Background to the Post-Election Violence

© T.M.C. Asser Press and the author 2015
Sosteness Francis MateruThe Post-Election Violence in KenyaInternational Criminal Justice Series210.1007/978-94-6265-041-1_2

2. Background to the Post-Election Violence

Sosteness Francis Materu 

Faculty of Law, University of Dar es Salaam, Dar es Salaam, Tanzania



Sosteness Francis Materu


Literature indicates that the violence accompanying the 2007 general elections in Kenya was a spill-over effect of the country’s previous history, hence the need to scrutinize the historical antecedents to these elections. This chapter identifies and analyzes five factors, namely negative ethnicity, dictatorship, political alliances, criminal gangs and impunity, which, prior to the 2007 elections, had characterized the Kenyan politics. The chapter reveals that in view of the five factors, feelings had developed in Kenya, already before the 2007 elections, that certain ethnic communities had been deliberately marginalized since independence, while others had been highly privileged or favoured in different ways. This gave rise, inter alia, to a number of historical fears and grievances, mostly in relation to land. It is shown that this state of affairs became a recipe for election violence accompanying all the multiparty elections prior to 2007, and since the grievances were not addressed, and in view of the previous trend of election violence, it indeed became certain that even the 2007 general elections would not be free from violence.

2.1 Introductory Remarks

Sometimes due to historical connectedness of events, the present may not be fully comprehended unless the past is brought into perspective. By the same token, it may also be impossible to divorce completely the future from both the present and the past. And usually, the link between the past, the present and the future becomes even more relevant when one wishes to analyze a current event which in reality is a culmination of preceding historical state of affairs. Locating such a link becomes particularly crucial if the intention is, inter alia, to address the aftermath of such an event and project what the future may hold. Any study, whether legal or otherwise, relating to the post-election violence in Kenya will, by and large, befit this context.

A narrow view would associate the violence with the problem of power transfer which faces most African countries after an election process. Usually, this problem occurs when, after the poll count, it transpires that a ruling party or an incumbent president seeking re-election has lost the election and must hand power over to the opposition. The narrow view would explain why, for instance, the general perception in the run-up to the 1992 and 1997 multi-party elections in Kenya was that a smooth transition from the then ruling party, KANU (in case it lost) to an opposition party (in case any won) was a myth and almost infeasible. This perception existed only because in these two elections, the incumbent President Daniel Arap Moi was seeking re-election.1 But as this chapter will reveal, this view, although not entirely dismissible, is too narrow to wholly depict the real situation in Kenya. Indeed the problem goes beyond mere electoral politics.

A broad view would indicate that it is inappropriate to describe the post-election violence in Kenya merely as sporadic events attributable only to the 2007 electoral process. On the contrary, this view would describe the violence as a climax of cumulative historical factors or, as it has been described, as “a volcano that had long been waiting to erupt”.2 The reference to a “volcano” in this regard describes long-standing grievances and several unresolved issues pertaining to social, political and economic relations among Kenyans that had hitherto not been adequately addressed.3

The preceding remarks should, however, not be taken as suggesting that this study is the work of a historian. The inclusion of this historical account is only intended to bring into perspective the causal and factual links between Kenya’s previous historical, socio-political background and the 2007–2008 post-election violence. Such a picture is considered crucial here, because it will prepare a ground for a better understanding of the political paradigms or undertones surrounding the proposed domestic criminal accountability measures to punish the perpetrators of the crimes related to the violence.

To that effect, five factors unfold as generally being the most prominent features that have singly or jointly characterized Kenya’s politics at a time since independence. These are entrenched negative ethnicity,4 ethno-political alliances, dictatorship, hired violence (criminal gangs) and entrenched “culture” of impunity. This chapter gives a brief but reasonably fair account of these aspects of the Kenyan history.

2.2 Historical Role of Negative Ethnicity in Kenyan Politics

2.2.1 Transition from Colonialism to Independence

The earliest indicators that negative ethnicity would adversely affect the post-colonial Kenya were evident during the last days of the struggle for independence from the British. The problem of negative ethnicity is an impress of the colonial legacy, having been reinforced by the British ruling system. The British introduced a divide-and-rule system in Kenya as they also did in their other African colonies. This was a system that entailed a purposeful stratification of the colony’s population in a number of ways, including along ethnic lines, mostly for ease of ruling and exploitation.5

By 1950 Kenya was already divided by economic differentiation between the minority white population and the majority local population. This differentiation was evident in, among other aspects, the allocation of massive land to the white settler farmers, which land was alienated from the indigenous population.6 The Kikuyus were the most affected ethnic community. The land issue was one of the underlying reasons which triggered a long war of liberation, the Mau Mau movement, between 1952 and 1960.7 The earliest impact of the divide-and-rule policy manifested itself during this war. The majority of the members of the other big ethnic groups, mostly the Luo, the Luhya, the Kalenjin and the Coastal people, remained as bystanders, having refused to rally behind the Kikuyu leadership.8 Thus, Mau Mau was in some way considered as a Kikuyu affair, and was brutally suppressed by the colonial state in the late 1950s.

Apart from this armed struggle, ethnic interests continued to shape most events, even those which concerned or seemed to affect the collective interests of the Kenyan people as a whole. For instance, in the early days of negotiations for independence, specifically in the famous 1962/1963 Lancaster Conferences in London,9 ethnicity took precedence, and strongly shaped the demands of the Kenyan participants. The fear that “big tribes” would dominate the “small tribes” after independence was taken seriously by some of the participating members of the Kenyan delegation. There was an informal division among the Kenyan delegation which, to a great extent, was informed by tribal affiliation of the delegates. Two parties, namely, the Kenya African National Union (KANU) and the Kenya African Democratic Union (KADU) participated in the conference, apparently representing ethnic demands of their respective members.10 As the following section will show, the difference between these parties also entailed an ideological dimension which, in a way, had a link to the tribalistic dimension. This pertained to the structure of the constitution which should be adopted at independence. The said ideological dimension remained one of the key issues dominating Kenyan politics throughout, including during the 2007 elections and beyond.

2.2.2 The Regionalism and Centralism Ideologies

In the early 1960s, after the British had shown interest in decolonization, party politics in Kenya took a new dimension, as they became dominated by two different themes. In 1961, the main issue was the release of Jomo Kenyatta, a Kikuyu hero and first President of independent Kenya.11 This was followed, between 1962 and 1963, by the argument or theme already alluded to above—the structure of the government to be adopted at independence. It is within the context of the second theme that the 1963 first general elections were dominated by two quasi-ideological arguments, namely centralism versus regionalism.

From the onset, the two political parties, KANU and KADU, wanted a constitutional structure which, as a matter of priority, would benefit the tribal interests of their members. This placed the expected independent Kenya in a latent problem of tribalism and nepotism. KANU strongly wanted an independence constitution based on centralism (unitary state), while KADU strived for regionalism or federalism. KANU’s centralism envisioned a constitutional structure with three main features: an administration of the country done by a central government in Nairobi; a state-driven economy; and a free competition for resources.12 Apparently, this had a strategic reason: to ensure that its members, predominantly Kikuyu and Luo, would perform relatively better in this set-up. KADU, which claimed to protect the interests of the minority ethnic communities, was in the phobia of “domination” by the two big tribes in the structure proposed by KANU. For this reason it campaigned for majimbo 13 (Swahili word for regional governments) in which different federal “states”, apparently based on ethno-regional demarcations, would have the autonomy to decide their own affairs, more importantly the question of ownership of land and other resources found in their majimbo.14

It was in this context that during the independence negotiations at the Lancaster Conference, KADU’s delegation carried the slogan “regionalism or death”. In a meeting before departing for London, the party leaders had assured their members that they were prepared to negotiate for majimbo constitution at any cost, even if it meant bloodshed.15 The party secretary even told KADU members that the “Abaluhya, Kalenjin, Maasai and Coast people” would declare their independence if regionalism were not adopted at the Lancaster Conference.16 Eventually, the framework constitution agreed upon in London, and which was operational at independence, was based on majimbo system.17 This was the case despite the fact that there was a misconception about the framework actually adopted, each party claiming to have triumphed in having its ideology adopted.18

The Lancaster arrangement led to the first general elections in 1963. In these elections, more divisions were witnessed, whereby tribalism and the phobia of “big tribe domination” manifested themselves clearly. The so-called “small tribes” did not trust KANU’s candidate, who was also Kenya’s independence hero, Jomo Kenyatta. They accused him of having sided with a group of Kikuyu elites which was allegedly planning on how their tribe should receive awards commensurate with their suffering in the Mau Mau war of liberation. Leaders of the “KADU tribes”, specifically the Maasai, Abaluya and the Kalenjin, feared that without regionalism their land would be grabbed by the “KANU tribes”, for Kenyatta was nothing but allegedly a “Kikuyu tribalist”.19 As a result, the election campaigns assumed a tribal trend at all levels. In the areas inhabited by the “small tribes” the decision on who to vote for was not necessarily based on candidates’ leadership qualities, but rather on their ethnic affiliations.20

Eventually, KANU won the majority seats in the elections, the fact which enabled it to form an autonomous internal government. Jomo Kenyatta became Kenya’s first Prime Minister.21 For a short period of time, Kenya became a Dominion State pending official declaration of independence. In this transitional arrangement, the British monarch remained the Head of State22 and the Prime Minister became the Head of Government. Independence was officially declared on 12 December 1963, and on 1 June 1964, Kenya became a Republic, Jomo Kenyatta being its first Executive President. Having won the elections, KANU was determined to use its overwhelming majority in Parliament to diffuse the majimbo system, as it claimed that such a system was “unnecessary and expensive, and that it constrained its (KANU’s) rightful power emanating from its electoral supremacy”.23

2.3 The Rise of Monopartysm and Consolidation of Dictatorship

2.3.1 From De Jure Multipartysm to De Facto Monopartysm

As pointed out earlier, Kenya was a de jure multi-party state at independence, KADU being the official opposition party after the 1963 elections. However, after KANU’s victory in these elections, concentration shifted temporarily from the ideological differentiation of the two parties to the building of a new consensus, i.e. politics of nationbuilding. In this new focus, national stability and identity were heralded as the most important national priorities of the infant state.24 KANU was successful in ensuring that a completely new argument emerged. The argument was that the new priorities of the infant nation could not be realized if the “confrontational electoral politics” envisaged by the Westminster-style democracy inherited from the departing colonialists was emphasized.25 Apparently, the new “consensus”, the paramountcy of nationhood over party ideologies, was put to experiment when the first cabinet was formed. KANU’s “determination” to the consensus seemed to have been confirmed when Kenyatta created a “tribal ruling coalition” within the KANU government by bringing in members of the small or “KADU tribes”.26 This, to some extent, eased the tension, overcame the fears of big tribe domination and, more importantly for KANU, appeared to render KADU’s “protective” ideology of regionalism completely redundant.27

The tribal-regional balance achieved in the Kenyatta’s first cabinet, together with the new perception, namely that competitive party politics was detrimental to the development of the infant state, had a serious impact on the continued existence of KADU. First, KADU’s strong supporters of majimbo vanished from the scene, as the ideology seemed to lose its strength drastically. This paved the way for Kenyatta’s new ideology, harambee (working together).28 Secondly, KADU was significantly weakened by defections, as most of its members started to cross the floor in the National Assembly to join KANU having been lured by promises of more funds from the government for the development of their communities.29 Apparently, this was a tactic by KANU to have KADU dissolved.30 Shortly thereafter KADU actually dissolved itself voluntarily in December 1964, thereby rendering Kenya a de facto single-party state.31 KADU’s key leaders, including Daniel Arap Moi (a Kalenjin), joined KANU, and were soon appointed to key ministerial positions in the KANU government.32

2.3.2 Emergence of Factions Within KANU (1964–1966)

The amalgamation of KADU into KANU did not save the purpose for which it was intended. Instead, it brought the old ideological differences into KANU, and even created more others from within it. The reason being that before the fusion of the two parties, already there were two groups of radicals and moderates within both KADU and KANU.33 For instance, while on the one hand the radicals advocated for, among other things, a total shift from pure capitalist economic policies inherited from the departing colonialists to socialist policies similar to those that were later adopted in neighbouring Tanzania, the moderates, on the other hand, preferred to continue with the status quo. Thus, upon the fusion of the two parties, a number of other radicals and moderates such as Daniel Moi moved from KADU to KANU to add to the numbers. This consolidated the existing factional groups. As a result, KANU experienced an internal threat of stability. A deliberate campaign was launched to eliminate all the followers of the radical faction. It was achieved through rigged party elections, allegedly engineered by President Kenyatta and his moderate allies.34 This was then followed by the demotion of Jaramogi Oginga Odinga, a radical, from vice presidency at the party conference in Limuru. His seat was taken by Daniel Arap Moi, a moderate, who, later in January 1967, was named Vice President. This happened after the eliminated radicals—a group of 29 KANU MPs led by Jaramogi Oginga Odinga—did party hopping; they crossed the floor and found a new party, the Kenya People’s Union (KPU), in 1966.35 Thus, from 1966 Kenya resumed its de jure multiparty status.

2.3.3 Suppression of Opposition Parties (1966–1982)

KANU’s strategy had always been to remain the sole political party in the Kenya’s politics, even where Kenya was de jure a multiparty state. The formation of the KPU was viewed as a hindrance to the realization of this ambition. As a result, between 1966 and 1969 there was a serious suppression of political opposition. Firstly, immediately after the KPU’s formation, KANU engineered an ex post facto constitutional amendment which forced all KANU MPs who had “crossed the floor” to re-contest their seats. Only six of them were re-elected. Secondly, the KPU’s political activities were suppressed, including registration of new branches, which was refused or deliberately delayed. Thirdly, constitutional amendments and other draconian laws targeting the opposition were enacted. Such laws banned independent candidates and empowered the President to order preventive detentions.36 The climax of this suppression was reached in 1969 when the KPU was banned and its leaders, including Jaramogi Oginga Odinga, were arrested and detained without trial.37 Kenya became once again a de facto single party state.

2.3.4 From Kenyatta to Moi: Tyrannical Rule Consolidates

The banning of the opposition parties was never lifted throughout the remaining tenure of Kenyatta, who remained president until 1978 when he died. The then Vice President Daniel Arap Moi, a Kalenjin, took over the presidency, despite the disapproval of the Kikuyus in KANU.38 Having assumed power, Moi promised to follow the nyayo (footsteps) of the old man” (Kenyatta).39 The nyayo politics, for sure, saw to it that the dictatorial state originally crafted by the “old man” was perfected. Moi’s regime became relatively more tyrannical and self-centred compared to Kenyatta’s.40 For example, notwithstanding the ban against opposition parties, it is said that the Kenyatta regime had a higher level of tolerance for freedom of expression, dissent, criticism and independence of the judiciary than the Moi regime.41 When Moi took over, ethnic tensions and mistrust grew stronger as attention was perceived to have shifted from the Kikuyus, who had relatively benefited under Kenyatta’s rule, to the people of Rift Valley (Moi’s home Province).42 In the early 1980s, Moi is said to have made deliberate efforts to minimize the control of the Kikuyu elite in both public parastatal boards and civil service by replacing some of them with his loyal appointees.43 The Moi regime continued to show all signs of authoritarian tendencies and concentration of powers in the presidency.

Two landmark events dominated the political scenes in 1982. First, through a motion moved by the then Vice President Mwai Kibaki,44 the existing Constitution was amended by inserting the infamous section 2A that officially converted Kenya to a single party state.45 It should be recalled that since 1969, when the opposition party, Kenya Progressive Union (KPU) was banned, Kenya had only remained a de facto single party state. The leaders of the banned KPU had, therefore, been rendered politically impotent, because they were denied any chance to contest any seats, even those who joined KANU. Once again, led by Jaramogi Oginga Odinga, they tried to form and register a new political party, the Kenyan Socialist Alliance, in order to challenge KANU’s monopoly of political power. However, registration was refused, and immediately, the aforementioned constitutional amendment was promulgated to make Kenya a de jure mono-party state from 1982.46

The second event that dominated the political scene was an attempted coup d’état in August 1982, which was allegedly staged by low-rank members of the Air Force. It is not very clear which politicians were behind this attempt, although it is alleged that some of the senior Kikuyu members in KANU, the army and the police force were responsible.47 Subsequent to this event, Moi strived more to centralize power and perfect the repressive state. The operation of an “imperial presidency” became more evident than ever before. The separation between the three arms of state became blurred, as the Judiciary and Parliament are said to have been reduced to mere “appendages” of the all-powerful Executive.48 The party (KANU) became the central focus of authority, while the Parliament assumed a subordinate status. Some voices of discontentment were still raised despite serious state intimidation. The clergy, for example, echoed their dissent from the pulpit, having seen that democracy was being trampled underfoot.49

Those who opposed Moi had a huge price to pay. The state agents implemented preventive detentions without trial, forcible exiles, political assassinations and extra-judicial killings.50 Raila Odinga51 was Kenya’s longest serving political prisoner in this regard.52 After the attempted coup, he was put under house arrest for 7 months, detained without trial for 6 years, and later, in 1988, tried for supporting an underground movement, the Kenyan Revolutionary Movement, which was demanding a reintroduction of multiparty system in Kenya.53 The following paragraph, retrieved from a post-Moi government official report, summarizes how tyrannical the Moi State turned:

The Moi government pursued an open policy of using naked state violence to suppress and vanquish the political opposition and pro-democracy campaigners, among them civil society, opposition political parties, journalists, students, the clergy, and any and every real or imagined political dissident. Opposition political rallies and meetings of government critics were frequently broken up, and violently so. Police and security forces have killed scores of reformers throughout the last two decades.54

In the 1990s, the Moi-KANU government, under the pretext of land clashes, allegedly instigated and, in some cases, directed an ignition and execution of inter-ethnic violence against the communities and zones which supported opposition against Moi.55 In the Rift Valley and Coastal provinces, for instance, people from other provinces (tribes) were termed as “foreigners” or “land grabbers” and subsequently forced out of their land or, in some instances, killed instantly. This has even been equated to “attempted genocide by way of ethnic cleansing”.56

2.4 Resumption of Political Pluralism and Proliferation of Political Alliances

2.4.1 Resumption of Multipartysm

In December 1991, with Moi still in power, Kenya resumed its roots as a de jure multiparty state, thereby responding to the mounting pressure from within the country as well as from the international community, especially the donors.57 The Constitutional provision establishing the mono-party state was repealed, and a constitutional restriction of the presidential seat to a maximum of two five-year terms was introduced.58 Interestingly, despite its past suppression, the call for the majimbo (federalism) ideology resurfaced alongside the domestic pressure for resumption of multipartysm.59

The first two multiparty elections were conducted in 1992 and 1997, and in both elections KANU emerged victorious. The presidential term limit introduced with the resumption of multipartysm in 1991 was prospective in nature. Consequently, although the incumbent President Moi had already been in power since 1978, he was allowed, under this arrangement, to count his “first” term effectively subsequent to the date of the law establishing term limits. He thus contested as KANU’s candidate in both the 1992 and 1997 presidential elections. The mere presence of Moi’s name in the ballot paper diminished almost completely the chances for the opposition parties to win these two elections. The main reason for this pessimism was that, although the opposition was generally too weak and divided to triumph over KANU, Moi, being the head of state seeking re-election, had an added advantage: he had at his disposal all the loyal state agents and machinery which he could use—and which he allegedly used—to manipulate the whole process.60 What else could one expect from a framework where the incumbent President was the discretionary appointing (and firing) authority of the officials charged with the task of managing the elections? As will be shown shortly, the opposition parties had to wait until 2002 for them to win against KANU. This time, however, Moi was no longer eligible to contest having exhausted his two-term limit.

2.4.2 Politics of Alliances and Party Hopping

Since its inception, the multiparty system in Kenya has exhibited a constant trend of mergers, alliance forging and pact signing among the parties. The immediately conceivable rationale for this practice could be the need for strength-building in the environment characterized by proliferation of political parties.61 These alliances have exhibited two characteristics. Firstly, in all cases, they have been ad hoc in nature, emerging only as temporary vehicles for political elites angling for post-election posts. They have hardly lasted after elections, even in the first case in which an opposition alliance won the presidential election in 2002. The composition of the alliances changes frequently due to “party hopping” i.e. the tendency of individual members to constantly change their party affiliations. This tendency has been described sarcastically as “political nomadism”,62 and one that makes most political parties in Kenya “indomitable lions”.63 Secondly, ethno-regional interests have remained the common denominator in almost all the party alliances, specific focus being on power and access to state resources.64

The following parts describe some of the major party alliances in which the aforementioned features manifest themselves clearly. One notable thing is that most alliances emerged towards the 2002 and 2007 elections. The Rise and Fall of the “New KANU” Alliance

Having won the first two multiparty elections in 1992 and 1997, Moi was constitutionally barred from seeking re-election in the 2002 elections. The pre-conceived fear that he would engineer a constitutional change to enable him extend his term limit was rebutted by Moi himself.65 Therefore, towards the 2002 elections, the transition in respect of the occupier of the presidential seat became clear. This gave rise to yet another cloud of uncertainty and speculations, which dominated the period preceding the elections. This uncertainty pertained to whether, apart from the transfer of the presidency from Moi to a new individual, the transition would also entail a transfer of the presidency from the long ruling party, KANU, to another political party. Apparently, Moi himself was engulfed in this uncertainty. He, like all other Kenyans, could not predict with certainty how the ethno-regional dynamics in the Kenyan voting patterns would affect this election, especially now that the “professor of politics” (Moi as he was known) would no longer be running for president. This caused fear that KANU’s candidate might fail to acquire the 25 per cent vote threshold required under the existing Constitution.66 Only a political alliance was the way out. Moi worked on one. Courting Alliance with Odinga’s NDP

To reduce uncertainties and increase KANU’s chances of victory, Moi decided, as the 2002 election approached, to solicit a merger with Raila Odinga’s opposition party, the National Development Party (NDP). It was ironical that Moi sought to ally with Raila Odinga who had previously been a victim of torture and preventive detention by the Moi regime for almost a decade. Odinga had an overwhelming support of his tribe (Luo), one of the biggest tribes in Kenya. So the immediate question was whether these former antagonists would be able to work together in good faith, or whether their “political marriage” was merely one of convenience.

The KANU-NDP collaboration started as a parliamentary alliance on the basis of parliamentary seats each party had won in the 1997 elections.67 It culminated into a full merger in March 2002, whereupon NDP leaders, including Raila Odinga, were elevated to ministerial positions.68 The resulting alliance was named “New KANU”. The underlying aim of this alliance, in Moi’s perspective, was to widen KANU’s voter-strength by securing the vast NDP support in Nyanza Province, which was predominantly of Odinga’s Luo ethnicity.69 Following the merger, Moi believed that KANU was now stronger than ever, because it had brought on board each of the five big ethnic groups70 by having one of “their persons” as party leader.71 As Moi was preparing to finish his second term (1997–2002) and leave office, this was part of his broad but hitherto undisclosed succession plan. Effect of Moi’s Succession Plan: Project Uhuru

After the KANU-NDP successful merger, it appeared that Moi had managed to play the “ethnic cards” well, because the resulting alliance had a strong fusion of ethnic forces. However, as soon as the secret of his succession plan became known, the merger that Moi had created turned sour and became a source of great discomfort for him. A perception emerged that Moi’s succession plan was crafted deliberately to enable him continue ruling Kenya indirectly even after his formal retirement. The reason was that the party constitution that was adopted during the merger allocated extraordinary powers to the Chair (Moi), such as powers to approve cabinet appointments and a veto over major government policy decisions, that is, if the alliance won and formed the government.72 Moi was aware that if this was to be achieved, his successor had to be someone who was loyal to him—an individual who, even as president, could be controlled easily from behind the curtain. Moi, therefore, imposed the 41-year old Uhuru Kenyatta, the son of Kenya’s first president Jomo Kenyatta, as New KANU’s presidential candidate. Moi told the nation:

I have chosen Uhuru to take over leadership when I leave. This young man Uhuru has been consulting me on leadership matters. I have seen that he is a person who can be guided. If there are others who are chosen then it will depend on the people.73

This imposition was met with a strong, open and unprecedented defiance of Moi. The defiance was orchestrated by Raila Odinga, supposedly due to his “intoxicating influence and his aggressive and uncompromising pursuit of what he believes to be right”.74 Consequently, despite Moi’s preference of Kenyatta, five other individuals in the New KANU alliance, including Odinga, also declared their interests to be nominated as the alliance’s presidential candidates.75 They formed a faction within the New KANU alliance and named it a “Rainbow Alliance”. The aim of this faction was to push for democratic nominations, opposing the imposition by the Uhuru-Moi faction of an “unpopular” candidate. However, seeing that they were unlikely to defeat Moi, the Rainbow Alliance transformed itself into a political party, the Liberal Democratic Party.76 This event happened coincidently with the endorsement of Uhuru Kenyatta as KANU’s candidate at Kasarani on 14 October 2002.77 This marked the end of the short-lived New KANU political marriage. Meanwhile, the other opposition parties were also strategizing on their own political alliances. Advent of the Rainbow Coalition as a Winning Opposition Alliance

The formation of the short-lived New KANU alliance had sent signals to the opposition parties that if they resorted to contesting individually in the 2002 elections, they would lose. The fragmented opposition had lost the two preceding multiparty elections supposedly due to lack of unity.78 As a strategy for unity towards the 2002 general elections, two opposition alliances were formed a few weeks before the general elections with a view to competing against KANU in the presidential election. The first alliance was the Liberal Democratic Party (LDP), which, as already explained in the preceding section, originated from the Rainbow Alliance that had severed itself from the New KANU. The second alliance was the National Alliance (Party) of Kenya (NAK) that started as an alliance of three political parties,79 but which would later admit more parties to become an alliance of 13 political parties.

On 22 October 2002 the two alliances above, the LDP and the NAK, decided to merge into one opposition alliance, the National Rainbow Coalition (NARC) (hereafter “Rainbow Coalition”). Thus, the Rainbow Coalition was an alliance of alliances—a grand alliance. Its origin was in two agreements (i.e. memoranda of understanding) signed on 21 October 2002 between the LDP and the NAK. The first agreement, which was made public, was based on policy commitments and the principles of power-sharing in a coalition government in the event that the Rainbow Coalition won the elections. The second agreement was signed secretly between the leaders of the parties to the Rainbow Coalition, and was never made public. However, it later came to light that in the secret agreement the parties had agreed on a detailed power-sharing formula which would be adopted after winning the elections.80 Indeed the Rainbow Coalition was able to win both the presidential and parliamentary elections by an overwhelming majority. Its presidential candidate Mwai Kibaki was declared the winner, thereby defeating KANU’s candidate, Uhuru Kenyatta.81

Therefore, the 2002 presidential election in Kenya goes down in history for being the first time that KANU, the party which had been in power since independence, was ousted from power by an opposition alliance, the Rainbow Coalition. But as the next section shows, this particular alliance, too, was another “indomitable lion”; it did not last long. Towards the 2007 Elections: Disintegration of the Rainbow Coalition and Advent of PNU and ODM Alliances Rainbow Coalition: A Fragile Alliance

The Rainbow Coalition was a unity whose cohesion remained largely dependent on a bona fide implementation of the memoranda of understanding signed among its members. As indicated earlier, the emergence of factions within political parties leading to break aways had become a common feature in Kenya’s politics before and after the advent of political pluralism. This explains the early prediction that, even though it had won the 2002 presidential election, the Rainbow Coalition, too, was a fragile alliance which was prone to disintegration at any time.82

The Rainbow Coalition was prima facie a fragile entity for one main reason: It was an umbrella alliance. Unlike an ordinary political party whose membership comprises individuals (natural persons), the Rainbow Coalition admitted political parties as members (partners). The parties that acceded to the Coalition retained their identities and own members. As a result, although individuals contested the election carrying the Coalition’s flag, their respective parties did not abandon their party interests, such as economic and ethnic demands, nor did they dissolve themselves upon acceding to the coalition.83 This posed an obvious ‘danger’ that the political parties forming the Rainbow Coalition could withdraw from the alliance any time if a disagreement occurred among them. Indeed this is exactly what happened.

The road to the disintegration of the Rainbow Coalition started with the failure to honour the objectives and principles agreed upon in the agreements creating it. One such principle was that the two sub-alliances forming the Coalition, the LDP and the NAK, would be “equal partners”, and for that reason, the cabinet positions would be shared equally between them.84 According to the formula that had been agreed upon, a cabinet of 23 members, composed of 11 members from the two sides, with Kibaki as the chair, would be created. However, Kibaki is accused to have breached this agreement by appointing more members from his own side, NAK, and also by disregarding many other aspects of the agreement.85 This elicited criticism, caused frustration, dissatisfaction and feelings of betrayal and, more detrimentally, led to the emergence of factions within the Rainbow Coalition.86 Responding to the criticisms raised, Kibaki’s side, allegedly made of “impenetratable aides” nicknamed the “Mt. Kenya Mafia”,87 argued that the President was exercising legitimate constitutional powers which could not be curtailed by political or “secret agreements among power-hungry leaders”.88 This untrustworthiness was the biggest fracture to befall the Rainbow Coalition’s foundation. The Coalition’s actual disintegration followed in 2005 as described below. Effect of the 2005 Constitution Making Process

The ultimate fall of the Rainbow Coalition was triggered by the 2005 attempt at initiating a constitution making process. The parties to the Coalition had agreed, inter alia, that if they won the elections, they would see to it that a much needed new constitution was adopted within 6 months.89 The background to this commitment is that prior to the 2002 elections, a statutory body known as the Constitution of Kenya Review Commission (CKRC)90 had done a survey and recommended an adoption of a new constitution in Kenya.91 When the Rainbow Coalition was formed in 2002, its members agreed wholeheartedly that if they won the upcoming elections, they would pursue this agenda to its conclusion.92 In fact, this is believed to have been the only policy issue which had bound the Rainbow Coalition together.93
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