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Kenya’s Watershed Election: Implications for EU Policy – Carnegie Europe

European Democracy Hub

On August 9, 2022, Kenyans went to the polls for what was billed as the most competitive presidential election in their country’s history. After six days of tallying votes, Deputy President William Ruto was declared the president-elect, winning with 50.49 percent of the vote. Opposition leader Raila Odinga came in second with 48.85 percent.

The significance of this election transcends Kenya and the Horn of Africa. It has implications for the European Union as well. The EU is one of Kenya’s major trading partners and has supported its democratization process by backing civil society and key institutions such as the Independent Electoral and Boundaries Commission (IEBC) and the judiciary. The election is a step forward, but the EU will need to invest in a stronger partnership in the coming years in a country that it increasingly sees as an anchor state in the Horn of Africa.

Democratic Turning Point

The presidential election had to be decided by the Supreme Court after Odinga rejected the outcome. This came on the back of a statement issued by four IEBC commissioners in which they rejected their chairman’s declaration of the final results and suggested that the process of arriving at these was “opaque.”

Andrew Songa

Andrew Songa is the civil society secretariat coordinator for the Charter Project Africa at the European Partnership for Democracy (EPD).

Despite this division among the commissioners, the Supreme Court affirmed Ruto’s win and was satisfied that the conduct of the election and declaration of the results met the requirements of the constitution. It is laudable that the country remained calm and without major incidences of violence while the dispute was resolved by the court. This is in contrast to past electoral cycles, particularly in 2007 when the contested outcome resulted in unprecedented levels of violence.

The 2022 election is pivotal to Kenya’s future in various ways. First, it was a transitional one and marked the third time a sitting president handed over power to a successor after serving a two-term limit. Second, the leading contenders had dominated Kenya’s political landscape for over twenty years. It was Odinga’s fifth, and perhaps final, run for the presidency and Ruto had served as deputy president for the last ten years. It has been argued that the lack of new alternatives on the ballot caused voter apathy, especially among the youth, with the lowest voter turnout in fifteen years at 64.6 percent. Third, the election saw a shift in political alliances with former president Uhuru Kenyatta expressing support for Odinga rather than for his own deputy Ruto.

Lidet Tadesse Shiferaw

Lidet Tadesse Shiferaw is associate director of Peaceful Societies and Accountable Governance at the European Centre for Development Policy Management (ECDPM).

Kenyatta and Odinga forged a working partnership in 2018 as a way to close the chapter on the contentious aftermath of the 2017 presidential election, when the Supreme Court annulled the initial outcome and tensions rose after Odinga refused to participate in the rerun. This partnership, dubbed the Building Bridges Initiative, saw Kenyatta and Odinga attempt to amend the constitution, which was overruled by the courts. A key and contentious feature of their proposed amendments was to expand the executive to include the offices of prime minister and two deputy prime ministers. Ruto opposed the initiative, setting the stage for the formation of new political alliances and a high-stakes electoral contest. While a peaceful transition of power finally took place on September 13, the intervening period since Ruto was declared the winner was marked by tense relations with the exiting Kenyatta who only congratulated Ruto as his successor on the day before his inauguration.

This election also served as a key test for how far the country’s independent institutions—namely the IEBC and courts—have come and whether they could live up to the standards of enabling a free, fair, and credible contest as outlined in the Supreme Court decision that annulled the 2017 presidential election.

The EU observation mission, which was one of the more prominent international observer groups in Kenya, raised concerns with regard to the IEBC’s preparedness and procedural shortcomings. Despite allegations of political interference in the run-up to and the results phase of the election, the IEBC’s transparency and management of polling stations on Election Day and tallying has been lauded. In a marked improvement from previous elections, the results from polling stations were uploaded to a portal that was accessible to the general public. This allowed for parallel and independent tabulation by citizens and the media. Various civil society and citizen initiatives that undertook their own tabulation agreed with the result declared by the IEBC chairman.

However, the fact that four out of seven commissioners rejected the results declared by their chairman cannot be ignored. While it affirmed the electoral outcome in its decision, the Supreme Court did highlight governance issues within the IEBC as a cause for serious concern. This calls for a deep analysis of and reflection on the legal framework and procedures of the IEBC, possibly as a bipartisan and multi-stakeholder effort.

When it comes to the judiciary, the 2022 judgment of the Supreme Court builds on the legacy of its 2017 decision, which was a key turning point in affirming the judiciary as being an independent institution and as having the public’s confidence to resolve disputed presidential contests. The Supreme Court did not only annul the initial result of the 2017 election; its judgment also induced reforms that guided the current election, such as the IEBC making the results from polling stations easily available for public scrutiny.

The 2017 decision also shed light on the deficiencies of international election observer missions whose work focused mainly on Election Day and not the tallying and dispute-resolution phases. Taking lessons from this, this year election missions such as the one deployed by the EU embraced a more holistic approach to the electoral cycle and emphasized the importance of dispute resolution as part of assessing the credibility of the electoral process.

Once again, and as a mark of its independence, the 2022 decision saw the Supreme Court deliver an outcome that ran counter to the interests of the incumbent Kenyatta, who had come first in the annulled 2017 election and this year backed Odinga as his preferred successor. As the public continues to analyze the detailed version of the judgment from the court, one can anticipate from past experience that the court’s pronouncements on key features of the case will contribute further to streamlining and improving the electoral process. In a marked departure from Kenya’s experience of 2007, the growing faith in the judicial system has been instrumental in averting mass violence as a reaction to a disputed election outcome.

In simultaneous elections at other levels, another welcome development has been the rise in the number of women who successfully contested for various positions. Seven have been elected as governors in this year’s elections compared to three in 2017. Outside of the constitutionally mandated forty-seven women representative seats in the National Assembly, the elections saw twenty-nine women elected to constituency seats, an increase from twenty-three in 2017. A further three women were elected to the Senate. While not meeting the threshold of the constitution’s gender principle, which stipulates that no gender should occupy more than two-thirds of any elective body, the 2022 results indicate that the affirmative measures instituted to enhance women’s representation are having a positive impact. This should be supported and reinforced by all stakeholders.

Regional Significance

Kenya’s presidential election will have a considerable impact on relations with its neighbors and international partners like the EU.

Kenya is the second-largest economy in the Horn of Africa and the largest in East Africa. It has a long history of economic liberalization, boasts one of the fastest-growing economies in Africa, and has an increasingly digitally connected population. Beyond its economic significance, Kenya is a key regional peace and security actor in the Horn of Africa. Together with Ethiopia, it was at the forefront of facilitating the peace process in Somalia in the early 2000s, which ushered in the transitional government in 2004. Kenya also contributes troops to the African Union–led force in Somalia, which together with Somalia’s national forces, provides security to the capital Mogadishu and to major towns.

In recognition of the country’s strategic importance, in June 2021, the EU launched a Strategic Dialogue with Kenya covering peace and security, trade and investment, and sustainable development. This facilitates regular high-level political and diplomatic exchanges between EU and Kenyan officials and represents a significant advance in EU’s partnership with Kenya.

The EU is a significant trading partner for Kenya. Around 21.1 percent of the country’s exports is to the EU. While Kenya’s share of EU imports is tiny (between 0.016 and 0.019 percent between 2015 and 2019), Kenya’s economic significance in the East African Community (EAC) enhances its strategic value. In addition to its economic and political leverage in this grouping, Kenya is the only country in the EAC to have signed and ratified an Economic Partnership Agreement (EPA) with the EU.

EPAs are trade agreements the EU proposed to eligible African Caribbean and Pacific countries. Those countries that ratify the agreement get an open and duty-free access to the EU market while they agree to open up 80 percent of their market to the EU after ten years. EPAs are hotly debated and many African states have been rather skeptical, with only fourteen having started to implement them. In the EAC, Burundi, Rwanda, Tanzania, and Uganda have engaged in negotiations with the EU on EPAs. Kenya’s EPA is strategically significant in this sense.

Kenya’s stability is therefore vital for East Africa and the Horn of Africa. Previous experiences have also shown that election-related unrest in the country has been disruptive to critical supply chains in the region with adverse effects for neighbors such as Uganda and South Sudan. It is for these reasons that Kenya’s partners and neighbors were keen on a peaceful transition of power that would affirm the country’s democratic credentials and provide stability in a region confronted with significant security challenges, including the war in Ethiopia, for which a political solution is yet to be found.

The Horn of Africa is one of the most volatile and dynamic regions on the continent. It is strategically significant for the EU owing to migration and maritime security. The Red Sea is one of the busiest maritime corridors in the world and it is a vital shipping route for Europe’s trade with Asia.

Ethiopia and Kenya are two of the biggest economies in the region. In the past two decades, they have been instrumental in regional counterterrorism efforts and in maintaining regional peace and security. But Ethiopia has been embroiled in a troublesome political transition since 2018. It is just emerging from a major armed conflict that started in November 2020 in its north, and there is a chance of reescalation. Ethiopia also continues to suffer various violent conflicts in its western regions.

Ethiopia’s preoccupation with its domestic affairs has made Kenya an even more valuable regional interlocutor. The two countries have maintained a stable relationship despite changing governments and political regimes. Kenyatta consistently advocated for a political solution to the war in Ethiopia, and Kenya also played an intermediary role between the West and Ethiopia at the height of the civil war. Moreover, the Tigray People’s Liberation Front (TPLF)—one of the main parties to the conflict in Ethiopia—has expressed its preference for a Kenya-facilitated negotiation over the ongoing African Union–led process that aims to broker peace between the TPLF and Ethiopia’s government. Ruto has now appointed Kenyatta as his peace envoy for the Great Lakes Region and the Horn of Africa, which would maintain the former president’s visible role as mediator in the Ethiopian and other conflicts in the region.

As Ethiopia’s relations with the EU and the United States are still recovering from the fallout from the war, Kenya looks like an attractive linchpin of security in the region. Its current membership in the United Nations Security Council further accentuates this appeal.

Stepping Up Democracy Support

A peaceful and democratic transition in Kenya is therefore important not only to the country but also to East Africa and the Horn of Africa, which stand to benefit from its political stability and economic growth. In addition, Kenya’s electoral process and its nascent but encouraging democratic progress offer lessons for other countries in the region. The improved diligence of the IEBC, the transparency of its tallying practices, and the increasing trust in the judiciary are particularly noteworthy. Also noteworthy is the discipline and restraint ordinary citizens have shown during the campaign, voting, and postelection phases.

Even as the results of the presidential election were contested, the fact that Odinga and his supporters relied on legal channels to seek redress clearly shows that Kenya has come a long way. That said, the progress made in this election should not distract from the road ahead. While the instances of violence have been comparatively low, notable incidences such as the murder of an IEBC official and violent confrontations at the national tallying center are indelible stains on this election. A comprehensive audit of the IEBC’s performance by various stakeholders and recommendations for further reforms to aspects of the electoral process are bound to follow.

Women’s political representation also still leaves much to be desired, while corruption and economic inequality continue to undermine Kenya’s development and the well-being of its citizens. While the European Court of Auditors found that the EU’s support to democracy in Kenya between 2014 and 2020 did not have sufficient focus on anticorruption, support to democratic governance and transparent and accountable public institutions remain key elements of the EU’s engagement for the 2022–2027 period. For example, the EU has contributed €5 million to a United Nations Development Programme basket fund that was designed to support the electoral process, supported domestic observation of the election, and is funding nonpartisan support to improve inclusion in the political party system.

The aforementioned challenges will need to be addressed diligently if the political gains registered so far are to have a tangible bearing on ordinary Kenyans. Similarly, maintaining Kenya’s civic space, the independence of the country’s institutions, and ensuring public participation in governance processes will remain essential to fostering inclusion and national cohesion.

There are several areas where EU support can make a difference. First, it should engage Ruto on a dialogue around support for the justice sector. This is a fertile area as Ruto has pledged to increase the judiciary’s budgetary allocations and committed to granting the National Police Service financial autonomy. Second, the EU should support programs aimed at enhancing the capacities of aspiring women politicians and strengthening the frameworks of political parties toward realizing the constitution’s two-thirds gender rule. Third, on civic space and in appreciation of the potential presented by Kenya’s digital connectivity, the EU should direct some of its support towards civil society’s innovative use of civic technology that is aimed at enhancing youth participation in governance as well as in enhancing government transparency and combating corruption.

Continued EU support for strengthening independent institutions and expanding civic space alongside the engagements it has outlined on trade, peace, and security within the ongoing Strategic Dialogue make sense in the current climate. But ultimately, the EU’s partnership with Kenya should be based on the country’s self-defined path to democracy. As with democracies across the world, that path is likely to feature significant bumps in the coming years and the EU would be wise to use its full diplomatic, trade, and financial clout to support Kenya’s democratic journey.

Andrew Songa is the civil society secretariat coordinator for the Charter Project Africa at the European Partnership for Democracy (EPD).

Lidet Tadesse Shiferaw is associate director of Peaceful Societies and Accountable Governance at the European Centre for Development Policy Management (ECDPM).

This article is part of the European Democracy Hub initiative run by Carnegie Europe and the European Partnership for Democracy.

This document was produced with the financial assistance of the European Union. The views expressed herein are the sole responsibility of the authors and can in no way be taken to reflect the official opinion of the European Union.

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