A Ray of Hope

Two important things have happened in the last two days since my last post.


Ineffective Opposition Mass Protest
First, the Opposition's attempts at organized mass protest in the capital city of Nairobi with the aim of bringing down the incumbent Kibaki administration have been largely thwarted by the effectiveness of a special unit of Kenya's law enforcement known as the General Service Unit (GSU). These are paramilitary riot control shock troops but they are also a SWAT team. Anything the regular cops can't handle the GSU is called in, hence the name General Service Unit -- they are up for anything. The GSU has kept the city center free of protesters, both violent e.g. local street thugs, and peaceful e.g. one of my sisters. The inability for the opposition to force a collapse of Mr. Kibaki's administration through mass protest reduces their options to ascend to power and puts pressure on the opposition to compromise.


Lack of recognition of newly "elected" Kenyan President
Second, the vast majority of the world has refused to recognize the validity of the presidential vote tally due to well-documented "irregularities" (outlined in my first post herebelow). The EU formally dismissed the presidential election results as lacking credibility and called for an international audit. The US retracted an initial congratulatory message to Mr. Kibaki. The UK expressed deep concern about the "irregularities" associated with the tallying of the Presidential vote count and also has not congratulated Mr. Kibaki. France has been the most outspoken and has outright rejected the presidential election results as rigged. The Canadian ambassador ahs been seen publically with the opposition leader. Many other countries have remained silent. This lack of recognition by important countries in the world reduces the options of the Kibaki administration to hold on to power and puts pressure on president Kibaki to compromise.



A situation ripe for both sides to compromise.

Because of pressure from the international community at large, and from international dignitaries like Archbishop Desmond Tutu, both sides have backed down from their initial hard line positions. The opposition initially insisted that President Kibaki must first resign before any dialogue could occur now they are open to the formation of a coalition government without a resignation. Mr. Kibaki initially insisted that the elections were free and fair and that no recount or re-run of the election would happen. Now he too is open to a coalition government as well as a re-run if the Kenya courts demand it.


Still far apart
This is definitely progress! However, the two sides still remain very far apart. The Opposition insists that any coalition government would be only a caretaker government whose sole purpose would be to organize an new Presidential election within 3 months, which, they are sure they will win. The administration, naturally rejects this because to accept this would be to tacitly admit that the current results are fraudulent. They are NOT going to do this. They need the opposition and the international community to accept the validity of the currently contested election results. This is their red-line position.


No more violence
For it's part, the administration demands that no coalition government will be discussed until the violence stops and there is law and order which is, on its face, a reasonable demand. However, violence can just as easily be fomented by the government as it can by the disgruntled opposition. Still, it is also in the administrations interests to have violence cease because it needs to be seen as being in control of the country.

Electoral challenge in Kenya's courts
The administration also insists that any change in the officially announced results MUST go through Kenya's Constitutional Processes. Again, this, at first blush, is wholly reasonable. However, the constitutional processes that now remain for challenging the election results can only go through Kenya's courts because a recount, by law, can only happen within 48 hours of the announcement. So the only constitutional and legal remedies left to challenge this fraudulent election are the Kenyan courts which are notoriously corrupt and known to be beholden to the government.


Effect on Opposition on court challenge
If the opposition were to follow this path and the courts verified the current result, then legally and constitutionally the opposition would be in a double bind because: 1) the duly constituted (but totally corrupt) Electoral Commission of Kenya initially verified them making them legal; and 2) The Supreme Court (again corrupt) added its august imprimatur on the result. If this happens, there are no more legal options for the opposition and, God forbid, violence and civil war will be the only way to force the government from power. This is the trap the opposition fears it will be led into if it accepts to contest the result in Kenya's courts. This is the opposition's red-line position.



A possible way forward?
In my view, because both sides have red-line positions that seem intractable (Govt: you must accept our authority or go to court to contest it. Opposition: We cannot under any circumstances trust the courts to be fair), BUT both sides have also stated that they are willing to discuss forming a coalition government. Then this cold-blooded political deal seems the only way out of this impasse.


Power of the President
The biggest issue would be what President Kibaki's administration could offer the opposition. This is the biggest issue because, in Kenya, the President is both the head of state and head of government, and has powers to both appoint and REMOVE without cause the highest ranking executive officers (cabinet members, police cheifs etc), military officers (captains, generals etc.), AND judicial officers (High Court justices INCLUDING the Chief Justice) throughout the land WITHOUT any legislative or other review. This makes the President of Kenya basically Superman, or stated more politically, a King! Stated simply, the entire Executive branch, the entire Armed Forces and the entire Judiciary serve at the President's pleasure and Parliament has NO say in who gets to serve and who does not.



Reducing Presidential Powers: A couple of Suggestions
First, perhaps, the post of a Prime Minister could created with, for instance, the power to veto the President's power to remove without cause certain executive, military and judicial officials. What level of unaccountable Presidential appointment and removal power could be a point of negotiation that might be acceptable to both sides.


Second, if the post of a Prime Minister is not possible, maybe, then, the appointment of very high ranking executive, military and judicial officials could be made to require legislative approval of a certain threshold -- perhaps a simple majority. If these two changes ALONE were implemented in Kenya's constitution, they would make a REVOLUTIONARY difference in Kenyan politics.


An Opportunity for the Opposition?
This, perhaps, is what the Opposition should now focus on fighting for. I say this for two reasons: 1) The diminution of Presidential power would mean that obtaining and retaining the Kenyan Presidency would cease to be the zero sum game that it currently is. The stakes associated with being President of Kenya would diminish to a level congruous with other stable democracies. This concentration of an inordinate amount of power in the President's Office is the single most damaging, DIVISIVE and destructive condition that Kenyan political, civil and economic life suffers from; 2) This reduction in Presidential power is also a clearly stated and principal raison d'etre of the opposition itself. This, together with the devolving of power from a nearly omnipotent central government in Nairobi to the different provinces are the clearly stated ultimate goals of the opposition. These are the promises the opposition ran on and with which they won 60% of Kenya's legislative seats, and why 80% of President Kibaki's cabinet was voted out of office.



If the opposition can force these constitutional changes, or something approximating a meangingful dimunition of Presidential power in Kenya's Constitution, then perhaps the senseless violence; the horrific rapes and vicious murders; the heartbreaking and unnecessary loss of life; the massive displacement of Kenyan citizens; and even the potential but, hopefully, temporary loss of faith in democracy and its processes would be worth it.



The stage is set for Mr. Kibaki and Mr. Odinga. May God give them the wisdom, compassion, and HUMILITY to make a compromise that benefits all Kenyans.