulated in the presidential election petition filed by Raila Amolo Odinga, the presidential candidate, and Stephen Kalonzo Musyoka, the running mate of the National Super Alliance (NASA) in Hon Raila Odinga & Hon Stephen Kalonzo Musyoka v. IEBC & 2 Others.2 One of the major findings of the petition was that IEBC servers and the password or the Chair of the IEBC, Mr Wafula Chebukati had been illegally accessed by “strangers” who manipulated the system leading to the announcement of Kenyatta of the Jubilee Party as President. The Supreme Court nullified the presidential election and ordered a fresh presidential election. The 4-2 determination was rendered in the following three-pronged decision:

First, “A declaration is hereby issued that the Presidential Election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void.”3

Second, “A declaration is hereby issued that the 3rd Respondent was not validly declared as the President elect and that the declaration is invalid, null and void.”

Third, “An order is hereby issued directing the 1st Respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this deter mination under Article 140(3) of the Constitution.”4 As discussed below, President Uhuru Kenyatta and IEBC, with explicit or implicit support from some of Kenya’s development partners and transnational corporations (TNCs) ensured that no reforms were effected before the October 26, 2017 so-called re-run (?) it turned out to be Kenyatta coronation or Jubilee referendum.

25.2 Contextualising Kenya’s 2017 Electoral and Transition Process In this context, Kenyans focused on discussing three options: First, the immediate conduct of a presidential electoral justice through the realization of free, fair and accountable elections under a restructured IEBC. Second, the installation of a legitimate (people’s) President through the direct exercise of popular sovereignty under article 15 aka people power or popular uprising.

2 Hon Raila Odinga & Hon Stephen Kalonzo Musyoka v. Independent Electoral & Boundaries Commission, Wafula Chebukati and Uhuru Kenyatta, Presidential Election Petition No. 1 of 2017. The decision was a constitutional and political revolution or thunderbolt that reverberated throughout Kenya, EAC Africa and the world. It helped elaborate the myth of free and fair that Uhuru Kenyatta, the Government and ...Government observers had proposed.

3 The majority consisted of CJ David, Maraga, DCJ Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola. Justices Jackton B. Ojwang’ and Njoki Ndung’u predictably dissented.

4 The most dramatic, memorable and widely quoted aspect of the judgment was Chief Justice David Maraga summary on September 1, 2018, which also formed a core part of the full majority decision handed down on 20/9/2018.

5 Article 1 provides for sovereignty of the people. Art (1) states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” 2 Third, secession to allow the Kenyatta or Kikuyu Uthamakistan Kingdom6 to finally separate from the Kenya People’s Republic, and for Kenyans to enjoy self determination. This discourse is guided by the Kenyan and African experience on presidential election, governance, transition and secession as well as broad-based works of four Western scholars and at least four contemporary African scholars. The Western scholars are first, Dr Karl Heinrich Marx on fundamental change or “economic determinism” and class or social struggle to address economic, social and political injustice. Second, Prof Max Weber who taught on the sources of and quest for legitimacy or legitimate authority as well as cultural change as a foundation of legality.7 Third, Prof Hans Kelsen wrote on sudden or revolutionary change and necessity as a basis validity of normative, constitutional and political (or presidential transition). And fourth, Havard constitutional Prof Larry Lessig, especially on the (American) presidency and restructuring the Republic.8 The four key African scholars are first, Prof Ben Nwabueze on Constitutional Democracy in Nigeria and Africa. Second, Prof Yash Pal Ghai on ethnicity and the Kenyan system of governance, legitimacy and the rule of law, as well as the 2017 presidential transition.9 Third, ES Atieno Odhiambo on tribalism, marginalisation, the construction of Kikuyu hegemony.10 And fourth, Ben Sihanya’s work on the quest for socio-economic, political and electoral justice in a Kikuyunised Kenya. So which combination of the three options will Kenya pursue now or should the circumstances of 2017 recur? Free, fair and accountable elections? Popular uprising to install a legitimate (or people’s) president? Or separation and secession? Who have been the key players in Kenya’s socio-economic, political and constitutional gridlock? What are their interests? How will these be resolved in the public interest and in a manner consistent with electoral justice, constitutional democracy and popular sovereignty in Kenya?11 25.3 Why IEBC must be restructured for free, fair and accountable election or referendum At least three issues underline the need for fundamental restructuring or reorganization of IEBC in terms of the composition of commissioners, executive, human resources and technology or ICT. First, on September 1, 2017, the Supreme Court of Kenya invalidated, nullified and voided the August 8 presidential election and (not just numerical aspect of the result or outcome). In a 4-2

6 See authorities on origin and development of the Kikuyu uthamaki, dynasty or kingdom

7 See also Chapters……(“Theorizing and methodology of comparative constitutional democracy and administrative law…) of CODRALKA 1……Chapter 2 of CODRALKA 2.

8 See Lessig and Sustain, The President and the Administration…..See Lessig, Republic lost.

9 See also Chapters 20 OF CODRALKA 1; and 14 of CODRALKA 2.

10 See Chapter 1.

11 Chapter 15 CODRALKA 2 addresses similar and related questions with regard to the March 9, 2018 rapprochement or “handshake” between Raila Odinga and Uhuru Kenyatta. 3 determination and judgment, the Supreme Court found IEBC had committed illegalities and irregularities that rendered the entire process, including the declaration of Uhuru Kenyatta as President “invalid, null and void.” The majority consisted of Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, and Justice Smokin Wanjala and Justice Isaac Lenaola while the minority were Justice J.B. Ojwang and Njoki Ndung’u. Justice Mohamed Ibrahim was reportedly taken ill in the early stages of hearing and did not participate in the final determination.12 Second, in September 1, 2017, the Court ordered IEBC to conduct fresh elections in accordance with the Constitution and the appropriate law. Remarkably, the invalidation or nullification of the presidential results is a consequence of IEBC not following Articles 10, 38, 47, 81 and 86 of the Constitution, among others.13 Under these provisions, all elections should be regular; by secret ballot; free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner. The law is clear and there was no need for amendment rushes by Jubilee.

Remarkably, the European Union (EU) made numerous recommendations including the fact that changing election laws law at this moment is risky as it will “undermine predictability of the election, reduce the quality of legislation and generate implementation problems.”

The EU further urged IEBC to implement the following four measures:

“First, develop more detailed and transparent procedures for the counting, tallying and results transmission processes (including scanning and the “complementary mechanisms” to be used in case of technology failure). Make these publicly available ahead of the election, and train staff accordingly with clear, unequivocal written instructions.14

Second, standardize constituency results forms used (34Bs), complete with security features, and take necessary measures for their consistent and accurate use by Returning Officers. Nexus

Third, improve accountability mechanisms for cases when a voter’s biometric data is not matched in the Kenya Integrated Elections Management System (KIEMS) kits in polling stations, so there is a complete record of who has voted.

12 See John Ngirachu (2017)_ “Justice Mohammed Ibrahim taken ill,” Daily Nation, Nairobi, 29/8/2017, at http://www.nation.co.ke/news/Justice-Mohammed-Ibrahim-taken-ill/1056-4075144-8mxpbi/index.html (accessed 10/11/2013). It is remarkable that Martha Karua who was allied to Jubilee and others petitioned the nullification of the entire 8/8/2017 elections. The nullification of the presidential elections would have serious ramifications on the integrity the process of election in all the other five seats.

13 Art 10 is on national values and principles of governance.

14 European Union Election Observation Mission Republic of Kenya (2017) “Recommendations for the Re-Run Based on Findings Since the 8 August Election Day,” at https://eeas.europa.eu/sites/eeas/files/eu_eom_kenya_2017_interim_statement_14_september_4.pdf (accessed 9/11/2017). 4 Fourth, IEBC own and be fully responsible for critical ICT results systems and information and allow controlled stakeholder access.

The Executive and other state agencies such as the office of the Director of Public Prosecution (DPP) were urged to take action on at least two (2) issues:

“First, undertake thorough investigations of alleged electoral offences in order to promote prosecutions where warranted, including of IEBC staff Second, support civil society organisations having full freedom to contribute to the electoral process”15

The US through Ambasador Robert Godec also cautioned that “changing electoral laws without broad agreement just prior to a poll is not consistent with international best practice, increases political tension, and undermines public perceptions of the integrity of the electoral process.”16 Despite calls for restraint from different quarters, Jubilee has gone ahead to pass the unconstitutional Elections Law (Amendment) Bill 2017 in a rushed unilateral and flawed parliamentary process. This was intended to ensure Kenyatta became President whatever the circumstances, hence it may be called the “Kenyatta Coronation Bill.”

Third, three IEBC Commissioners resigned in April 2018, leaving the commission lame in terms of composition. [to Review, harmonize above]

25.4 The Kenya’s presidential elections and transition of 2007, 2013, August 2017, October 2017 and beyond What have been some core issues and who have been some of the key candidates actors or principals and or agents in the presidential elections and transition from 1963 to 2017 and beyond? What reforms are necessary in Kenya?

25.4.1Key issues, candidates, parties in Kenya’s presidential elections 1963-2017 Kenyan Africans have participated in elections only since 1957 when the 1954 Oliver Lyttelton Constitution allowed eight (8) Africans to the Legislative Council (LegCo). But it is only from May 1963 that their vote determined who the head of Government (Prime Minister)17 and later

15 European Union, Ibid.

16 US Department of State Press Statement (2017) “Elections in Kenya,” Washington, DC, at https://www.state.gov/r/pa/prs/ps/2017/10/274665.htm (accessed 9/11/2017)

17 In May 1963 the KANU won the majority of seats. Kenyatta, its leader, became THE PM. On 12/12/64, Kenyatta became the President and Head of State after manipulating parliament to amend the Constitution to provide that the PM would be President. There were no elections. No referendum. 5 head of state (President) would be. The table below summarizes the presidential and “premier” elections and transition from 1963 to 2017.

Year Key Candidates Key Parties Constitution and EMB18 1957 No premier nor presidential No national political British candidates; first elections for 8 parties Royal Commission African members of the Oliver Lyttelton Constitution, 1954 Legislative Council done. 19

1958 No premier nor presidential No national political Alan Lennox Boyd candidates; first elections for 8 parties Constitution, 1957 African members of the Legislative Council done

1961 No “premier” or presidential Kenya African candidates; National Union Ian Macleod Elections for African members (KANU) Constitution, 1960 of the Legislative Council done Kenya African Democratic Union (KADU) 1963 Jomo Kenyatta Kenya African Lancaster House or Ronald Ngala National Union Independence (KANU) Constitution, 1963. Kenya African Supervisor of Democratic Union elections, an official (KADU) in the Attorney- General’s office. 1969 Jomo Kenyatta KANU This consolidated the Oginga Odinga Kenya People’s Union Kenyatta (KPU) (banned just constitutional before elections). amendments 1964- Kenya became single 1969. Supervisor of party de facto. elections, an official in the Attorney- General’s office.20 1969 Constitution and

18 Election Management Body (EMB).

19 Charles Hornsby (2012) Kenya: A History since Independence, I.B. Taurus, London, at 53.

20 Charles Hornsby, ibid, at 216.

21 The 1963 Constitution had been amended from 1964-1969 to strengthen the presidency and weaken all other offices and institutions including the EMB. Under the 1969 Constitution, a presidential candidate had to be nominated by a political party. Under the KANU Constitution, KANU could only nominate one candidate. 6 KANU Constitution.21 1974 Jomo Kenyatta KANU Supervisor of elections, an official in the Attorney- General’s office. 1969 Constitution and KANU Constitution Kenya is de facto single party 1979 Daniel Toroitich Arap Moi KANU Supervisor of elections, an official in the Attorney- General’s office. Constitution of Kenya 1969; KANU Constitution 1983 Daniel Toroitich Arap Moi KANU22 Supervisor of elections, an official in the Attorney- General’s office. Constitution of Kenya 1969; KANU Constitution DCs and DOs are the returning officers in the districts and constituencies. Kenya declared single party de jure June 1982.23 1988 Daniel Toroitich Arap Moi KANU Supervisor of elections, an official in the Attorney- General’s office. Constitution of Kenya 1969; KANU Constitution DCs and DOs are the returning officers in the districts and

22 Efforts to register Oginga Odinga and George Anyona’s Kenya Socialist Party thwarted.

23 Section 2A provided that ...The move was led by President Moi, Vice President Mwa Kibaki, Mr Paul Muite (Njonjo’s) lawyer, was allegedly consulted. This was one of the peaks of Kikuyu-Kalenjin cooperation and socio- economic, political and electoral exclusion of the Luo and other tribes. 7 constituencies. 1992 Daniel Toroitich Arap Moi KANU Electoral Commission of Kenya (ECK);24 Kenneth Matiba FORD-Asili Constitution of Kenya 1969 amended in1991 Mwai Kibaki Democratic Party to repeal sec 2A and re-introduce Oginga Odinga FORD-Kenya multipartyism. 1997 Daniel Toroitich arap Moi KANU Electoral Commission of Kenya (ECK)25 Mwai Kibaki Democratic Party Constitution of Kenya 1969 IPPG26 Raila Odinga National amendments to Development Party strengthen Token or sponsored candidates multipartysm. 2002 Mwai Kibaki National Rainbow Electoral Commission Coalition (NARC) of Kenya (ECK)27

Uhuru Kenyatta KANU

Simeon Nyachae FORD People

James Orengo Social Democratic Party (SDP) Token or Kibaki-sponsored candidates 2007 Mwai Kibaki Party of National Electoral Commission Unity (PNU) of Kenya (ECK)28 Raila Odinga Orange Democratic Movement (ODM) 2013 Raila Odinga Orange Democratic Independent Electoral Movement (ODM) and Boundaries (under the Coalition Commission for Reform and (IEBC)29 Democracy (CORD)) Constitution of Kenya

24 ECK Chair was...

25 ECK Chair was...

26 Inter Parties Parliamentray Group

27 ECK Chair was..

28 ECK Chair was...

29 IEBC Chair was Issack Hassan. The CEO was James Oswago. 8 Uhuru Kenyatta The National Alliance 2010 (TNA) under the Token or sponsored candidates Jubilee Coalition

2017 Raila Odinga Orange Democratic Independent Electoral (August 8) Movement (ODM) and Boundaries (under the National Commission Super Alliance (IEBC)30 (NASA) Constitution of Kenya Jubilee Party 2010; numerous Uhuru Kenyatta statutory and regulatory amendments in 2016, 2017.31 2017 Uhuru Kenyatta Jubilee Party Independent Electoral (October and Boundaries 26) Commission Token candidates Token parties (IEBC).32

Source: Ben Sihanya researches, esp (2018) Constitutional Democracy in Kenya and Africa Vol. 1; Constitutional Democracy in Kenya and Africa, Vol. 2: Presidency, Premier, Bureaucracy and Administrative Justice in Kenya (due 2018)

The elections conducted from 1957 to 2013 have been studied and the outcomes published in the books, articles and book chapters indicated against the relevant elections in the footnotes to the table above.33 The 2017 presidential elections are under a keen scrutiny and are only available in a few articles.

30 IEBC Chair was Wafula Chebukati, the Vice Chair was Consolata Maina and the CEO was Ezra Chiloba

31 See generally chapter 21 on Electoral Justice in Kenya under the 2010 Constitution implementation, enforcement, reversals and reforms

32 Amendments to the laws to immunize electoral process from scrutiny.

33 See Chapter 20 of CODRALKA 1, revised from Ben Sihanya (2017) “Electoral Justice in Kenya under the 2010 Constitution implementation, enforcement, reversals and reforms,” Vol 13 Issue 1, 1-30, Law Society of Kenya Journal; Chapter …. of CODRALKA 2 revised from Ben Sihanya & Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The Politics and Limits of Power Sharing Agreement,” in Tensions and Reversals in Democratic Transitions: The Kenya 2007 General Elections, Institute of Development Studies (IDS), University of Nairobi, and the Society for International Development (SID) Eastern & Central Africa, Nairobi; Chapter …..of CODRALKA 2 revised from. Ben Sihanya (2009) “Reconstructing the Kenyan Constitution and State since 1963: Lessons from German, American and African constitutionalism,” Vol. 6 No. 1 Law Society of Kenya Journal pp. 1-35, Chapter 2 of this book. 9 So far, the May 1963 and December 2002 elections are regarded as the most relatively free, fair and accountable parliamentary and presidential elections. Two factors explain this. First, in both elections, the leader of the winning party was actually or perceived to be favoured by the system. These were Jomo Kenyatta (1963) and Mwai Kibaki (2002).34 Second, in both 1963 and 2002 the key beneficiaries were Kikuyus who had started entertaining a sense of entitlement from the end of Mau Mau revolt (1960) and especially or the release of Kenyatta (1961).35

Remarkably, the 2007 General Elections were marred by pre- and post-election violence (PEV) mainly because the Electoral Commission of Kenya (ECK) allowed and presided over constitutional non-compliance, illegality, irregularities and malpractices. Previous pre-electoral and post electoral violence have been a major component of electoral injustice to retain or capture power since President Jomo Kenyatta invented and used them to ensure his unopposed presidential “election” in 1969.36

In those 2007 General Elections, the campaign period and election day were generally peaceful, but the process of counting, tallying, collation, transmission and announcement or declaration of results by the Electoral Commission of Kenya (ECK) was deliberately delayed sparking tension and unrest that cast doubts on the credibility of the process. The delayed results were mainly from perceived Kibaki strongholds such as Juja while most of the results from Raila Odinga’s strongholds like Kisumu had been announced. The strategy was to vet Raila’s results , then calculate what was needed to top-up Kibaki’s so that he may win by a pre-determined margin. ECK Chair Kivuitu even pretended to warn the returning officers (ROs) against cooking results or switching off their phones. Other sources have always maintained that all results were with ECK at KICC on time, and were being doctored with the knowledge and connivance of Mr Kivuitu.37

Despite protests from the Orange Democratic Movement party and questions from international observers, about the fraudulent process, the Electoral Commission of Kenya (ECK) declared Kibaki as the duly elected President and he got sworn in at a hurriedly prepared night ceremony. This act of impunity sparked, ethnically targeted killings, displacements, violent demonstrations and destruction or damage of property that plunged Kenya into serious chaos.38

34 Many regarded Kibaki and Uhuru Kenyatta to have been projects of the Moi system.. That Moi had an understanding with the Jomo Kenyatta and Kikuyu system to return the favor of being facilitated to succeed Kenyatta. And that Moi had had an understanding with his erstwhile Vice President Mwai Kibaki that Kibaki froms the Democratic Party (DP) in 1992 ahed of the 1992 presidential elections so as to divide the Ford Opposition (further).

35 See also CODEKA 2.

36 See the table above and Chapters 13 and 14 of Ben Sihanya (forthcoming 2018) Constitutional Democracy in Kenya and Africa Vol. 2: Presidency, Bureaucracy and Administrative Justice in Kenya, op. cit.

37 Cf Makau Mutua “Kivuitu sauntered to his death”...

38 See Sihanya & Okello (2010) “Mediating Kenya’s Post-Election Crises: The Politics and Limits of Power Sharing Agreement,” op. cit. 10 Two commissions were established to investigate the 2007 Post Election Violence led by retired South African Judge Johan Kriegler and by Judge Phillip Waki of the Kenyan Court of Appeal, respectively. They made a scathing indictment on the Kenyan electoral process and the manner in which the 2007 elections were conducted.39

A flurry of reforms followed to correct the (presidential) electoral fraud. Key among these were the 2010 Constitution, the establishment of IEBC and security reforms. But these were challenged in the implementation of the nomenclature, institutional and structural reforms regarding the foregoing and related matters.

The key candidates in the 2013 Presidential elections were Raila Odinga of the Orange Democratic Movement Party (ODM) of the Coalition for the Restoration of Democracy (CORD) and Uhuru Kenyatta of the Jubilee alliance or coalition.40 The key issues were Kikuyu tribalism and exclusion of others, corruption, socio-economic decline and injustice.

In the 2013 General Elections, the security, electoral and administrative state elite affiliated to the then outgoing President Mwai Kibaki and presidential candidate Uhuru Kenyatta and the media introduced a peace crusade and (self) censorship that promoted electoral irregularities and fraud.41 Kenyatta also deployed the propaganda machine led by Cambridge Analytica to portray ODM, supporters and especially the Luo as violent and to even blame Raila for the 2007 post- election violence.42 And this, in spite of the fact that Kenyatta was on trial for 2007 offences under the ICC at the Hague.

IEBC under Chairman Issack Hassan was compromised and announced Kenyatta as the winner. Raila petitioned the Supreme Court. Notably, the Court ignored, neglected or grossly violated article 159 of the Constitution in refusing to admit Raila Odinga’s 900 page affidavit hence defeating justice. The Supreme Court dismissed Odinga’s petition. The Supreme Court in its highly criticised decision stated that although there were irregularities, they were not so substantial as to affect the credibility of the electoral process. Uhuru Kenyatta’s controversial election and declaration was thus upheld.43

39 See IREC (2008) Report of the Independent Review Commission on the General Elections held in Kenya in December 27, 2007, issued on September 17, 2008, Government Press, Nairobi; Commission of Inquiry into Post Election Violence (CIPEV) Report. See also Law Society of Kenya (2015) Committee to Review the Electoral Process (CREP) Report. The author was a member of the committee.

40 Jubilee consists of Uhuru Kenyatta’s The National Alliance (TNA) and William Ruto’s United Republican Congress (URP).

41 Chapters….Ben Sihanya (forthcoming 2017) Constitutional Democracy in Kenya and Africa Vol. 1: Tribalism, Elections, Governance, Human Rights, the Rule of Law, and Due Process, Innovative Lawyering & Sihanya Mentoring, Nairobi and Siaya.

42 Rasna Warah (2018) “Did UK firm undermine our democracy, fuel tensions?” Sunday Nation, Nairobi, 25/3/2018, at https://www.nation.co.ke/oped/opinion/Cambridge-Analytica-manipulate-elections/440808-4357302- qrmahuz/index.html (accessed 10/5/2018).

43 See chapter 13?. 11 Raila Odinga and CORD decided to “accept the court’s decision” even if they “did not agree,” so that the country may “move on.” “Accept and move on” was Kenyatta’s mantra, Kenyatta focused on celebrating the unconstitutional, invalid and illegitimate win even as the 2017 Presidential elections were approaching. Chest thumping, brinkmanship and public relations stunts continued. 25.4.2 The 8/8/2017 presidential election and petition Challenges to the August 8, 2017 elections arose when IEBC failed to follow the constitution and the legal rules and processes on managing and transmitting presidential results through deliberate sabotage and manipulation of the whole Kenya Integrated Management System (KIE€MS) and process. As it emerged in the presidential election petition filed by Raila Amollo Odinga and Stephen Kalonzo Musyoka of the National Super Alliance (NASA), IEBC servers and the IEBC Chairman’s password had been illegally accessed by “strangers” who manipulated the system leading to the announcement of Kenyatta as President.44 Kenyans generally remained calm despite the fraudulent August 2017 Presidential elections which did not meet the test of free, fair, accurate, transparent and accountable elections required by Art 1, 10, 38, 81 and 86 of the Constitution.45 There were physical attacks and other provocation by some security agents leading to the killing of at least 40 people including the young Stephanie Moraa and Samantha Pendo in Kisumu, and many others killed in Mathare, Nairobi, Kisumu, Bondo, and other parts of Kenya.46 The Kenya National Commission on Human Rights, Amnesty International and the Human Rights Watch reported that at least 40 people were killed been killed and at least 126 others were injured during the post-election ethnic cleansing witnessed from August 9 and that majority of these are Luos.47 The aggressors were mainly the police working with Mungiki, the Kikuyu ethnic militia.48 This partly explains the tribal profiling as well as verbal attacks by Kenyatta. And in the system Kenyatta publicly

44 See Supreme Court Judgment in Petition No 1 of 2017, op. cit.

45 See Chapter 13 of CODEKA 2.

46 See Kenya National Commission on Human Rights (KNCHR) (2017) Mirage at Dusk: A Human Rights Account of The 2017 General Election,” at http://knchr.org/Portals/0/PressStatements/KNCHR%20PRESS%20STATEMENT- %20ELECTION%20REPORT%202017.pdf?ver=2017-10-09-114042-250 (accessed 10/11/2017); Kenya National Commission on Human Rights (KNCHR) (2017) “Status Update on Developing Post Election Human Rights Violations,” at http://knchr.org/Portals/0/PressStatements/Press%20statement- %20Developing%20Post%20elections%20scenarios%202017%20.pdf?ver=2017-08-12-202548-347 (accessed 10/11/2017). See also Ben Sihanya Facebook discussion following the departure of 3 IEBC official in 2018.

47 Human Rights Watch (2017) “Kill Those Criminals: Security Forces Violations in Kenya’s August 2017 Elections,” at https://www.hrw.org/report/2017/10/15/kill-those-criminals/security-forces-violations-kenyas-august- 2017-elections (accessed 8/11/2017). Kegoro 5/11/17.

48 See Katharine Houreld (2017) “In edgy Kenyan slum, a rumour ends in fires and a death,” Reuters, 28/10/2017, at https://af.reuters.com/article/topNews/idAFKBN1CX0GE-OZATP (accessed 11/5/2018); Pambazuka News (2017) “Kenya: Fears of poll violence as Mungiki re-emerges,” at https://www.pambazuka.org/governance/kenya- fears-poll-violence-mungiki-re-emerges (accessed 8/5/2018). 12 adopted Mungiki, even renaming them Nairobi Business Community to give them an air of legitimacy and responsibility. Authoritarianism and tyranny was reloaded and institutionalised. But Kenyatta mobilized the police and Mungiki to unleash terror, especially in NASA strongholds. Kenyatta threatened and ridiculed the Supreme Court Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola whose opinion and votes invalidated his “election.” He threatened to “revisit” the judiciary in the event he was sworn in.49 He said:

“We shall revisit this thing. We clearly have a problem, (with the Judiciary)”50

“Who even elected you? Were you? We have a problem and we must fix it,”51 And indeed the Kenyatta Cabinet and the National Assembly which Jubilee Party controls through IEBC fraud have slashed the budget of the Judiciary, the Judicial Service Commission (JSC) and other independent institutions intended to promote human rights, the rule of law and constitutional democracy.52 The budget of the Judiciary Training Institute (JTI), and the Kenya National Human Rights Commission (KNHRC),53 among others, are also threatened. That leaves his Presidency and the Executive unchecked. How would a fresh election be conducted in this environment? In ordering a fresh presidential election, , the Supreme Court in the September 1 2017 judgment had emphasized the principle that an election is a process, not just an event or outcome. Thus in an election, preparation, campaigns, voting, counting, tallying, transmission, display or announcement and declaration can be more important than the identity of the winner, and is part of the outcome or “result.” Compliance with the rules, principles and values of the electoral system and voting method under Articles 10, 38, 81, 86, 232,54 etc of the Constitution require that IEBC officials

49 Kenyatta was quoted as saying “Even if you are so stupid, ask yourself something: The people elected an MCA, results were transmitted, and no one asked questions. Those of MPs and senators were transmitted, and no one asked questions and they have been sworn in. “Those of governors were transmitted, no one asked questions. Now how do four people wake up and say there was a technicality in the transmission of the results of the President only? How?” See Waweru Titus (2017) “President Uhuru Kenyatta threatens to 'deal with' Judiciary if re-elected,” The Standard, Nairobi, 2/9/2017, at https://www.standardmedia.co.ke/article/2001253379/president-uhuru-kenyatta-threatens-to- deal-with-judiciary-if-re-elected (accessed 11/11/2017).

50 Aljazeera (2017) Uhuru Kenyatta to court: 'We shall revisit this' 2/9/2017, at https://www.aljazeera.com/news/2017/09/uhuru-kenyatta-court-revisit-170902130212736.html (accessed 10/5/2018).

51 Ibid.

52 Walter Menya (2017) “Treasury CS raids Judiciary coffers to fund presidential poll,” Daily Nation, Nairobi, 1/10/2017, at https://www.nation.co.ke/news/Treasury-CS-raids-Judiciary-coffers-to-fund-election/1056-4119008- e5wtec/index.html (accessed 10/5/2018).

53 Cf Ben Sihanya (2017) “Constitutional Commissions and Independent Offices Commissions in Kenya: Experiences, challenges and lessons,” Chapter 8 in Ben Sihanya in this book. 13 demonstrate compliance with and adherence to the Constitution statutes regulations and rules. These same officials who refused to appreciate the significance of the election laws and process cannot oversee another (presidential) election and be expected to comply. This underlines the calls for restructuring of IEBC before fresh presidential election or referendum. The Supreme Court adversely mentioned key IEBC officials responsible for the fraudulent electoral process. These included IEBC Chair Wafula Chebukati, CEO Ezra Chiloba, ICT Director James Muhati,55 and the Director of Voter Registration and Election Operations Immaculate Kassait..56 It was imperative that these and other officials implicated do not oversee the fresh election or referendum, and that they be suspended and prosecuted. What did Chebukati do? What did the commissioners and their patrons in the Kenyatta system do? A “Project Team” was established by Chebukati and a few commissioners supporting him. But a “project team” was insufficient reform with the election offenders mentioned above still in office even if they were not to play their formal role, which they did anyway. IEBC should have been reconstituted and in a participatory manner. It should also have been given sufficient time to implement key electoral reforms including NASA’s irreducible minimums including procurement and configuration of the KIEMs kits, and procurement and distribution of ballot papers, appointment of returning officers, training and deployment of election officials and materials. Notoriously, Ezra Chiloba remained in charge of all the operations as CEO, including the Kenya Integrated Election Management System (KIE(E)Ms) which had been manipulated according the Supreme Court. Still on post was James Muhati who worked under Chiloba in the Secretariat and who had been part of the conspiracy to compromise the system and even defy the court order to grant access to the petitioner and the Supreme Court appointed ICT experts. Of course Muhati had competency and integrity issues and had much earlier been suspended for refusing to cooperate with auditors.57 He had been replaced in acting capacity by Mr Chris Musando who tried to ensure and assured Kenyans of ICT secured free, fair and accountable elections. Musando was strategically and conveniently killed just before 8/8/2017 elections.

54 Art 232 deals with values and principles of public service. See also Public Service (Values and Principles Act) 2011.

55 Muhati had been suspended because as a Director, the ICT security framework and security measures deployed by IEBC failed to eliminate the risk of external interference with the systems. See Ibrahim Oruko (2017) “Chebukati orders suspension of IEBC ICT chief James Muhati,” Daily Nation, Nairobi, 19/9/2017, at https://www.nation.co.ke/news/Wafula-Chebukati-suspends-IEBC-ICT-chief-James-Muhati-again/1056-4102788- 1117p7s/index.html (accessed 10/5/2018).

56 See paragraphs 269-273 of the Majority Judgment in Raila Amollo Odinga & Another v. Independent Electoral & Boundaries Commission & 2 Others, [Presidential Election] Petition No 1 of 2017. Jsutice Maraga, Mwilu, Wanjala and Lenaola Justice Ojwang and Njoki Ndung’u

57 Cf Chebukati letter to Chiloba. 14 There was popular consensus that Chiloba and members of the Secretariat should not be in charge of the fresh elections or any elections in future because they failed the test under Chapter Six, Article 232 of the Constitution, the Public Officer Ethics Act (2012), Anti-Corruption and Economic Crimes Act, 2003, Public Service (Values and Principles) Act (2015), and numerous statutes establish the leadership and integrity standards that all IEBC officials must meet.58 Political controversy and contestation was heightened. following IEBC’s flagrant disregard of the Supreme Court orders. Notably, IEBC demonstrated impunity by not suspending, disciplining, dismissing and taking appropriate disciplinary action against officials who had messed up the August 8 presidential election (process). Kenyatta and Jubilee supported IEBC’s lawlessness and intransigence. In the meantime an IEBC commissioner Dr Roselyne Akombe resigned. And she and IEBC Chairman Mr Wafula Chebukati confirmed that IEBC could not conduct free, fair, and accountable or credible elections.59 These developments ushered in a constitutional crisis in Kenya, as NASA and all progressive forces demanded the clean-up of IEBC and compliance with the Constitution and the law in the fresh elections. Then the then Cabinet Secretary (CS) for Education and acting Cabinet Secretary (CS) for Interior & National Government Coordination announced that the date was unilaterally slated for October 17, 2017 through the influence of Kenyatta and Jubilee, with support from some “development partners.” Then IEBC announced that “repeat” elections would be on October 26, 2017. Most of NASA’s eight-point “irreducible minimum” were as the basis for holding fresh elections. The European Union’s (EU’s) recommendations were similar to NASA’s. There were key issues regarding what were supposed to be the fresh presidential elections under art 140. Significantly Generally, the elections failed to comply with the governing principles established under Articles 1, 2, 4, 10, 38, 47, 81, 82, 86, 88, 138, 140, 163 and 249 of the Constitution of Kenya; the Elections Act and the Regulations made there under including the Electoral Code of Conduct and other relevant provisions of the law.

25.4.3 The October 26, 2017 Kenyatta’s Birthday gift, coronation, petition and transition What socio-economic and political interests were at play and how were constitutional and legal rules addressed in the context of the October 26, 2017 coronation or referendum of the Kenyatta kingship? How did these affect transition in the post 2017 dispensation? What measures did Kenyatta, IEB and security agencies or officials take in the interregnum?

25.5 Politics, litigation and posturing in the run-up to the “fresh elections”

58 Notably, Ezra Chiloba purportedly reacting to the demands that he steps aside said he had taken a “personal decision to take leave in light of the opposition’s demands, without giving more details.” See Reuters |(2017) “Chiloba takes leave a week to repeat presidential poll,” The Standard, Nairobi, 20/10/2017, https://www.standardmedia.co.ke/article/2001257888/chiloba-takes-leave-a-week-to-repeat-presidential-poll (accessed 20/11/2017). The foregoing ethical standards are also discussed in CODEKA 1.

59 Musalia Mudavadi (2017) “Akombe and Chebukati confi rm rerun is a sham,” The Star, Nairobi, 21/10/2017, at https://www.the-star.co.ke/news/2017/10/21/akombe-and-chebukati-confi-rm-rerun-is-a-sham_c1656385 (accessed 18/4/2018). 15 Kenyans consistently demanded radical action for socio-economic and electoral injustice caused by corruption, waste, ethnic partisanship, incompetence and unfair, inaccurate, not transparent, unverifiable, and unccountable processes. It was the moment to implement key electoral reforms already in the Constitution, Acts, regulations rules, codes of conduct, court decisions and international best practices. It was also clear that IEBC as an institution and Wafula Chebukati as the Chair had lost independence as they could no longer make independent decisions. Most are partisan Jubilee agents. Attacks from Kenyatta and Jubilee through the hurried Parliament legislation, and the pressure from within by the Jubilee-leaning commissioners hampered the independence and integrity of the entire Commission. In the resignation letter of Dr Roselyne Akombe stated:

“It has become increasingly difficult to continue attending plenary meetings where Commissioners come ready to vote along partisan lines and not to discuss the merit of issues before them. It has become increasingly difficult to appear on television to defend positions I disagree with in the name of collective responsibility.”60 She added:

“We need the Commission to be courageous and speak out, that this election as planned cannot meet the basic expectations of a CREDIBLE election. Not when the staff are getting last minute instructions on changes in technology and electronic transmission of results.”61 Chairman Chebukati also stated in a media statement that IEBC could not guarantee credible polls on 26/10/2017.62 He thus corroborated the statement of Commissioner Akombe and confirmed that he could not guarantee a credible election. This affirmed the popular and academic opinionthat no accountable or credible election could be held without the reforms embodied in NASA’s eight-point irreducible minimums. Remarkably, NASA withdrew Raila Odinga’s candidature from the race on 10/10/2017 following IEBC’s and Kenyatta-led Jubilee intransigence and refusal to implement Supreme Court sanctioned and necessary reforms. Raila was supported by the NASA Co-principals Kalonzo Musyoka, Musalia Mudavadi, and Moses Wetangula. NASA’s withdrawal of Raila followed the failure to consult on or otherwise implement undisputed 12 point irreducible minimum conditions required to make the fresh election fully compliant with the Supreme Court decision and eliminate the non-compliance, illegality and irregularities that the Supreme Court had found. The withdrawal gave IEBC an opportunity to streamline its operations and address the issues so as to ensure a level playing ground before fresh or “new” elections under Article 140.

60 See Dr Akombe’s press statement on resignation.

61 Ibid.

62 See Chebukati’s statement entitled “Chairman’s Address on Status of Preparedness for the Elections “ issued on 18/10/2017. 16 Elections must be on the constitutionally scheduled dates, nd fresh elections should be on an agreed date beginning with nominations as stated in Raila v. IEBC (2013).63 Initially IEBC announced that only Raila and Kenyatta would be candidates. Raila argued that this would defeat democracy and the field should be opened. Ekuru Aukot, one of the marginal, token or sponsored candidates sought judicial intervention. He relied on paragraph 290 of Raila v. IEBC. Justice Mativo ruled that.....64

It is regrettable that IEBC maintained its attitude, which was clearly evident in the manner it interpreted and applied Justice John Mativo’s judgment on Ekuru Aukot’s inclusion in the ballot, and its adoption of skewed legal positions only consistent with the whims of Kenyatta’s Jubilee. IEBC illegally allowed all the presidential candidates of 8/8/2017, and abandoned the Supreme Court 2013 judgment which it had relied on in excluding Aukot and gazzeting Raila and Kenyatta without fresh nominations.65

25.5.1 Presidential election petition No 2 of 2017 following the 26/10/2017 “election” IEBC Proceeded with the 26/10/17 election despite glaring constitutional non-compliance, illegalities and irregularities that needed to be addressed.

The Kenyatta Government through the Ministry of Interior Co-ordination also sought to frustrate the judicial processes surrounding the 26/10/2017 presidential elections. Matiangi had declared 26/10/2017 a public holiday. On 24/10/2017, he declared 25/10/2017 also a public holiday.66 This was to frustrate the ongoing and expected cases challenging the 26/10/2017 elections. .CJ Maraga invoked his powers and gave superior courts authority to hear and determine cases that were pending before them on 25/10/2017.67 The superior courts could thus sit on 25/10/2017 despite it being declared a public holiday.

Remarkably, a case seeking to stop the 26/10/2017 presidential elections was filed and was scheduled to be heard by the Supreme Court on 25/10/2017.

However, in a well calculated move by Kenyatta’s administration, the Supreme Court failed to realize quorum. Only Chief Justice David Maraga and Justice Isaac Lenaola turned up in court on 25/10/2017. Deputy Chief Justice Philomena Mwilu was reportedly attending to her driver who had been shot at on the evening of 24/10/2017, a day to the hearing. Justice Njoki Ndung’u said she was out of town and could not get a flight from Mombasa.68 Justice JB. Ojwang’ and

63 Paragraph 289-290, op. cit.

64 Ben Sihanya and Jackson Awele represented NASA in this case.

65 Raila gazzetted....

66 Machanga Michale (2017) “Government declares Wednesday, Thursday as public holidays,” Citizen Digital, 24/10/2018, at https://citizentv.co.ke/news/matiangi-declares-wednesday-a-public-holiday-179680/ (accessed 19/4/2018).

67 17 Justice Smokin Wanjala reportedly did not give reasons for failure to turn up.69 Justice Mohamed Ibrahim had been taken ill since August 2017 and had not participated in the decision of 1/9/2017 and 20/9/2017.

The central issue that under-girded the second presidential election petition was the question of whether or not IEBC ought to have conducted fresh elections before the repeat poll. In vacating the 26/10/2017 election, Raila Odinga had placed his legitimate expectation on the implementation of the directions given in the Raila Odinga 2013 Supreme Court judgment at paragraph 289 and 290 to the effect that fresh nominations would ensue under Article 138(8)(b) arising from the vacation any candidature. The 25/10/2017 petition thus sought a declaration that by operation of law, the presidential elections that had been scheduled for 26/10/2018 had been vacated.

Par 290 of Raila Odinga (2013) reads:

“Suppose, however, that the candidates who took part in the original election, dies or abandons the electoral quest before the scheduled date: then provisions of Article 138(8)(b) would become applicable, with fresh nominations ensuing” (my emphasis).70

The other issue in the petition was the question of voter turnout and legitimacy of the process. However, after massaging the data to meet Kenyatta’s and Ruto’s predictions, the voter turnout in the “repeat” poll was a paltry 38.8%71 or even less, meaning that more than 60% of the electorate (70-75%) boycotted the 26/10/2017 elections.

The petitioners contended that democracy is self-government through popular sovereignty and it is based on the principle of majority rule, and that legitimacy is determined by what more than half of the people want.

The Supreme Court dismissed the petition in what many have termed as a result of intimidation and threats.. This paved way for the swearing in of Uhuru Kenyatta at Kasarani on November 28, 2017.

68 Many remarked that the hearing date and time had been set at least 24 hours earlier and she would have travelled by public air transport, car, bus, the SGR that the Government has been touting as the best, or even police aircraft and related Government aircrafts used for urgent matters.

69 Justice Ojwang always supported the regime; and voted with Justice Njoki. Justice Wanjala had missed the delivery of the final judgment on 20/9/2017 and some experts in the print and social media viewed this as...... BS

70 Article 138(8)(b) states that a presidential election shall be cancelled and a new election held if a candidate for election as President or Deputy President dies on or before the scheduled election date.

71 See Newsplex Team (2017) “Overall voter turnout was 39 per cent in repeat election,” Daily Nation, Nairobi, 30/10/2017, at https://www.nation.co.ke/newsplex/repeat-election-Kenya-voter-turnout/2718262-4162738- ldtvr7/index.html (accessed 25/4/2018). What did Chebukati say at first..then revised....then Ruto “predicted the turn out to be..... 18 It is for these and other reasons that the hopes for free, fair, accurate, transparent, credible, verifiable and accountable elections have faded, and Kenyans have been exploring alternatives including electoral justice, socio-economic justice, the direct exercise of popular sovereignty and even self-determination through secession or separation to allow the Uthamakistan (Kikuyu) kingdom separate from the Kenya People’s Republic. There is a strong sense that only socio- economic justice and free, fair, fair and accountable elections will address Kenya’s political, legal (juridical) and constitutional crisis.

The 26/10/2017 presidential opinion polls masquerading as election raised three related questions: constitutionality, legality or validity, and legitimacy as opposed to Kenyatta: legalism or legalistic processes and outcomes. It was a tortured legalistic process. It did not meet the other standards in national, transnational or international law. As Makau Mutua, Wachira Maina and others have argued, the second Supreme Court Decision did not confer legitimacy to Uhuru’s so-called presidential election win.72

25.5.2 International law and relations in Kenya’s constitutional democracy and presidential transition What are the interests of the international community in Kenya?73 What is the composition and structure of that internal community? How have Kenyans and the international community applied transnational rules and standards on electoral justice, socio-economic justice and good governance? The multinational organs that form part of the Kenyan international community include the United Nations (UN),74 the African Union (AU)75 and the East African Community (EAC).76 Then there are bilateral parties which Kenya shares mutual trade interests, the key ones being the US, UK, EU and China. There are at least three social, economic, cultural and political reasons for the involvement of the international community in Kenya’s electoral processes. First, Kenya is a hub for international trade in East Africa. It is a key destination or market for exports from the West and recently the East. Kenya and the regions that are accessed from Kenya are also the source of raw materials. The US, UK EU, and China are keen on these.

72 Makau Mutua (2017) “Uhuru’s repeat poll blunder he may never recover from,” Sunday Standard, Nairobi, 5/11/2017, at https://www.standardmedia.co.ke/article/2001259344/uhuru-s-repeat-poll-blunder-he-may-never- recover-from (accessed 18/5/2018). Wachira Maina (2018) EastAfrican on corruption fight, June 2018.

73 Reamrakably, some scholarship and commentary regard the international community’s role in Kenya and Africa as being similar to the neo-colonial interests of the 1960s-1989, only that these are now mixed at the same time with similar intensity and effect - both Western (USA, UK) and Eastern (China).

74 See UN Charter 1941.

75 See Constitutive Act of AU on elections, good governance...

76 See EAC Treaty…. 19 Second, Kenya’s geopolitical significance lies in its location in the West of the Indian Ocean and at the coast and in a strategic location in the Horn and Great Lakes (or interlacustrine region). There are commercial and regional security interests.77 Al shabab terror and socio-economic and political competition between the US and China in the emerging world order have intensified interests in controlling or influencing Kenyan elections, politics and governance. Third, Kenya is a top favourite tourist destination in the East African region and the Horn of Africa. Thus electoral observation goes hand in hand with environmental and cultural tourism, in what is emerging as electoral tourism.78 All these three factors relate to short, medium and long term social, economic, cultural and political interests which the international community seeks to secure or monitor especially through general and presidential elections in the relevant countries. But the interests of countries such as Israel are slightly different. Israel has reportedly been seeking to have African countries renounce their historical support at the United Nations for Palestinian independence and, perhaps, abstain from criticizing Tel Aviv policies in the occupied territories. Moreso, it is seeking African support in organizing the Israeli-Africa summit in 2019 and candidacy for non-permanent membership of the UN Security Council in 2018. That, and the quest to expel African migrants, explains the visit by Prime Minister Benjamin Netanyahu to Kenya on Kenyatta’s coronation in November 2017. There79 are also a set of reasons why the international community has been keenly participating in Kenya’s electoral process. First, Kenya has been a UN member state since independence and is bound by the UN Charter 1945, Universal Declaration of Human Rights (UDHR) 1948, and numerous UN or other international legal instruments on electoral justice, good governance, socio-economic justice human rights, peace and security and international cooperation. Second, Kenya is a member of the AU, EAC and COMESA, and increasingly, there is anecdotal emphasis on non-indifference, rather than non-interference on matters within domestic jurisdiction like elections. Third, since Jomo Kenyatta introduced pre-electoral and post-election violence and ethnic cleansing in 1969, Kenya’s presidential elections have been violent and have attracted international attention. And some members of the international community have sometimes made the situation worse.80 The international community has been sending their representatives to observe election processes in Kenya since the independence election in 1963. In the 2017 General Elections, they displayed a duplicitous attitude and behaviour and a selfish protection of their self-interest by conducting biased, partisan and non-objective observation regarding the presidential election process.

77 See Faith Mabera (2016) “Kenya's foreign policy in context (1963–2015),” Volume 23, 2016, Issue 3, South African Journal of International Affairs.

78 Ibid.

79 To harmonise these.

80 Cf monitors in 2017. 20 International observers were fast to sanitize the fraud that was the August 8, 2017 General Election. These included the African Union, the European Union, the Commonwealth Nations, and the United States-based Carter Center that endorsed the 8/8/2017 results.81 Remarkably, the election observer statements were cited by Kenyatta’s Jubilee Party as evidence or proof of a free, fair and accountable election.82 Yet, when the observers questioned them during the passing of the unconstitutional election law amendments,83 the Jubilee Government dismissed or disregarded the comments. Ambassadors from the EU and the US had half- heartedly cautioned Kenyatta’s Jubilee Government against pushing through amendments to election laws, because international best practices discourage such changes so close to polls.84 Later International observers focused too much on whether there was peace on the election day and failed to observe or accurately report on how the results were being transmitted. For instance, Mr John Kerry the leader of the Carter centre observer group cynically, sarcastically and casually observed: “I did not see any dead voters….”85 Kenyatta and Jubilee could not get a more hitherto credible supporter for their fraud. What was in it for the US? For the Carter Centre, given apparent credibility, they have built over the years? Answer ... Cite sources. Significantly, after withdrawing from participating in the 26/10/2017 repeat elections, NASA leader Raila Odinga went to the UK where he gave a speech at Chatham House,86 London on October 13, 2017. His talk focused on the then unfolding constitutional and political situation in Kenya. Jubilee organized hecklers there who were countered and overwhelmed by NASA supporters87

81 The leaders of the main election observer groups were: Mr.Thabo Mbeki, former President of the Republic of South Africa for the African Union, Marietje Schaake for the EU and John Kerry for the Carter Center.

82 See written and oral submissions by Mr Fred Ngatia counsel for the 3rd respondent. . The petitioner rebutted the constitutional and evidentiary legality, validity and legitimacy of the election observer report.Mr Charles Kanjama the Nairobi LSK Branch Chair even applied to be enjoined as amicus with the intention to introduce an election observer group report . Yet amicus curiae roles require focus on legal interpretation. His application was rejected with all the Supreme Court Judges indicating Mr Kanjama was a general law practitioner.

83 Cf Chapter 20 of CODRALKA 1…

84 Rawlings Otieno (2017) “International community oppose changes to Kenya's election laws,” The Standard, Nairobi, 3/10/2017, at https://www.standardmedia.co.ke/article/2001256255/international-community-oppose- changes-to-kenya-s-election-laws (accessed November 10, 2017). Again, the US response was very mild where Kenyatta was concerned. They were more critical of NASA’s positions.

85

86 Royal Institute of International Affairs – an independent policy institute based in London.

87 A European working for the BBC whom we had worked with on a case on criminal justice in Kenya and access to information in Kenya later told me sarcastically that she was also at the Chatham House. That Raila had been heckled.I told her those were Kenyatta’s Kikuyu supporters who were effectively neutralized by Kenyans. She said Kenya is tribal. Is that news? The question is which tribe in unconstitutionally hogging socio-economic resources and power. She kept quiet. 21 In a statement that under-girded the significance of the international community on Kenya’s diplomatic, political, democratic and constitutional process, Mr Salim Lone stated in a media statement that the news of Raila Odinga’s “withdrawal” would “make this visit help focus even more attention on the need for Kenya’s friends to help counsel against the rapidly diminishing space for free and fair elections and the rule of law.”88

Raila Odinga also visited the US in another bid to reach out directly to the international community. He met, inter alia, Mr Yamamoto Donald, the Assistant Secretary of State for African Affairs in the US Department of State, Michael Phelan, Director of the Senate Foreign Relations Committee, and Greg Simpkins, Director of the House of Representatives sub- Committee on Africa and Senator Christopher Coons who chairs the House Foreign Relations Sub-Committee on African Affairs. Raila also made a presentation facilitated by..in…quote.

These visits helped place issues, evidence and facts on the table regarding Kenya’s 2017 electoral process and transition. US, EU and UK governmental agencies and transnational corporations had influenced academics and the media to portray Raila as a serial sore loser, and Raila, NASA and Luos as violent and bitter.89 Salim Lone thus spoke for Kenyans and their genuine partners when he stated:, “I believe that his very sober discussions on the current Kenyan crisis has altered some basic US perception of Kenya’s stability and perception of Raila himself.”90

But even as Raila’s tour continued, the Kenyatta Government kept spying on him and threatening his security, pointing to a panic and fear on their part.91 Quote.

Following Kenyatta’s declaration as President Elect on 30/10/2017, only President Yoweri Museveni of Uganda and President Pierre Nkurunziza of Burundi congratulated Kenyatta immediately after the 26/10/17 sham election results were announced.92 This also pointed to the

88 Peter Leftie (2017) “Raila Odinga travels to UK for democracy forum,” Daily Nation, Nairobi, 12/10/2017, at https://www.nation.co.ke/news/politics/Raila-travels-to-UK/1064-4135876-haqjm0z/index.html (accessed 12/12/2017). Salim Lone has been Raila Odinga’s advisor on media…

89 The TNCs include Cambridge Analytica (UK), and … US which had done the video, the Real Raila, and Uhuru is for us. . Hitherto respectable voices include Charles Hornsby who had authored Kenya: A history since Independence focusing on the injustices of the Kenyatta – Moi – Kibaki – Kenyatta plutocracy; professor of politics at Warwick and Nick Cheeseman.. BBC and and CNN had carried biased unsupported stories about Kenya.

90 Chris Wamalwa (2017) “Nasa changes tact in current political heat,” Daily Nation, Nairobi, 19/11/2017, at https://www.nation.co.ke/news/Extraordinary-steps-taken-to-protect-Raila-in-US/1056-4193146- 3c5e93z/index.html (accessed 18/5/2018).

91 Ibid

92 President Pierre Nkurunziza forced himself into third term. He also led presidential electoral fraud and manipulation. See Aljazeera (2017) “Burundi court forced to validate leaders third term….Museveni has also been rigging elections and he has recently sought to amend the constitution to remove presidential age limit which was 75. He rigged elections in 2016. He has harassed and even detained opposition leader Kiza Besigye. See Amama Mbabazi v. Museveni & Others, Petition No 1 of 2016. 22 underlying legitimacy concerns about his “re-election.” The US, EU and others only followed suit after the Supreme Court decision upholding the “re-election.”

25.6 Addressing presidential, Kenya’s political, governance and constitutional crisis Three key issues undergird Kenya’s ongoing political and constitutional crisis and process: First, what is the nature of the occupancy or vacancy in the office of the President between 8/8/17 and when a new President is constitutionally sworn in the March 9, 2018 Raila Kenyatta rapprochement or similar scenarios in the future? Second, did the Constitution cease to be the “grund norm” (or basic norm or basic, fundamental law)93 from 1/9/2017 when the Supreme Court’s nullified the 8/8/2017 Presidential election and 9/3/2018 (the date of the Raila-Kenyatta handshake) or until the stalemate is resolved as argued by some? Third, is Kenya in a looming or an ongoing presidential, diplomatic, political, governance or constitutional, stress or crisis? What is the difference, if any? Does it matter? In the 2013 Presidential elections whose key candidates were Raila Odinga of the Orange Democratic Movement Party (ODM) of the Coalition for the Restoration of Democracy (CORD) and Uhuru Kenyatta of the The National Alliance’s (TNA’s) Jubilee Coalition, the Supreme Court dismissed Odinga’s petition. The Supreme Court in its counter constitutional, counterfactual, counterintuitive and highly criticised decision stated that although there were irregularities, they were not so substantial as to affect the credibility of the electoral process. Remarkably, the Court ignored, neglected or grossly violated article 159 of the Constitution in refusing to admit Raila Odinga’s 900 page affidavit evidence hence defeating justice. Article 159 requires that courts administer substantial justice without undue regard to technicalities of procedure. Uhuru Kenyatta’s controversial election and declaration was thus upheld.94 In the 8/8/2017 presidential elections, the two candidates, Raila Odinga and Uhuru Kenyatta were still the main contenders. IEBC repeated the same mistakes of outright violation of the Constitution and the law by inter alia, not following the rules on voting, collating and tallying results, transmission, verification, announcement and declaration procedures prescribed for the presidential election under the Constitution, the Elections Act, the IEBC Act, among others. The Supreme Court under the leadership of CJ David Maraga invalidated, nullified and voided the election and ordered IEBC to conduct fresh elections in accordance with the Constitution and the law within 60 days. 25.7 Nature of the occupancy or vacancy of the Kenyan Presidency A key question that arose following the standoff between Jubilee, on the one hand, and NASA and most Kenyans, on the other, was on the mode of conducting the fresh election is: What if elections were not held within 60 days under Art 140?95 What is the nature of the occupancy or

93 We discuss the Constitution as basic law or grund norm in Chapters……(also chapter on theorizing, methodology…) and chapters …… of CODEKA 2…..

94 It has been argued that it is Chief Justice Willy Mutunga who prompted Kenyatta and Jubilee lawyers to have the affidavit (hence key evidence) rejected…cite… 23 vacancy in the office of the President? Who will be the President in that event? In addressing this, I adopt a three pronged typology. First, under article 136(2) of the Constitution, presidential elections are to be held every second Tuesday in August in every fifth year (compare after five years). Thus the President’s term of office constitutionally starts on the date he or she is sworn in and constitutionally ends when another (immediate successor) President is constitutionally sworn in following his or her valid and legitimate declaration as President-elect. In the event there is a run-off or fresh elections, the incumbent President Kenyatta in 2017) remains a “temporary incumbent” until another President is validly and legitimately elected, declared and sworn in (Art 146). A President whose declaration is nullified by the Supreme Court is a temporary incumbent, and at no point in time does he or she transition to a “full” President, even if fresh elections are not conducted in 60 days. Second, there can be a vacancy in the Office of the President under articles 144, 145 and 14696 in the following four circumstances: First, if the President dies (Art 146). Second, if the president resigns, in writing, addressed to the Speaker of the National Assembly (Art 146). Third, if the President otherwise ceases to hold office under Article 14497 or 14598 or under any other provision of the Constitution (my emphasis).99 Fourth, vacancy can be created under articles 144 and 145 if the President is impeached due to physical or mental incapacity to perform duties. Presidential impeachment may also be grounded on gross violation of a provision of the Constitution, gross misconduct or if the President has committed a crime under national or international law. In the event of such a vacancy, the Deputy President is to assume office as President for the remainder of the term of the President.100 If the office of Deputy President is vacant, or the Deputy President is unable to assume the office of President, the Speaker of the National Assembly shall act as President and an election to the office of President is to be held within sixty (60) days after the vacancy arose in the office of President.101 What was the status of the Deputy President (William Ruto) from 8/8/2017, or from 1/9/2017 until 26/10/2017? Or until a new President is constitutionally elected and sworn in? What of where the fresh election that meets constitutional rules and standards is not conducted within 60 days from invalidation as stipulated under Art 140(3)?

95 Article 140 states....

96 Article 146 is on vacancy in the Office of the President.

97 Article 144 is on removal of president on grounds of incapacity.

98 Article 145 is on removal of president by impeachment.

99 This means that the office of the President may be vacant in circumstances beyond the ones listed here.

100 This is similar to the formula in the US.

101 Under section...of the 1969 Kenya Constitution, a vice president acted for.....See CODEKA 2. 24 Third, Commenting on Uhuru Kenyatta’s temporary incumbency, Raila Odinga said:

“At the moment, President Kenyatta is a caretaker president with no powers at all to govern this country, he lost his powers on August 8 when Kenyans went to the polls.”102 Similarly, according to James Orengo,

“After the 60 days are over, [from 1/9/2017] President Kenyatta will cease being the President of Kenya and turn into an ordinary citizen. The AG should stop misleading Kenyans on that.”103 The then Attorney-General Githu Muigai argued that Kenyatta who had been sworn on April 9, 2013 would serve until the next President is sworn in, whether presidential elections were conducted within 60 days from invalidation from 1/9/17 or not.104 Githu was quoted in an interview saying that there was a sitting President and that there must be a referendum if secession or other avenues were to be pursued. He said:

“There is no room for the creation of any other form of government. Until the day of the swearing-in of a newly elected president, the legitimacy of the government cannot be questioned.”105 Moreover, some Kenyatta and Jubilee Party supporters argued Kenyatta would serve up to 2022 in case no elections were held. This is unconstitutional, erroneous and a typically contrived or manipulative constitutional interpretation. The Constitution foresees and addresses the scenarios obtaining in Kenya after invalidation (1/9/2017) and addressing them under articles 146 and 138, among other provisions. These arguments on Kenyatta’s shaky presidential incumbency and his uncertain future reportedly sent shock waves to Kenyatta & co, with a determination to get sworn in at all costs. A Kenyatta sympathizer, Advocate Kibe Mungai reportedly argued in one of the many proxy they had filed in court that Kenya had to have elections, even bad ones. And equally Kenyatta compliantjudges Erastus Githinji (Court of Appeal),106 George and Kanyi Kimondo (High Court)107 contrived decisions that ended with the mantra: There must be elections on 26/10/2018.

102 Nelcon Odhiambo (2017) “Raila says president Kenyatta’s powers are limited,” Daily Nation, Nairobi, 25/9/2018, at https://www.nation.co.ke/news/politics/President-powers-limited-says-Raila-/1064-4110608- gutwfqz/index.html (accessed 12/12/2017).

103 Ibid.

104 Daily Nation (2017) “No room for caretaker govt in Kenya, says AG Githu Muigai,” The EastAfrican, Narobi, Kampala & Dar es Salaam, 22/9/2017, at www.theeastafrican.co.ke/news/No-constitutional-crisis-if-polls- delayed/2558-4107436-uc3is7z/index.html (accessed 10/11/2017). Githu was reportedly forced to resign on February 13, 2018 and replaced by former president and Justice of the Court of Appeal Paul Kihara Kariuki.

105 Ibid.

106 See Alghurair CoA case

107 See election technology case. 25 Activist Okiya Omtata had also gone to Court to seek orders for the formation of a caretaker Government. He sought, inter alia, orders to compel Kenyatta to vacate office on November 1 and a caretaker Government to be formed. The petition was pegged on the indication that there would be no repeat elections on 26/10/2017 following Raila Odinga’s “withdrawal” and in light of the Supreme Court’s position on Raila Odinga 2013 that in such a scenario, fresh nominations have to be conducted.

25.6 The Secession Debate in Kenya Secession means a region separating or withdrawing from a recognised state and forming another state. Secession talks have grown intense in Kenya in the recent past, especially following the August 8, 2017 fraudulent elections, and the forced “ and boycotted elections” of October 26, 2017. The key drivers of this movement include socio-economic injustice and exclusion of most Kenyans from essential Government services, domination of the political leadership through election rigging by the Kikuyu tribe, inequitable distribution of socio-economic resources, marginalisation and deep rooted cultural and ideological differences. The debate is widespread and only opposed by some Kikuyus.108 However, some analysts argue that the regions and communities seriously considering secession post 2017 include the larger Western Kenya made up of Luo, Luhya, Tesos, Kisii and Kuria; Coastal Kenya entailing Swahili, Mijikenda (or nine tribes), Pokomo, Giriama, Taita, Taveta and North West or North Rift Kenya comprising Turkana, and Pokot communities.109 These are economically, socially, culturally and politically marginalised 110 and it is the reason they have agitated for separation. Dr David Ndii, an economist and political strategist thus wrote in the Daily Nation on 26/3/2016:

“When people find they cannot live together they part company. Kenya is for the most part an abusive relationship. It is about time we start talking about ending it. This ought not be a difficult conversation.”111 There have been at least three (3) secession debates in Kenya since independence in 1963.112 108 BS

109 See Godfrey Sang (2017) “Possibilities and impacts of Self-determination or Secession for Kenya,” The Star, Nairobi, 26/8/2017, at https://www.the-star.co.ke/news/2017/08/26/possibilities-and-impacts-of-self-determination- or-secession-for-kenya_c1623081 (accessed 20/11/2017). See also Maria Nzomo’s

110 For 20 years, coastal people have participated in presidential elections. ...It has not made a difference through the...generationIt will not make a difference for the future generations

111 For a response by a Kenyatta regime apologist, see Peter Mwangi Kagwanja (2016) “Ndii’s ‘genocide’ thesis a ploy to defeat democracy in 2017 poll,” Sunday Nation, Nairobi, 3/4/2016, at http://www.nation.co.ke/oped/opinion/Ndii-s-genocide-thesis--a-ploy-to-defeat-democracy/440808-3143562- 42pfja/index.html (accessed 20/11/2017). [quote: jonanga, jokoyo.....; to add from ogot, ESAO…]

112 Cf HWO Okoth Ogendo (1972) “The politics of constitutional change in Kenya since independence, 1963- 1969,” Vol. 71 No. 282, African Affairs 9-34. 26 First, the Somali community living in the then North Eastern Province113 sought to secede during the eve of Kenya’s Independence in 1963. When the Second Constitutional conference at Lancaster House failed to give them their demand to join Somalia, Somalis decided to boycott the election of May 1963.114 The issues they complained of were similar to the ones recurring in Kenya before and during 2017 and 2018. Most of their grievances were initially directed against the British Colonial Government which had isolated the people and the region and regarded it a “barren land that had no use to her majesty.” The residents complained of marginalisation and lack of development in the region, including oppressive laws that denied them the freedom of movement, among others.115 Indeed, a referendum conducted by the British Government on secession was supported overwhelmingly by the residents but it was never implemented.116 This led the residents to rebel and seek to secede and be part of Somalia. It also ushered in and the emergence of a local armed group.. The Kenyatta Government would later wage war against the residents and the armed group that the Kenyatta system called shifta. This was to suppress their calls for secession. The “Shifta war” culminated in the massacre of many residents by the Kenyatta Government in Garba Tula, Isiolo.117 Second, in February 2003, 14 Rift Valley MPs called for the formation of a Rift Valley State118 because they considered the newly elected Kibaki government discriminatory, tyrannical and oppressive. Numerous Kalenjin, Luo and other politicians and businessmen were excluded from appointment, contracts and tenders by the Kibaki-Kikuyu regime.119 Third, in the 2000s and 2010s, the Mombasa Republican Council (MRC) advocated for secession of the Coastal strip, citing neglect and economic marginalisation. Their grounds for secession include historical injustices meted on the locals by successive governments since independence,

113 Used to be referred to as Northern Frontier Districts (NFD). These were under a permanent state of emergency until 1992. … Constitutional (Amendment) Act No 6 of 1992 repealed section 127 of the 1969 Constitution….

114 Godfrey Sang (2017) “Possibilities and impacts of self-determination or secession for Kenya,” The Star, Nairobi, 26/8/2017, at https://www.the-star.co.ke/news/2017/08/26/possibilities-and-impacts-of-self-determination- or-secession-for-kenya_c1623081 (accessed 20/11/2017).

115 Ali Abdi (2017) “Bloody lessons we should learn from Shifta secession war,” The Sunday Standard, Nairobi, 19/11/2017, at 20. Some of the oppressive colonial laws, including constitutional provisions which facilitated ruling the region as if it was in a state of emergency were only repealed in 1992. See BS CODEKA 2.

116 Ibid.

117 Ibid. Cf Wagalla Massacre under Moi.

118 James Mwamu (2017) “The call for secession is premature, unnecessary, shelve it,” The Standard, Nairobi, 25/8/2018, at https://www.standardmedia.co.ke/article/2001252470/the-call-for-secession-is-premature- unnecessary-shelve-it (accessed 29/4/2018).

119 See Joe Khamisi (2018) Kenya: Looters and Grabbers: 54 years of corruption and plunder by the elite, 1963- 2017, Jodey Book Publishers, Plano, Texas, USA, at https://kenyatalk.s3.amazonaws.com/2018/05/233048_158582a7703acb3c8c21b970f23aaee4.pdf (accessed 18/5/2018); cf David Musila, Seasons of Hope…; Moody Awori:….Riding a Tiger…. 27 especially land dispossession. The Kibaki Government sought to outlaw the group in 2012 but a three-judge bench consisting of Justices John Mwera, Mary Kasango and Francis Tuiyott ruled that the Gazette Notice that declared the MRC illegal was unconstitutional.120 And in the context of the August 8, 2017 (presidential) elections, Kenyans who are have been marginalised by Kenyatta’s autocratic presidency started engaging in secession talks.

25.7 Constitutionality, legality and legitimacy of secession in Kenya and Africa Secession is constitutionally anchored in Kenya. It is part of popular sovereignty which has three components under the Constitution of Kenya 2010 and in constitutional theory and practice: First sovereignty is the people’s constitutive power including Constitution-making and constitutional amendment. Second, sovereignty is the power to elect, recall or impeach governors or rulers. Third, sovereignty is the power to monitor and evaluate governance, government, governors or rulers and to hold them accountable. Kenya has ratified international treaties and agreements which recognise the right of self- determination for all peoples. There are also general rules and principles of international law that apply to Kenya. These include state practice under Article 2(5).121 There have been successful and unsuccessful secession movements from which Kenya can learn important lessons. These include Eritrea, South Sudan, Katanga and Biafra.122 Article 2(6) of the Constitution gives ratified treaties the force of (statute) law. There are at least three treaties that establish the right to self-determination: First, article 1 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Second, the International Covenant on Civil and Political Rights (ICCPR) (1966/1976), international declarations to which Kenya is party to and are constitutionally binding states:

“All peoples have the right of self-determination. By virtue of the right they freely determine their political status and freely pursue their economic, social and cultural development.” Second, Article 20 of the African Charter on Human and Peoples Rights (ACHPR) (1981) that states:

120Ali Abdi, Ibid.

121 Article 2 (5) states...

122 See Chinua Achebe (1984) The Trouble With Nigeria, Heinemann, Educational Publishers, New Zealand; Chinua Achebe (2012) There was a Country: A Personal History of Biafra, Heinemann Publishers, London.; Ali Mazrui, The Trial of Christopher Okigbo; Chimamanda Ngozi Adichie, Half of a Yellow Sun….; Achebe Poems: “The causalities,” “vultures,” and generally Christmas in Biafra and poems; John Pepper Clerk poem “The casualties”….Wole Soyinka (2012); But Achebe (CA) did not heed to Soyinka’s (WS’s) permission to write on his and Igbo marginalization…just like in Kenya….WS changed his mind….; Soyinka 2017 News week 28 “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.” There are two processes to pursue in the quest for secession. The first is to rely on the Constitution and the organs created under it including the National Assembly and the Independent Electoral and Boundaries Commission (IEBC). What is the purpose here? One is required to raise one million signatures and get the support of at least 24 county assemblies (Article 257). One can also have a motion initiated by Parliament under Article 256). Thereafter, the secession is to be supported by a simple majority at a referendum in which at least 20 per cent of registered voters in each of at least 24 counties must participate (Article 255(2)) for it to be approved. Citizens in all the 47 counties are entitled to vote.123 Some of the issues have been: why should those who control the state and benefit from the hegemony vore? Thye would obviously oppose and frustrate self determination. The second option is to table a petition before the African Commission on Human and Peoples Rights for consideration.124 This is under the authority of Article 1 of the Constitution on the direct exercise of sovereign power of the people, among others. It is the most viable option for the aggrieved population of Kenya who suffer the brunt of Jubilee’s IEBC and facilitated parliamentary tyranny and the manipulated IEBC that may not facilitate free, fair and accountable referendum vote. As Dr Ndii argued, “Kenya is more ethnically polarised and angry than ever before.”125 The adamant and reluctant Kenyatta Government frustrated all electoral reforms that had been initiated through political consensus in 2016, and sanctioned by the Supreme Court in Petition No. 1 of 2017. The Government further polarized the nation through tribal killings using state machinery, and the suppression of the freedom of expression, self-determination and popular sovereignty. In the aftermath of the fake presidential elections of 26/10/2017, some progressives had already made moves to kick start the secession process. Homa Bay Town MP George Peter Opondo Kaluma drafted a Bill seeking the secession of 40 counties to form the People’s Republic of Kenya.126

123 The Supreme Court and IEBC decision on the October 26, 2017 opinion polls on Kenyatta coronation seem to indicate that not all Kenyans, or Kenyan constituencies or counties need to vote to validate or legitimize such an important national process.

124 Godfrey Sang (2017) “Possibilities and impacts of self-determination or Secession for Kenya,” The Star, Nairobi, 26/8/2017, at https://www.the-star.co.ke/news/2017/08/26/possibilities-and-impacts-of-self-determination- or-secession-for-kenya_c1623081 (accessed 20/11/2017).

125 David Ndii (2016) “Kenya is a cruel marriage, it’s time we talk divorce” Daily Nation, Nairobi, 26/3/2016, at http://www.nation.co.ke/oped/opinion/Kenya-is-a-cruel-marriage--it-s-time-we-talk-divorce/440808-3134132- 154vra2/index.html (accessed 21/11/2017).

126 Patrick Lang’at (2017) “MP Peter Kaluma drafts Bill for secession of 40 counties,” Daily Nation, Nairobi, 13/11/2017, at http://www.nation.co.ke/news/politics/Peter-Kaluma-secession-40-counties/1064-4185586- 13tcbf3z/index.html (accessed 7/12/2017). 29 While critics have opined that some counties whose residents do not subscribe to the secession agenda were included in the People’s Republic of Kenya, some counties of also been retained in the Central “Republic” of Kenya when they are not arguably for the Central Republic. For instance, Maasai land and consistently voted along Kenya People’s Republic.127

The Map Below did rounds in Kenya’s Scocial Media as the secession debate took centre stage.

Source: My argument then was that within a reasonable time following secession the people are to be given freedom to choose whether to belong to the Uthamakistan Kikuyu Kingdom or the Kenya People’s Republic. And even though Uthamaki would be landlocked within the Kenya People’s Republic, they could negotiate access to the Indian Ocean the way Lesotho and South Africa relate and operate.

127 See map below. 30 Comparatively, Nigeria has experienced similar historical ala recent clamour secession by the Biafra people. In 2017, the Biafrans boycotted a gubernatorial poll in Nigeria’s Anambra state, leading to a low turnout of 22 per cent only. Circumstances were similar to the Kenyan scenario as 26,000 police officers backed by helicopters and gunboats were deployed to ensure elections took place. Like Kenya, people were arrested and the Indigenous People of Biafra (IPOB) group designated as a terrorist group. 128 Just like Kenyatta, Buhari has shunned sober political debates that could solve the issues and concerns raised by the Igbo community who feel as marginalised as a large portion of Kenyans agitating for reforms. The history of Biafran secession dates back to the 1960s when the Igbo people started advocating for the creation of a Republic of Biafra comprising the South-East and South-South regions of Nigeria. This was mainly motivated by the killing, wounding, harassment and intimidation129 of the Igbo in the South West and in the North of Nigeria.....see Achebe above…… 25.8 Secession as a failure of devolution in Kenya in Kenya and Africa The March 4, 2013 General Elections marked the beginning of the operationalization of devolution. Its implementation begun officially after the elections.130 It was highly expected that the devolved system of government would provide equal opportunities to all citizens including tribes, classes, youth, gender PWDs and the aged by creating conditions that would encourage their participation in the country’s governance. The key focus was devolution. Article 174 of the Constitution lists nine objectives of devolution, while Article 175 lists principles underpinning the establishment of county governments which include democracy, separation of powers, reliable revenues and gender sensitivity. The objectives of devolution are outlined and addresses questions of socio-economic justice, electoral justice, self-determination and constitutional democracy as I have indicated by emphasizing the key concepts.:- a. To promote democratic and accountable exercise of power; b. To foster national unity by recognizing diversity; c. To give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the state and in making decisions affecting them; d. To recognize the right of communities to manage their own affairs and to further their development; e. To protect and promote the interests and rights of minorities and marginalized communities;

128 The Standard (2017) “Nigeria state poll peaceful despite “Biafran boycott” call,” The Standard, Nairobi, 21/11/2017, at 34. IPOB leader is Nnamdi Kanu. To Cite Achebe and Nwabueze.

129 That is, loss of life (more than 1M by end of the war in 1990, mainly children; loss of limbs, loss of liberty; loss or destruction of property; including bank deposits….

130 See chapters...... 31 f. To promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; g. To ensure equitable sharing of national and local resources throughout Kenya; h. To facilitate the decentralization of state organs, their functions and services, from the capital of Kenya; and, i. To enhance checks and balances and the separation of powers. It has been contended by different scholars and opinion leaders that a more decentralised government is crucial, given Kenya’s diversity and experience with political use of central power.131 It is without doubt that the 47counties are in a better position to facilitate socio- economic, cultural and electoral participation and justice as well as deliver social services than the national government because they have specific challenges and the local knowledge to address them.132 However, from another perspective, others have argued that devolution is more or less likely to undermine national unity as it encourages fragmentation of the state along partisan and ethnic lines.133 It is a highly complex undertaking which Kenya has embarked upon in a context of political division in the country and in the counties.134 Devolution would provide a solution to Kenya’s problems only if the Nationa Government facilitated and fully promoted it. There would also be need to further share, devolve and secure checks and balances regarding the national executive powers. 25.9 Summary of Findings, Conclusions and Reforms on Sovereignty, Electoral Justice and Transition in Kenya and Africa Imperial presidency and premiership in Kenya, Nigeria, South Africa, Uganda, and Tanzania …. Presidential and premier lawlessness and impunity…… Presidential and electoral fraud….. Corruption and looting……

131 World Bank (2012) “Devolution without disruption: Pathways to a successful new Kenya,” P 1, Executive summary, at 1, at http://www.tisa.or.ke/uploads/Devolution-without-disruption-31.pdf (accessed 11/12/2017) See also Yash Ghai (2007) “Devolution: Restructuring the Kenyan State,” Lecture at the African Research and Resource Forum (ARRF) at the Kenya International Conference Centre (KICC) Nairobi, 23/11/2007 at http://www.arrforum.org/publications/occasional-papers/40/94-devolution-restructuring-the-kenyan-state.html ( accessed 12/12/2017).

132 Worldbank 2012 , ibid. to Redraft.

133 J. D. Barkan with Michael Chege (1989) “Decentralizing the state: district focus and the politics of reallocation in Kenya” Vol. 27 (3) Journal of Modern African Studies 431-53.

134 World Bank 2012 ibid. 32 Ethnic exclusion …….. Lessons? Next steps? Constitutional reforms again? Cf waves? Constitutional fidelity this time round? Who shall regulate regulators? Oversight, President, PM and oversight agencies in Kenya and Africa? The people. Responses by the people, through reaslection of popular sovereignty eg election boy cott; demos; economic boycotts in Kenya; popular uprising in Sudan……… ...the discourse continues in class, articles, books, online, in the blogosphere, social media, and appropriate fora… © Prof Ben Sihanya, JSD (Stanford), Revised 3/5/2019; 6/7/; 19/12/2019 email: [email protected]; [email protected] (use both) url: www.innovativelawyering.com

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