Kenya's tough choices ahead of 2022 election

Four crucial issues confront Kenya in a high-octane-41-month marathon to shape the country's political landscape.

Smarting from a twin divisive presidential run, Kenya is poised to deliver on a population census, constitutional review, boundary delimitation and the epic 2022 General Election.

The centrality of these processes to the stability of the nation cannot be over-emphasized as their outcomes could lead to a stable society or chaos.

Electoral experts warn that, from experience, the time available to the country to plan and execute an election programme impacts the perception of electoral outcomes.

A concept paper prepared by a public affairs firm Policy House has developed four scenarios country could consider in relation to the time element to successfully address the issues.

Policy House seeks to integrate new perspectives on a national, regional and international public policy sphere for Africa.

The think-tank works with governments, civil society organisations, universities and other research institutions, the private sector and individuals to share new ideas about the future of Africa in the world.

The paper titled 'The 42 Months: The Sequencing of Options for Population Census, Boundary Delimitation, Constitutional Reforms and General Election' looks at immediate interventions required to mitigate any potential risk that might arise from the delayed implementation of the four issues.

 Policy House proposes that all reforms must be completed at least 12 months to the 2022 General Election to allow time to prepare for the epic polls.

"Anything done so close to the election without necessary consensus among key players tends to lead to political instability. As a result, time is an important resource in the reform process," Policy House says.

But where the process is unchecked and activities left until too late, there might be far-reaching social, economic and political upheavals with serious implications for the Kenyan state, it warns.

The firm warns that while all reforms, based on past scenarios, are election motivated, a reform process requires a critical level of consensus across the political divide.

"But since building consensus in a politically fragile environment takes even more time, adequate time is required for that purpose," says paper prepared by electoral experts including former IEBC chief executive officer Ezra Chiloba.

The experts propose that there must be a framework of engagement so that there is an agreed framework of engagement across the board to enhance certainty in the reform process.

To achieve stability, there must be a well-thought-out structure of the reforms that will initiate and implement any reform process that is to be carried out.

Since the population census is ongoing and expected to end towards the end of the year, Policy House says there are minimal concerns about its sequencing risks.

The experts' emphasise sequencing of the boundaries review, constitutional reforms and general election as being of much critical concern.

Policy House has prepared at least four possible scenarios facing the country to successfully deliver on the population census, constitutional review, boundary delimitation and the general election.

The four scenarios are the Low-Risk Scenario (The Mvumilivu),  Medium-Risk scenario (The Kazi Mpango), Medium High-Risk Scenario (The Mvinyo Changanya) and the High-Risk Scenario (The Mungu Saidia).

The Mvumilivu Scenario

Here the experts propose that the review of electoral boundaries and constitutional reforms be pushed to after the August 2022 general election.

The Constitution provides that the EBC must carry out a boundaries review eight to 12 years, with 2024 set as the outer limit

IEBC chairman Wafula Chebukati says the commission has prepared a budget for the review, which has gone through the established budget approval mechanisms including Parliament.

“The last review was finalised in 2012 and therefore a review must be completed by early 2024,” he said in a statement.

Policy House argues that since constitutional reforms are not a mandatory requirement, they could be concluded after the next general election.

"If these two processes are managed as post-2022 programmes, there will be less political pressure and competition over resources and time in election preparation,"  the firm says.

While this scenario is fairly manageable with minimal risk to political stability, it requires political consensus among actors, especially the pro-reform advocates.

The Kazi Mpango Scenario

Here the country would choose to go for either boundaries review or constitutional reforms before the 2022 elections.

This means that out of the three main issues, the country chooses at least two, with 2022 elections being one of them.

The body argues that while the issues must be concluded at least 12 months before the election, either of the two processes will have political ramifications depending on the management of the process and its outcome.

"If the process and outcome of either the boundaries review or Constitution reforms are contested, the level of polarisation going into the elections will increase. Further, the outcome of either process could introduce new dimensions affecting the management of impending elections," Policy House says.

According to the firm, the scenario will give the government less disruptive time to implement its agenda with minimum political temperatures.

The Mvinyo Changanya Scenario

This is a medium to the high-risk scenario in which the country could decide that both the review of boundaries and constitutional reforms are completed at least 12 months before the elections.

"Against the backdrop of an election in 2022, the two programmes become intense in terms of execution and the politics of the day. The demands over resources become more evident," the firm says.

Under this scenario, the attention of the entire country will shift towards debates on boundaries, constitutional reforms and elections, creating too much-uncoordinated noise in the political space.

This would be a close replay of the 2002-2010 period, with the risk of other government programmes not being realised.

The firm warns against this scenario, which it says portends a leadership challenge across institutions.

Policy House warns that under this scenario, new political formations will take shape and institutions such as Parliament and IEBC will be under immense pressure to facilitate these processes. 

"While political interest in the boundaries review and constitutional reform processes will be high, the outcomes might not be that important to the promoters of such initiatives," the firm says.

Given the likelihood of politicians using the process to start mobilising support towards the elections, political fallout becomes imminent before and after the elections.

"The risk of political instability and economic downturn are very high. Obviously, this is a less palatable option for the country, given the nature of the country’s ethnic political organisation,"  Policy House concludes.

The Mungu Saidia Scenario

Experts warn against this scenario which is high-risk, with everything on autopilot.

Without any plan, key decisions would be left until there is confusion around planning and prioritisation.

In this situation, review of boundaries could commence with the aim of using the new electoral units in the 2022 elections.

With the process likely to not to be completed within time, there could be dissatisfaction among stakeholders amid the push to have constitutional reforms through a referendum, which might be held before or on the election date.

"The referendum process is convoluted and the outcome is uncertain. The country, and especially the IEBC will be under immense pressure working on three programmes concurrently – boundaries, referendum and elections," says Policy House.

Due to time constraints, everything would happen too close to the election, with two situations likely to emerge.

First, elections would be held in August 2022, but fail the test of credibility.

The country would then plunge into post-election chaos, as was the case in 2007-08.

Second, the IEBC would postpone the  August 2022 because of poor preparedness in what could land the country in unchartered territory.

"As a result, there is more pressure from political players on the legitimacy of the government and this probably demands a transitional government pending new elections. There is anger against the IEBC with demands that the body is reconstituted before the elections,"  the experts say.

Policy House warns that this scenario would plunge the country through the emotions of waiting a little longer, with the huge political consequences of such an act.

"Will the country recover back to a stable and functioning society, as we know it? Indeed, the outcomes under this scenario are highly uncertain, hence, the high risk. This territory must be avoided at all costs," the firm concludes.

The country is in a position to make strategic choices on how to proceed in addressing the agenda around the four issues of census, boundaries, Constitution and elections.

Policy House recommends that initiatives with Low–Medium risks (Mvumilivu and Kazi Mpango options) be considered.

As much as possible, the country should avoid High Risk (Mvinyo Changanya and Mungu Saidia) options.

"For High-risk scenario, the country can only afford to think about it but not be a catalyst," Policy House says.

Staying within the Low and Medium risk areas, the policy think tank recommends that an urgent decision has to be made on which process the country must invest in given the constraints of time.

A robust communication strategy should be put in place to raise awareness among the public on the importance of the census process to boundary delimitation, the general election and how boundaries review can secure equity in representation and equality of the vote.

Kenyans should be well informed of the processes, the methodologies to be used and safeguards to guarantee fidelity of the census.

Through this, citizens will have an opportunity to actively, freely and meaningfully participate in this crucial exercise.

The experts want a critical path towards the constitutional review developed and a legal regime to govern the referendum process must also be put in place.

The current legal regime on the referendum is inadequate.

There is an urgent need to strengthen Part V of the Elections Act (Sections 49–55), through necessary amendments to the Elections Act to bring it to conformity with the Constitution.

Reforming the IEBC

The IEBC plays a central role in boundary delimitation, the referendum and the general election. Presently, the IEBC is not fully constituted. The Constitution of Kenya and the IEBC Act provide the legal framework enabling the process of constitution of the Commission.

A properly constituted the IEBC will facilitate the planning and execution of these important processes in our constitutional democracy. This is particularly crucial in the event the review of boundaries is undertaken for the purposes of the 2022 elections.

Parliament's role

Deputy President William Ruto’s grip on Parliament, however, is likely to determine the fate of the proposed referendum.

The DP stands in the way of his boss, President Uhuru Kenyatta,  and Raila Odinga since Ken Lusaka, his close ally, is Senate Speaker.

Other allies of the DP who hold key and powerful positions in the House are Senate Majority leader Kipchumba Murkomen and his counterpart in the National Assembly Aden Duale.

Legal Affairs Committee chairperson and Baringo North William Cheptumo is also considered his close ally. Many MPs are also drifting towards Ruto. The DP is also close to a number of governors and county assembly leaders. 

(Aditional reporting by Benjamin Imende. Edited by Eliud Kibii)