The country is not agreed on the impact or significance of the ceremony. For Jubilee supporters, the swearing-in was simply an affront to a legally elected and God-appointed president. For moderates who are keen to take neither side, the swearing in was simply theatrics, and the absence of the major NASA principals, including Kalonzo Musyoka who was supposed to be Odinga’s deputy, is proof that it was a weak move by a fractured coalition. For NASA supporters, it was a validation they needed after humiliation from an uncredible election and from what they consider an illegitimate Muigai presidency.
But for all the idiosyncrasies in the ceremony, I consider the swearing-in to achieved one major element: a challenge to the Jubilee tactic of using fait accomplis for governance.
Fait accompli as a tactic
“Fait accompli" is a French term that refers to a deed that is already done. According to the dictionary, fait accompli refers to "a thing that has already happened or been decided before those affected hear about it, leaving them with no option but to accept it.”
Whether “fait accompli” is used in diplomacy or even in business, there is consensus that faits accomplis are designed to avoid discussion and negotiation that might modify, or even halt, a certain action that the “challenger” or “aggressor” desperately wants. This resistance to discussion and consultation necessarily renders fait accompli irredeemably anti-democratic. Accepting a fait accompli is therefore not an option if Kenya is to remain a republic.
Another result of faits accomplis, besides disenfranchising citizens, is a country whose institutions run on bullying, mediocrity and cycles of dysfunction. Faits accomplis have become the default mode of governance in our institutions whose logic remains extremely colonial (about control) rather than democratic (serving the people). Politicians and managements make decisions without consulting professionals and therefore without considering the technical issues involved. When the public complains about the inevitably faulty services, the managements hire PR firms and participate in talk-to-the-people chats, in which CEOs promise to wave a stick and discipline the very professionals whom they should have consulted in the first place.
The case of education is a classic example. We have a new school system based on a racist logic, and by some indications, which is likely to have been designed to suit corporate interests of the tech industry and publishers. Because it was poorly thought out but was implemented anyway, the next five years will see teachers confused and fumbling through the system as the government threatens them with the stick of performance management.
In the meantime, the government will cherry pick the extremely few stories of teachers who manage to wade through the confusion with relative success, and celebrate those teachers as evidence that the entire system is successful. However, after a decade, the country will witness mass failures and the destinies of whole generations will have been damaged. And the then president will replace the system with yet another poorly thought out system. And the cycle starts again.
Fifty-four years after independence, we cannot still be winging it through nationhood, mediocrity and dysfunctional institutions, simply because the die is already cast. Simply accepting and moving on, which is the Jubilee term for fait accompli, has not put an end to bad decisions. Instead, Kenya has had to continue wading through mediocrity because Jubilee has adopted fait accompli as a governance approach. And this is one context in which to read the Raila Odinga swearing-in.
Fait accompli and general elections
The disputed elections of 2007 was the most prominent and deadly instance of fait accompli that has traumatized our nation. Just when Raila Odinga’s ODM seemed to be winning, the then Electoral Commission of Kenya introduced a deux-ex-machina vote that suddenly increased Kibaki’s tally. The win was hurriedly followed by a swearing in ceremony at State House.
Once the deal was done, it was up to Raila and his cronies to negotiate from a weaker position. The international community sent emissaries to force a coalition, rather than watch as the nation fell apart. But the real grass that suffered was the people of Kenya, the thousands who were killed and raped, the hundreds of thousands displaced, and the millions left with a trauma that remains very raw. From a political standpoint, Kibaki took a bargain with the lives of Kenyans and literally won through the international community compelling Raila to accommodate a done deal.
Naturally, the country became desperate to prevent future electoral faits accomplis. As part of the agreement, Kenya implemented a progressive constitution that reorganized the country administratively and introduced devolution. However, the 2013 win by Mr Muigai, which was once again disputed by Raila, revealed that the electoral law was still flawed and was unable to deliver the required threshold of elections that were credible and verifiable.
However, this time the TNA party of the president’s ticket had used ideology and propaganda to enforce acquiescence to the result. The ideology and propaganda had three pillars.
One element was the fascist ideology of “tyranny of numbers,” which was floated by Mutahi Ngunyi, that basically argued that candidates from the Kikuyu community would inevitably win the presidency because they had not only the tribal numbers, but also a fanatical ethnic voter base. This argument was swallowed by all and sundry, including international scholars and media like the New York Times.
The second, more insidious ideology was that of peace. Kenyans were bombarded with messages indicating that peace for Kenya meant accepting any result, no matter how many questions Kenyans may have.
After the election and the Supreme Court’s rejection of Raila’s petition based on questionable jurisprudence, the third pillar of the presidential propaganda machine became “accept and move on.”
First time a tragedy, second time a farce
Pulling off an electoral fait accompli for the third time against Raila Odinga was not going to work with the tactics of the second one. For one, the tyranny of numbers was difficult to push in a country where Jubilee was clearly unpopular. Two, the peace messaging no longer worked, despite getting the voice of the UN permanent representative Sid Chatterjee and media personality Julie Gichuru. Kenyans had decided there were no longer going to accept peace without the accountability of justice, and intellectuals also started to question what peace actually means.
Most of all, with the reform of the electoral laws and the replacement of the commissioners of IEBC, it was clear that it was not enough to evoke some mythical huge numbers of Muigai tribesmates. Instead, there had to be evidence of a spectacular win.
And so, against all expectations, the Jubilee government emerged with not only a presidential win, but a literal sweep of counties, even in areas which clearly did not support Jubilee. Unfortunately for the party, Jubilee had not reckoned with Karl Marx’s opening lines in the Eighteenth Brumaire of Louis Bonaparte: “Hegel remarks somewhere that all great, world-historical facts and personages occur, as it were, twice. He has forgotten to add: the first time as tragedy, the second as farce.” As Marx went on to explain, one can repeat the actions of the past, but those actions cannot deliver the same result because the circumstances are no longer the same.
Jubilee failed to realize that a number of things had changed since 2013:
- There was a more conscious, or “woke” population that would not wait for Raila’s NASA coalition to scrutinize the results. The Kenyan people scrutinized the results for themselves by downloading the Form 34As themselves and seeing that the results didn’t add up
- The Kenyan public had also learned that the president’s campaign was largely PR driven, and they were therefore more cautious about the PR messaging especially on social media. In fact, Cambridge Analytica soon became the label tagged onto any social media campaign that was deemed mischievous
- Raila had been burned twice and learned the tactics of how to win in court, and so had done a more thorough job in putting together his electoral petition. To make matters even better, or worse, the public would watch the court proceedings on live television
- When it came to legal redress, Jubilee was certain that going to court would produce the same result as the 2013 petition. But there was an act of God that nobody ever imagined: the Supreme Court’s decision to uphold Raila’s petition, agreeing that there were irregularities and illegalities committed during the elections.
How the fait accompli unravelled
Before the Supreme Court ruling, Jubilee, the US, UK and EU diplomats and election observers launched the “accept and move on” machinery that they thought would work like in 2013. To the anger of several ordinary Kenyans, the international officials gave reports in which they said the elections were free and fair simply because Kenyans queued and cast ballots without incident. They even joked about voters’ ink being put on babies to prevent women from using the same baby to get ahead of the queue. Meanwhile, diplomats avoided questions about the counting and tallying of results, which was where the main dispute was, and they urged Raila to seek redress through the court.
But Kenyans were not buying it. They accused the diplomats of supporting electoral fraud, with John Kerry’s twitter handle receiving the brunt of Kenyans’ wrath. One tweet came from @simiyuhiphoree, who replied to Kerry’s tweet calling for peace: “You came to Kenya, saw women exchanging babies to jump queues, and concluded the elections were free and fair, [thereby] legitimizing electoral fraud.”
From their urge to Raila to go to court, it was clear that the international community and Jubilee expected the Supreme Court ruling to go their way. When it didn’t, the international community was left with egg on their face. American media, like the New York Times, had to temper down its hardline stance on Raila, diplomats had to explain to international media how they missed noticing the problems with the elections, and to keep explaining to the Kenyan public that they had not taken sides.
OId habits die hard, and so Jubilee resorted to the tyranny of numbers line, attacking the court for caring more about paperwork (correct filing of Form 34As) than about the people (read, numbers). Nevertheless, it boasted that it would win the fresh elections.
As Jubilee and its Western backers prepared for another attempt at being seen to legitimately beat Raila at the polls, another surprise came: Raila withdrew from the polls.
From the empty poll stations of the fresh election, it was now clear that whether Jubilee won the vote or not, a Jubilee presidency was facing weak legitimacy. Once again, the West, led by the US ambassador Bob Godec, scrambled to strengthen Jubilee’s credibility by urging Raila to concede. Several weeks later, when the concession was not forthcoming, the ambassador turned his campaign into one of “reconciliation” to redress “long-standing issues.”
But clearly, Raila’s supporters had enough of adjusting to decisions made by others and on terms dictated by others. If one cannot accept a fait accompli, then one must act outside the options of “accept and move on” or “negotiate” that are dictated by the challenger or aggressor. And unlike the US embassy’s and media’s assumption that voters follow Raila blindly, the more likely reality is, as Wachira Maina states, “Mr Odinga’s base is now more militant and intransigent than he himself ever was.”
Not yet Uhuru
Raila’s swearing in as the people’s president is a challenge to the Mount Kenya elites’ stranglehold on power in Kenya. These elites had gotten into the bad habit of presenting Raila, and the country, with faits accomplis and appealing to morality (our desire for peace) to enforce our acceptance. But after decades of Raila being flexible and willing to be flexible, his supporters have run out of patience and demanded a fait accompli of their own.
However, as Charles Lerche argues in n a 1956 article in The Journal of Politics, the weakness of faits accomplis is they are incredibly restrictive. A fait accompli, he says, “tends to commit the user irrevocably to the new policy. It may become very difficult later to execute a graceful and face-saving withdrawal from an over-extended position.” It is because of this inflexibility that, as Maina Wachira argues, Muigai missed several opportunities to redeem the situation. The more ground he claimed, the more Muigai’s advisors prodded him to grab, thinking that Muigai “could only negotiate from strength if he first secured the presidency however anaemic its legitimacy.” Now that Raila has presented his own fait accompli through the swearing in, the entire country is caught in, as Wachira argues, “a dangerously destabilising stand-off.” The entire country is now facing no longer one, but two presidential faits accomplis.
I believe that while the short term solution to this crisis is for the two presidents to speak with each other, the long-term solution is not such extra-constitutional negotiations. We Kenyans paid a heavy price to implement a constitution that was drafted through negotiation and ratified by we the people. We went through all that to avoid private, closed door negotiations between politicians, like the MOU that Raila and Kibaki negotiated and whose collapse led to the debacle of the 2005 referendum and ultimately, the violence of the 2007 polls. Any deals between politicians need to be guided by the law and open to the public.
I suggest that to meet the threshold of public scrutiny and participation, that Kenya amends the election laws to raise presidential win to 70% + 1, with guidelines for forming a coalition government, and then holds a fresh presidential election. We must have an electoral process that serves “we the people,” and is committed to the inclusion envisioned by the constitution.
We must implement the constitutional two thirds gender rule, because failure to do so falls on the continuum of running the country in the exclusionary pre-2010 colonial logic. Jubilee needs to grow up, stop throwing tantrums through harassing the press and shutting down broadcast stations. Kenya must be a republic that is inclusive and is seen to be inclusive. The era of designating some ethnic groups as hard workers and others as lacking a stake in the economy must end.
We must insist on processes being done right, even if we have to repeat them until we get them right. We must stop bowing to done deals as inevitable and shrugging our shoulders with the classic question “uta-do?” We should now learn that there is nothing like accepting and moving on, because as the current stalemate shows, accepting means never moving on.