Edited by: Walter O. Oyugi Peter Wanyande C. Odhiambo-Mbai

Politics of Transition BOOK 8/26/03 1:34 PM Page 1

Edited by: Walter O. Oyugi Peter Wanyande C. Odhiambo-Mbai

Politics of Transition BOOK 8/26/03 1:34 PM Page 2

Published 2003 by Heinrich B?ll Foundation Regional Office for East and Horn Africa PO Box 10799-00100 GPO Nairobi Kenya

Phone: (+254 020) 3744227 Fax: (+254 020) 3749132 Email: nairobi@

?2003 Department of Political Science and Public Administration, University of Nairobi

The views and interpretations expressed in this book are entirely those of the writers and should not be attributed in any manner to the Heinrich B?ll Foundation or the Department of Political Science and Public Administration, University of Nairobi.

ISBN 9966-9772-3-6

Publishing and Production Consultants Bookprint Creative Services Limited

Printed in Kenya by English Press Limited

CONTENTS

Preface

5

Introduction

Walter O. Oyugi

7

1 The Political Economy of Transition in Kenya

Patrick O. Asingo

15

2 The Rise and Fall of The Autocratic State in Kenya

C. Odhiambo-Mbai

51

3 Limitations Of Political Liberalization: Parties and

Electoral Politics in Kenya, 1992-2002

Karuti Kanyinga

96

4 The Politics Of Alliance Building In Kenya:

The Search For Opposition Unity

Peter Wanyande

128

5 The Centrality of Ethnicity in Kenya's Political Transition

Fred Jonyo

155

6 Civil Society in The Kenyan Political Transition: 1992-2002

Maria Nzomo

180

7 Gender Inclusion In Transition Politics: A Review

and Critique Of Women's Engagement

Winnie Mitullah

212

8 Human Rights Ngos and Political Transition:

Guatemalan Lessons For Kenya

Dr. ScottTurner

236

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9 Managing Elections In Kenya

H. J. Nyamu

265

10 The Challenges To And Efficacy Of Election Monitoring

Gichira Kibara

280

11 Transition And The Politics of Constitution Making:

A Comparative Study Of Uganda, South Africa And Kenya

Njuguna Ng'ethe and M. Katumanga

303

12 The Politics Of Transition In Kenya, 1992-2003: Democratic

Consolidation Or Deconsolidation?

Walter O. Oyugi

345

13 References

382

Index

405

4

PREFACE

T his book is the product of a collaborative effort between the Department of Political Science and Public Administration, University of Nairobi and the Heinrich B?ll Foundation, Kenya Office. The collaboration began in September 2002 following a request by the Department to the Foundation for support to hold a workshop on the Politics of Transition in Kenya. Kenya was in the process of holding its third multi-party elections following the re-introduction of multi-party politics in 1991. The elections provided Kenyans with the first real opportunity to replace a serving president with a new one through the ballot, because the then president had served his second and last five-year term in accordance with the constitution. The elections also provided prospects for Kenya National African Union (KANU), which had ruled the country since independence in 1963 to relinquish power to the opposition party, National Rainbow Coalition (NARC). Scholars of political science at the University of Nairobi were eager to debate the challenges and prospects of this transition.

In accepting to support the workshop, the Foundation also offered to support the publication of the proceedings of the workshop in a bookform to serve as a permanent record to the scholars' academic contribution to the understanding of transition politics. The actual research was conducted by social scientists--mainly political scientists--from the Department of Political Science and Public Administration, University of Nairobi and two practitioners, one from the Electoral Commission of Kenya and the other from the Centre for Governance and Democracy, a local NGO based in Nairobi.

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The papers were assigned to discussants who made detailed comments. These and the discussions at the workshop were of great benefit to the authors in revising and updating their contributions after the elections. The volume contains selected papers only.

The book covers a wide array of topics and issues relevant to an understanding and appreciation of transition politics in Kenya. The topics range from colonial to the post-colonial period but with a focus on the post-1992 period. Details of the topics and issues are given in the introduction of the book.

The editors wish to thank Heinrich B?ll Foundation for supporting the workshop and the publication of this book, a book that will go a long way in shedding insights into the politics of transition in this country. We also wish to thank the two secretaries of the Department of Political Science and Public Administration, namely Mrs. Cecilia Kamau and Mary Gatheca as well as Jimmy O. Ochieng (a research assistant to one of the editors) for the secretarial and the logistic support they gave to the project. The final responsibility, as always, is that of the individual authors.

Editors

24th June 2003

Nairobi

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POLITICS OF TRANSITION

INTRODUCTION

Walter O. Oyugi

T he title of the book--The Politics ofTransition in Kenya: From KANU to NARC--is suggestive of its contents. In actuality, however, the book covers much more than just the transition from KANU/Moi to NARC/Kibaki. The point of departure in the volume is a focus on the politics of transition in a much wider sense: the book grapples with the question of change over the whole range of post-independence politics in Kenya, as well as touching on the transition from colonial rule to self-rule. Transition as used in this book refers to a process leading to change from one regime to another--a change which involves leadership change at the top. In this sense therefore, we can refer to transition within the context of a given political party if the change involves leadership change at the top. The concept also applies in a situation where the process leads to a change not only in the leadership at the top but also in the political party that controls state power. Therefore, the essays in this volume focus mainly on transition processes which are followed by elections in which there is regime change. Although there were four elections in which Moi was returned as president, we do not regard them as transition elections.

With this conception of transition in mind, the material presented in this volume covers both colonial and post-independence transitions. Three transitions are therefore identified, namely, the transition from colonialism to independence, and the subsequent two transitions since then, that is, the transition from Kenyatta to Moi and from Moi to Kibaki, the latter involving also the change from KANU to NARC.

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A study of politics of transition in any country usually confronts the problem of duplication inherent in the cross cutting nature of the issues that have to be raised in addressing the subject. This problem becomes apparent in this study in that a number of chapters, though addressing specific issues in a more sustained manner, also end up touching on some of the issues addressed in other chapters. In a way, this enriches the book?since differing perspectives emerge on the same issues.

The coverage of transition politics in the first chapter, by Asingo, is broad and starts off by examining the transition from colonialism to independence by highlighting the constitutional engineering undertaken by the British government from the early 1950s, as well as the economic and social institutions which were similarly manipulated by the British government with the sole purpose of leaving behind a system that would later serve the interest of the departing colonial power. The central thesis which ties the analysis of the two subsequent transitions i.e., from Kenyatta to Moi and from Moi to Kibaki, is that the politics of intrigue and manipulation played a major role. This was to be expected in a situation where autocratic personal rule, in the absence of institutionalised governance, was the norm. At the same time the socio-political dynamics within the multi-party system (especially since 1992) are addressed, and are seen to have accounted both for the failure of the opposition parties to dislodge KANU from power in the two multi-party elections and the subsequent developments in the terminal years of the Moi regime, which enabled the opposition to get together, and thereby remove Moi from power giving way to the NARC regime. The analysis of the Kenyan experience is cast within the wider African context.

The transition theme is taken a step further in the second chapter where Odhiambo-Mbai builds his argument around two concepts, namely, autocracy and personal rule. The chapter traces the genesis of autocracy not only in Kenya but also in Africa. And in the case of Kenya, the analysis presents the link between autocracy and the emergence of a personal rule regime and shows how the two orientations individually and collectively became a stumbling block to any efforts at political liberalisation, such that even after the resurrection of multi-partyism, what emerged

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was what the author calls a multi-party autocratic state under Moi. In the rest of the chapter which constitutes more than a half of the chapter, a presentation of the political developments which occurred in the run-up to the 2002 elections is made, and the circumstances leading to opposition unity and the resultant defeat of KANU are explained. The essay ends by addressing the emergent disharmony within NARC and wonders whether, indeed, autocratic tendencies are not already creeping into the NARC regime.

The theme is further explored in chapter three, by Kanyinga, where recent political events are discussed, including political alliance making and related transition experiences against the perspectives of neo-liberal political ideology. The chapter demonstrates that a neo-liberal political perspective is inadequate for illuminating and lending understanding of the Kenyan political dynamics. However, the central focus of the analysis is on the factors which acted negatively against the establishment of a liberal democratic regime. The chapter addresses a central issue which is also the subject of chapter five, namely, the centrality of ethnicity in political formations and contestations during the Kenyatta and Moi regimes, and argues that ethnic ideology acted against the construction of a liberal democratic society by playing a negative role in the efforts at opposition unity between 1992-2002. The author decries the fact that the coming together of the major opposition parties under NARC was only possible because of the perception of the cooperating parties that their ethnic interests would best be served under the umbrella of NARC. Thus, the writer avers, the reproduction of ethnic divisions in the political arena has continued to inform the practice of politics in the country.

A theme also addressed in these essays is that of alliance building in Kenyan politics, which is the subject of chapter four, by Wanyande. The analysis is anchored on what the writer refers to as the objectives and methods of alliance building. The discussion is given a historical underpinning: it begins with the experience of KANU/KADU merger in 1964, the first alliance since independence. After some sustained analysis, the author identifies ethnicity and personalisation of political parties as the two most important factors that negatively influence efforts at

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alliance formations by political parties. These are discussed against the backdrop of the efforts at alliance formation by opposition parties between 1992-2002. The circumstances under which alliance formation became possible in 2002 are discussed and the essay ends by wondering about what the simmering division within NARC portends for the future: what are the implications for such divisions for the achievement of the coalition's declared development goals and objectives?

If there is a theme which cuts across most of the chapters in the volume, it is ethnicity as a factor influencing political behaviour in Kenya. This is not an exclusively Kenyan problem: ethnicity permeates the socio-political fabric of most of the polities of the developing countries. This is not to say that it is not a problem in the relatively more developed countries, if the recent experience in the states formerly under the Soviet empire is anything to go by. Indeed, the problem spares no part of the world, for even in Western Europe, there are widely reported cases of ethnic tensions and conflicts, as for example, the case of Basque separatists in Northern Spain. Another case in point is the Flemish `crisis' in Belgium. And of course in the United States, every city has corners which are associated with specific ethnic minorities such as the Mexicans, Italians, Irish, Polish, Indians, etc.

The pervasiveness of the problem globally notwithstanding, the situation in Africa remains one of the most serious in the world. To enlighten the reader about a specific situation, chapter five, by Jonyo, addresses the problem within the Kenyan context by pointing out that political competition in the country continues to be shaped and driven largely by ethnic interests and that political parties themselves are often seen as fronts for ethnic/regional interests. It is in this context that the author dismisses the NARC alliance as being in practice an alliance of ethnic groups, and ends on a note which is likely to generate some debate, namely that the struggle for the Moi succession was de-ethnicised when both NARC and KANU fielded presidential candidates from the same ethnic group!

Three chapters in the study address the role of non-state actors in the struggle for political and economic liberalisation in Kenya. The concept of non-state actors includes Civil Society Organisations (CSOs) such as

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Non-Government Organisations (NGOs), Community-Based Organisations (CBOs) and other similar formations. Although the analysis of political liberalisation in Kenya has tended to focus on the role of opposition political parties, in practice though, the role which non-state actors have played has been largely responsible for winning the political space that the opposition can now claim to control. It is true that individual opposition politicians like Jaramogi Oginga Odinga and the `old' George Anyona set the stage for a more direct confrontation with the state over the resurrection of multi-partyism as exemplified in their efforts to launch the Kenya Socialist Party, a move which precipitated the enactment of a legislation to make Kenya a de jure one-party state in 1982. And the subsequent confrontations were mainly led by the clergy especially from the late 1980s following the introduction of queue voting in 1986 to which they were strongly opposed on moral and political grounds. Thereafter, however, it would be the religious-based NGOs in combination with other Civil Society Organisations (CSOs) that would keep the fire burning before the politicians resurfaced again in the early 1990s, a development which would bring the politicians and other nonstate actors together in a combined effort to launch an assault on the authoritarian regime. This important role which has been played by the non-state actors is captured especially in chapters six and seven.

In chapter six, Nzomo starts off by defining the term civil society and points out the fact that it is a mirror of the Kenyan society (with all its cleavages e.g. class and ethnicity) and that, therefore, it should not be idealised as the panacea to socio-economic or political problems. The author then proceeds to present an account of the development and contribution of these organisations since before independence. From there the chapter discusses the specific roles played by Kenyan civil society organisations during the transition period such as agitation for multiparty democracy, constitutional reforms, human rights and gender equity, before moving on to focus on the present role these organisations are playing in the current constitution making process.

Related to this chapter is chapter seven, by Mitullah, which focuses on the issue of gender inclusion in the transition. It should be pointed out here that the gender agenda has been mainly pushed by women civil soci-

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ety organisations. The chapter highlights the under-representation of women in key sectors of political leadership and the economy but ends in an appreciative note by highlighting the gains which women have made in the recent past and especially under the present NARC regime.

Another chapter which addresses this subject (i.e. the role of civil society) is chapter eight. On the main, the chapter is focussed on the study of the role of civil society in the liberalisation of a hitherto authoritarian regime in Latin America--Guatemala. After making a presentation of the experience of that country, Turner draws comparative lessons of experience which are applicable to the Kenyan situation. The Guatemalan case as presented here demonstrates what concerted action by civil society organisations can achieve even under difficult circumstances.

The political transitions that are analysed in this volume have all been preceded by contested elections, except the transition from Kenyatta to Moi. Indeed, the management and conduct of elections has direct bearing on whether the choices that the electors make are made under free and fair contestations and, therefore, whether or not they are reflective of the wishes of the voters. Historically, elections in Kenya were relatively free and fair during the colonial period for those who were given the right to vote. But this was never to be the case after independence. The first elections contested between an opposition party and the ruling party in 1966 were characterised by massive irregularities both before and on the polling day (Mueller 1984; Gertzel 1970). And between 1969-1991 all the elections held were characterised by similar problems as the ruling and only political party, KANU, meddled in the choice of candidates as well as in the conduct of elections; which is why in the post-multi-party era, the management and conduct of elections has been a contested issue with the political opposition and civil society organisations calling for changes in the electoral law and the management thereof.

The lessons which have been learnt in the management and conduct of elections in the multi-party era are discussed in chapter nine and ten. In chapter nine, Nyamu discusses the role of the state Electoral Commission, while chapter ten, by Kibara, discusses the experience with monitoring of elections in the country. Both chapters are written by

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practitioners with first hand experience in the respective subject areas. Chapter nine presents a bold critique of the performance of the commission at different stages in its evolution while noting the relative improvements in performance which have taken place in the recent elections especially in the preparation of the 2002 elections.

Chapter ten raises some fundamental questions regarding election monitoring. The two key questions raised are: does election monitoring add any value to the electoral process? Can it prevent malpractices? The analysis in the chapter focuses on constraints to free and fair elections in Kenya and the challenges facing election monitoring before turning to discuss the experience in Kenya with election monitoring. It ends by making suggestions about how the monitoring exercise can be improved.

The last but one chapter, on the politics of constitution making, is a comparative analysis of the experiences of Kenya, South Africa and Uganda in this regard. Whereas the constitution-making exercises in South Africa and Uganda were successfully accomplished, in Kenya the process was still on-going when the chapter was submitted. Nonetheless, it raises a number of issues of a comparative nature. First and foremost, the authors, Katumanga and Ng'ethe, draw attention to the different historical and socio-political circumstances under which the processes took place in the three countries, which the authors argue, do to a large extent explain the outcome of the South African and the Ugandan constitution making processes. With regard to the Kenyan case the authors discuss the history and the politics of constitution making, ending with a focus on what was going on at the National Constitution Conference which was at the time of writing, debating the Draft Bill of the Constitution of Kenya Review Commission, which aimed to repeal the existing constitution of Kenya. In the case of Kenya, the authors' conclusion is that the way forward is fraught with uncertainty as clearly indicated by the disputes which have emerged on a number of key provisions in the Draft Bill.

So far all the papers in this volume have been concerned with analysing the past and the present and presenting the factors which have impacted or are impacting positively or negatively on the efforts to open up the

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political space for meaningful contestation with a view to achieving at least some minimalist democracy. The last chapter in this volume, by Oyugi, while also addressing some of the issues raised in the foregoing chapters, goes a little further by identifying the major changes which have been introduced with a view to opening up the political space, and assesses the extent to which the changes so far made have been institutionalised, internalised and consolidated. The chapter does so while taking cognisance of the controversy surrounding the utility of the concept of consolidation or the analytical pertinence of the concept. The basic assumption in the analysis is that without consolidation of the little gains that have been made since the resurrection of multi-partyism, there is a great risk that factors of de-consolidation and `rollback' can creep in to put the clock back. Having expressed these fears, the author nonetheless observes that with regard to the resurrection of multi-partyism, there seems to be enough evidence to suggest that it is unlikely to be threatened at least in consideration of the circumstances of the moment. In conclusion, the author examines the performance of the NARC regime during its first five months in office and there from attempts to sketch the scenario for the future.

Thus all in all, the essays in this volume present to the reader the up-todate situation in the Kenyan democratisation front and make suggestions and/or develop scenarios for what the future portends for the democratisation project.

R E F E R E N C ES

Gertzel, C., (1970) The Politics of Independent Ken.yaNairobi: East African Publishing House.

Mueller, S.D., (1984) "Government and Opposition in Kenya", in Journal of Modern African Studies,Vol. 22, No. 3, pp. 399-427.

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1

THE POLITICAL ECONOMY OF TRANSITION IN KENYA

Patrick O. Asingo

I N T RO D U CT I O N

F or the first time in Kenya's rich post-colonial history, the country faced an election in which the incumbent president was barred by the constitution from seeking re-election. The president identified his preferred heir, pushed him beyond the party nomination stage at the expense of a split in the ruling party, and seemed determined to see him triumph in the general elections, at whatever cost. The opposition too finally put its act together, formed an umbrella opposition body and named a joint presidential candidate. These developments set the stage for one of the most remarkable presidential contests in Kenya's histor y. In the end, the ruling party's 39 year hold on power was rudely brought to a halt by the joint opposition common front, National Rainbow Coalition (NARC) which won the elections convincingly.

Against this background, this chapter attempts to analyse the impact of the transition on the net trade off between political and economic issues. The underlying assumption is that as an emergent democracy undergoing a poorly managed but crucial political transition, economic prudence is likely to have been sacrificed at the altar of political expediency during the transition period. Indeed, as the curtain slowly fell on the Nyayo era, political parochialism conveniently overshadowed rectitude in economic management.

The chapter is divided into two parts. The first part provides a cursory

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