ADEQUACY OF POST 2007 CONSTITUTIONAL MECHANISMS IN ADDRESSING ETHNIC CONFLICT IN PRESIDENTIAL ELECTIONS IN KENYA BY IRUNGU KANG’ATA G80/51463/2017 A THESIS SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF DOCTOR OF PHILOSOPHY (PHD) IN LAW, SCHOOL OF LAW, UNIVERSITY OF NAIROBI 2020 i DECLARATION I hereby declare that all work contained in this thesis is my original work and has not been submitted to any university for the conferment of any academic award. All sources have been duly cited and acknowledged.No external editorial services were sought. Signature……………………………. Date………………………….. IRUNGU KANG’ATA REG NO. G80/51463/2017 SUPERVISION I hereby certify that the thesis herein which is hereby presented for examination has been duly supervised by the undersigned. Signature……………………………. Date………………………….. Dr. Scholastica Omondi- Supervisor Signature……………………………. Date………………………….. Dr. Duncan Ojwang'- Supervisor Signature……………………………. Date………………………….. Dr. Lois Musikali-Supervisor ii DEDICATION This is dedicated to my late dad Joseph Irungu and late mum Margret Wangeci.Your humility and push for tenacity was such a great inspiration .Special thanks to my wife Mary and my three daughters –Rita ,Una and Etana.You have been my very good cheerleaders . To all Kenyans (and other non-Kenyans ) that have suffered political ethnic conflict including my uncles in Riftvalley (Uncle Gatweci and late Wamahiu).I hope ideas that I have generated herein can birth a peaceful solution. To Reggae which has inspired my pursuit of Justice for everyone ,I remember words of Marcus Mosiah Garvey , “Up ye mighty race,you can accomplish what you will”. iii ACKNOWLEDGMENTS I acknowledge support and guidance from my supervisors Dr. Scholastica Omondi, Dr. Duncan Ojwang and Dr. Lois Musikali in the course of writing the thesis. Their support and patience was of immense value. I highly acknowledge the University of Nairobi for giving me the opportunity to carry out my studies in the institution. iv ADEQUACY OF POST 2007 CONSTITUTIONAL MECHANISMS IN ADDRESSING ETHNIC CONFLICT IN PRESIDENTIAL ELECTIONS IN KENYA ABSTRACT This study was guided by four objectives : (i) examining the linkage between ethnic conflict and Presidential elections in Kenya; (ii) evaluating adequacy of post-2007 constitutional mechanisms in addressing ethnic conflict in presidential elections in Kenya; (iii) examining what lessons Kenya can draw from constitutional mechanisms of other select countries, and ( iv) making recommendations. Since 1992, cyclic ethnic conflict in presidential elections has caused deaths and loss of property. Prior to 2007, enforcement of criminal law was viewed to be the remedy. However, ethnic conflict in 2007 presidential elections led to the view that constitutional reform was the solution. In 2008 Kenya amended Constitution of Kenya of 1969 and applied consociationalism. New Constitution of 2010 dropped consociationalism and introduced devolution, nation-building measures and centripetalism. Despite these mechanisms, the problem persisted in 2013 and 2017 presidential elections hence this study. Literature on constitutional design for divided societies prescribe either accommodation (consociationalism and devolution ) or integration (centripetalism and nation-building) of ethnic groups into a state’s power structures. The main gap in this literature is failure to consider importance of electoral data in designing constitutional presciptions. This research took an explanatory and indepth approach unlike past studies that took comparative and descriptive methods. The methodology used was qualitative: interviewing key informants, experts and focus group discussions. By gathering data from the field and studying national vote electoral data from 1992 elections, it uncovered a theory that shows the higher the margin of votes between a winner and best loser in national votes in Kenya, the lower the chances of ethnic conflict. Ensuring a margin of about 18 per cent between the two main contestants constitutionally boosts chances of ethnic peace. Among other proposals, the study recommended that article 138 (4) of the Constitution of Kenya 2010 be reviewed to increase the margin of victory of a winner. The law used and analysed by this study was as at 1st February 2020. v LIST OF CASES Kenyan cases 1) Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy & 2 Others [2017] eKLR. 2) Commissioner for the Implementation of the Constitution v Attorney General & 2 others [2013] eKLR Civil Appeal 351 of 2012. 3) Community Advocacy and Awareness Trust & 8 Others V Attorney General Interested Party National Gender and Equality Commission & 5 Others [2012] eKLR. 4) Council of Governors & 3 others v Senate & 53 others [2015] eKLR. 5) Francis Gitau Parsimei & 2 Others v The National Alliance Party & 4 Others 6) IEBC v Maina Kiai & 4 Others [2017] eKLR. 7) Independent Electoral & Boundaries Commission (IEBC) v Maina Kiai, Khelef Khalifa, TiropKitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017] eKLR. 8) Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. 9) John Harun Mwau& 2 others v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR. 10) Judges &Magistrates Vetting Board & 2 Others v Centre for Human Rights & Democracy & 11 Others(supra) (2014)eKLR. 11) National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission [2017] eKLR. 12) Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another [2017] eKLR. 13) Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 4 others & Attorney General & another (Petition no.1 of 2017) e KLR. vi 14) Raila Odinga &5 Others v Independent Electoral and Boundaries Commission &3 Others eKLR [2013]. 15) Republic v Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya & 6 Others eKLR [2017]. 16) Republic v Kenya Revenue Authority Ex-Parte Stanley MomboAmuti [2018] eKLR. 17) Dr. Timothy M. Njoya and 6 others v Honourable Attorney General and Another[2004] eklr. 18) Speaker of the Senate & Another vs. The Hon. Attorney-General & Others [2013] eKLR. 19) Tom Luusa Munyasya & another Governor, Makueni County & another [2014] eKLR. 20) Virginia Edith Wambui Otieno v Joash Ochieng Ougo& Another eKLR [1987]. 21) In Re Matter of Zipporah Wambui Mathara KLR (2010). Foreign cases 1. Guyana 1) Attorney General of Guyana v. Cedric Richardson (2018) CCJ. 2. Nigeria 1) Attorney General of Abia State & 2 Others v Attorney General of the Federation and 33 Others ( Revenue Monitoring case) 2) Attorney General of Lagos State v Attorney General of the Federation &35 Others (Urban Planning case). 3) Attorney-General of Ondo State v Attorney-General of the Federation and 35 others (2002) 6 S.C. (Pt. I) 1. 3. United Kingdom 1) The case of R (Jackson) v Attorney General [2005] UKHL 56 . 2) Madzimbamuto v Lardner-Burke [1969] 1 AC 645: 4. South Africa 1) Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC). vii LIST OF LEGAL INSTRUMENTS 1) International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. 2) The African Charter on Human and Peoples Rights, 1981. 3) The Basic Education Act No.14 of 2013. 4) The Charter of the United Nations, 1948. 5) The Constitution of Kenya, 2010. 6) The Constitution of Guyana of 1980. 7) The Constitution of Nigeria of 1963. 8) The Constitution of Nigeria of 1979. 9) The Constitution of Nigeria of 1999. 10) The European Convention on Human Rights, 1950. 11) The Good Friday Agreement of 1998(United Kingdom). 12) The Government of Ireland Act of 1927(United Kingdom). 13) The Kenya Information and Communication Act of 1998. 14) The National Accord and Reconciliation Act no 4 of 2008. 15) The National Cohesion and Integration Act No 12 of 2008. 16) The National Accord and Reconciliation Act No. 4 of 2008. 17) The Repealed Constitution of Kenya of 1969. 18) The Rome Statute of the International Criminal Court, 1998. viii OPERATIONAL DEFINITION OF KEY TERMS 1) Centripetalism : - A set of legal rules that aim to achieve stability and peace in ethnically divided societies by enhancing political rewards for moderation. This is by adopting electoral rules that require winning candidates to seek cross-ethnic support. In Kenya, Article 138(4) of the Constitution of Kenya 2010 is an example of a centripetal rule. It indicates that, “A candidate shall be declared elected as President if the candidate receives (a) more than half of all the votes cast in the election; and (b) at least 25 per cent of the votes cast in each of more than half of the counties”. 2) Consociationalism: – A set of legal rules, usually established in states with major internal ethnic conflict, that aim to maintain stability and peace by co-opting into state’s power structures, elites of all major ethnic groups. In Kenya, The National Accord and Reconciliation Act of 2008 (Act no.4 of 2008), which established a Government of National Unity comprised of major elites from various ethnic groups in Kenya after 2007/08 ethnic conflict, is an example of a consociation law. 3) Ethnocracy: – A type of governance structure where the state is appropriated by an ethnic group(s) to cement its power and interests. 4) Immobilism : - A governance stalemate caused by resistance to change and or inertia by leaders and policy makers. 5) Welfarism : - Policies