D emo c r a c y : R u l e o f l aw, r e p r e s e n t a t i o n a n d p a r t i c i p a t i o n This leads to a second important lesson, namely that processes of political engineering through institutional or constitutional reform can only be achieved through a longterm strategy that addresses social as well as institutional change and enjoys the commitment of politicians and other key actors. The third key lesson to be learnt from the 2013 polls is that while Kenyans were generally happy to accept external support for a long-awaited programme of constitutional reform, many reacted negatively to interventions that seemed to favour one political candidate over another. In the wake of the 2008 election violence the International Criminal Court (ICC) had pressed charges against six people, including Uhuru Kenyatta (an ally of Kibaki at the time) and William Ruto (then an ally of Odinga). Largely as a result, Ruto supported Kenyatta’s candidacy in 2013. In the run-up to the polls a number of key international actors expressed their support of the ICC process and their formal policy of limiting contacts with ICC indictees. Such statements were interpreted as evidence of international meddling in support of Odinga. The Jubilee Alliance proved able to turn it to their advantage, presenting Kenyatta and Ruto as victims of an international conspiracy by ‘the West’. This successful public relations war against the ICC chimed with anti-neocolonial sentiments on the ground and helped the Jubilee Alliance to effectively mobilise their supporters. Kenyatta’s victory is thus evidence of the unintended, and perverse, consequences that well-intentioned interventions can have, especially when they are seen to cross the line of interfering with domestic politics. Peace versus justice? Awareness of the deep roots of the 2007/8 post-election violence, and partial reforms, led a wide range of actors – from members of the international community to local politicians, civil society activists and clergy – to emphasise the importance of maintaining peace in 2013. However, the emergent ‘peace narrative’ proved Janus-faced. On the one hand, it helped ensure that the election was Kenya’s most peaceful since a return to multi-party politics – an outcome that should not be underestimated given the high stakes involved and slim margin of Jubilee’s first round victory. On the other hand, a near-continuous emphasis on peace – together with the way that this usually well-intentioned message was used for political gain – also helped delegitimise dissent in ways that could have negative implications for Kenya’s longer-term peace and stability. Most importantly, the pervasiveness of this peace narrative helped to legitimise a range of repressive measures including an unconstitutional police ban on political meetings and demonstrations in the wake of the elections and then again at the time of the Supreme Court’s decision on the basis that they constituted a ‘threat to peace’. At the same time, the great premium placed on peace was invoked to defend the strategic location of security forces in CORD strongholds that, while understandable, no doubt intimidated many opposition supporters. A similar logic was also employed to justify the use of force to quell dissent when it occurred, with six confirmed fatal police shootings during demonstrations that followed the Supreme Court’s validation of the presidential election on 30 March. It is also possible that concern for national stability shaped the Supreme Court’s response to CORD’s election petition. This is certainly the perception of many opposition leaders and supporters, who believe that the decision to unanimously reject the appeal was motivated by political, not judicial, concerns. If the court did intend to convey an image of unity and minimise the prospects of political conflict it backfired because the initial cursory decision and the absence of a dissenting opinion left many CORD supporters feeling that their concerns were not treated seriously, and that a focus on peace and stability prevailed over ‘truth’ and ‘justice’. The Supreme Court’s ruling also has important implications for future elections. Most significantly, it seems likely that the burden of proof adopted and the limited time for losing parties to put together their case, will make it all but impossible for the court to reject the outcome of future presidential elections in the absence of a clear ‘smoking gun’. This is important because it raises questions about how losing candidates and their supporters, and the international community, would respond to more glaring and unacceptable irregularities in future elections. Will Odinga, or his successor, be willing to go to the Supreme Court knowing that the official results are most likely to be validated, or, as in 2007, would they instead opt to go out onto the streets in protest? Significantly, many CORD supporters appear to have ‘accepted’ the results of the 2013 election because of the importance placed on peace and the sense that Kenyatta was likely to win any run-off election. But this resignation in the face of defeat – by CORD politicians and their supporters – should not be read as proof of universal confidence in the political process. Instead, many Kenyans did not mobilise against the official result because they were afraid that taking their protests to the streets would trigger violence and found it difficult to challenge new institutions in which they had placed so much hope. This situation is unlikely to hold for future elections and so the potential for political unrest is likely to rise. In this regard it is particularly troubling that public opinion concerning the election is divided not only on political lines, but on regional and ethnic ones as well. As a result, the disputed 2013 election may be added to the list of grievances among communities on the socio-economic periphery who have never provided a president. The lesson for those involved in democracy support initiatives is two-fold: peace campaigns can bear fruit in the short-term, however, an emphasis on peace to the neglect Commonwealth Governance Handbook 2013/14 24
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