Cellar Group: Citizens Pathway to the Future

A group of concerned professional Kenyans met at the Cellar Restaurant at Valley Arcade, Nairobi and produced this document that they are going to share with Raila and Kibaki.

A stellar job and part of the reason why I am convinced that we have the capacity (with a little international facilitation perhaps) to come up with a creative Kenyan solution to this very Kenyan problem.

1 Citizens pathway to the future

An analytical framework to inform efforts at resolving the current impasse

At this unfortunate stage in our nation’s history, we have come together as a group of professionals to offer some analytical input into the current situation with a view to guiding efforts aimed at achieving national reconciliation, healing and return to the development path that Kenya is known for the world over.
The analytical framework includes six elements together with a 7th on how this input may be shared with other interested groups and the media and begin to bring sobriety to the present tragic situation. The six elements include:

1. Key pre-election issues: We highlight some of the key pre-election issues that are a feature of our society and based on how these were dealt with during the campaign period, may have accentuated divisions and continue to contribute to the hard-line positions taken by the major protagonists;
2. The election process and its impact: Here, we capture a synopsis of the election process and how it has impacted on the current situation;
3. The case for negotiation for the two protagonists: We present the propelling case for both President Kibaki and Hon Raila Odinga to come to the negotiating table;
4. The path to, and consequences of failure: We extrapolate how the current hard-line positions could pan out to what may appear to be short-term success for the protagonists but will ultimately lead to failure of Kenya as the nation we know today;
5. Possible negotiation agenda: We highlight the key issues that need to be negotiated to come to a settlement that will not only solve the current crisis, but also strengthen national institutions to guard against possible recurrence of similar situations in the future;
6. Post-crisis negotiated scenario: Predicated on successful negotiations, we paint a picture of how the present dark circumstances could transform into a possible desired future that we can all be proud of and earn Kenya pride of place among the international community.
7. Sharing and dissemination: This sets out the possible approaches to sharing this framework with a view to putting on the agenda of the key protagonists as well as in the public domain.
   

The group that has deliberated this framework brings to the table professional experience, objective analysis and integrative complexity that enables all actors to obtain a broader perspective of the present circumstances, likely outcomes and possible pathway to a positive future. We believe Kenya has the capacity to emerge from the present circumstances a stronger nation.

1.1 Key pre-election issues
The current national crisis may be traced back to a number of historical issues that are a key feature of our society and which need deeper analysis and specific policies to manage them as they cannot be wished away. During the pre-election process, the key ones that were used to accentuate divisions and whip up emotions include:

1. Transition failure: The NARC Government that came into power in 2002 was elected on a reform platform to redress both the political and economic failures of previous Governments. Whilst there are some credible gains on the economic front, little attention has been paid to the building of a robust political institutional framework and restitutional justice. On the contrary, efforts at political reform and redressing historical injustices have been thwarted by the Government including in the lead up to the elections. The continued focus on the economic pillar with little regard for political reforms has left the country with a strong foundation on one side and a crumbling one on the other. The pursuit of an economic agenda at the exclusion of political reforms has been demonstrated to be unsustainable by the current crisis. This had already been foreseen as a possible outcome in “Kenya at the crossroads: Scenarios for our Future” published by the Institute of Economic Affairs in April 2000.
2. Class/ access to resources/ exclusion/ us and them: The issues of inequality and inequity were used to bring out class divisions and to highlight how some groups have been denied access to economic resources and thus continuing to exclude them from economic activity and further impoverishing them. These issues were targeted at particular regions (Rift valley, Nyanza, Nairobi, North Eastern and Coast provinces), as well as the youth. The culprits were identified as the ruling class who happen to comprise largely one community, as well as the Asian community particularly in Nairobi, Mombasa and Kisumu;
3. Ethnic tensions: Ethnic divisions go back to pre-colonial times and the country has yet to come to terms with the reality of our ethnic diversity and see this as a source of wealth rather than a basis for heightening divisions. Unfortunately, the election campaigns were characterized by a whipping up of emotions and ‘demonising’ of particular ethnic groups leading to the current rift in the country (the Luo as violent and hungry for power and any candidate from the community being unelectable; the Kikuyu as arrogant, selfish, domineering, and unwilling to share economic gains with any other community; the Kalenjin as corrupt or beneficiaries of corruption).
4. Disregard for the rule of law: In the lead up to the elections, we saw state-sanctioned disregard for the rule of law on the one part (whether this be Matatus, hawkers, and the dolling out of development goodies), and violence visited upon opponents and their supporters with impunity. This may have further fanned the powder keg that ignited in the last days of the tallying process and escalated into a national crisis after the announcement of the final results.
5. Campaign financing resulting in strong vested interests in each camp which may be contributing to the hard-line positions taken there is need to take cognizance of these issues and draw lessons on how the treatment of these issues may have contributed to the current crisis. More importantly, we must identify more responsible approaches for managing some of these deep rooted issues especially in pre-election periods. Key amongst the approaches is establishing the institutional framework for policing the campaign process to ensure that these do not accentuate divisions and spread hate the way the last campaign did.

1.2 The election process and its impact

Since the late 90s, there has been a comprehensive programme of civic education mainly undertaken by Civil Society Organisations (CSOs) with the support of various international Development Partners. This together with the voter registration campaign resulted in increased civic awareness by a large section of the population, and especially the youth. As a result, the number of registered voters increased from about 9m in 2002 to over14m at the time of the election in 2007. The result of this civic and voter education was considerable improvement in democratic empowerment and the realization by the people of Kenya that they indeed had the power to determine how they are governed.

This civic awareness manifested itself in individual commitment and sacrifice by voters to turn-out in large numbers on election day to make their democratic choice. This also provided the point of individual involvement and responsibility for the present circumstances. As was evidenced on election day, most voters believed that they had fulfilled their civic duty and it was now up to the ECK to play its role of ensuring free, fair and transparent elections that would reflect the will of the people. This appeared to be going on well with the counting and public release of results. By the end of day on Friday 28th December, there appeared to have been acceptance that Hon Raila Odinga was poised to be the next President of Kenya and even those constituents who may have voted for the opposite camp appeared to be resigning themselves to such an eventuality. And then the disputes begun to emerge on Saturday 29th December and by Sunday 30th, the election results appeared to have taken a dramatic turn in favour of the incumbent. Going by the objections that had begun to be raised, the delays experienced in announcing some results, and the pictures of chaos emerging from various tallying centres, the credibility of the results, particularly the presidential poll, begun to be put in question. The circumstances under which the final presidential results were announced and subsequent hurried swearing-in did nothing to allay the fears that had been raised about the results.
Before and after the announcement of the final results, a number of people came forward to present evidence which indicated that the final result announced by ECK may not have been accurate and therefore subverted the will of the people. Those who thought that the results had robbed them off their democratic choice had already begun to express their anger and frustration even before the final announcement and this has now culminated into national crisis of a scale never imagined in this country. Suddenly, this became a traumatic incident that we had all individually contributed to through our voting as well as the debates we were having and the inner sentiments we harboured about the possible outcomes. This personal involvement by virtually every member of the populace perhaps explains why the circumstances have gripped the nation the way they have.

A number of conclusions can be made of the election process and its impact:

• Individual Kenyans had invested heavily in the process and therefore had a stake in the results. Many people remain baffled by the turn of events and wonder how their positive contribution by voting could have led to such negative and painful outcome for them.
• The conduct of the ECK and party agents both and constituency tallying centres and at KICC left a lot to be desired and considerably undermined the credibility of the results;
• Flawed as it was, the final result indicated that no one candidate received the popular mandate of the majority of Kenyans. Each of the leading candidates had more Kenyans voting AGAINST them than those who voted FOR them;
• Fundamental issues remain that need to be addressed if Kenyans are to restore faith in the electoral process. Such issues include a re-tallying of the votes, amendment to electoral laws and regulations, as well as constitutional reforms to address the shortfalls identified.

As a search for reconciliation continues, the priority should be placed on:

• Putting an immediate stop to the violence and destruction of property following the flawed elections:
• Bringing closure to the election through a re-tallying of votes or otherwise agreeing on the result;
• Administrative, legal and constitutional changes to address the institutional weaknesses identified by the election fiasco.

1.3 The case for negotiation for Kibaki and Raila

Both President Kibaki and Hon Raila, as well as their parties appear to have taken a hard-line position that does not lend itself to dialogue and a negotiated settlement. However, both need to realize that they have a major stake and interests that make it necessary for each of them to come to the negotiating table at the earliest opportunity. That is what we, as citizens are calling for.

As the incumbent, President Kibaki has a lot to lose from the present circumstances. To start with, his five year legacy has gone down the drain overnight. Kibaki promised improved economic performance, the events of the last few days will see the economy perform dismally leading to lower domestic revenues and growth rate worse than what we saw during the worst Moi years. Kibaki promised democratic empowerment but the impact of the post election situation is a reversal of virtually every gain made over the last five years – more than half the population feel disenfranchised and the gains made in opening up the democratic space have been eroded – especially media freedom. Kibaki promised national unity but the country is now more divided than it has ever been at any other time in our history. In addition, Kibaki has identified himself as a champion for business but the current circumstances will see most of the business constituents suffering considerable losses which could lead to their reconsidering support for the president. Some sectors are already projecting significant losses, including total collapse of some the sectors. The Kibaki Government came in with the agenda of restoring international respectability for Kenya but the current situation has dented the country’s image almost beyond repair as the world watches horrific images emanating from the country on virtually every international media. Above all, this being Kibaki’s last term, however long that lasts, it is in Kibaki’s interest to leave the country on a firm footing for greater development as envisioned in Vision 2030 which PNU run on rather than have the dubious distinction of being the president who led Kenya to disintegration and failure. The case for negotiation for President Kibaki is predicated on how he wishes to fulfill the interests of his core constituent and the legacy he leaves behind. This has a very personal implication for the president. How this crisis is resolved could very well determine whether President Kibaki is able to live in this country after his exit from State House – and the timing of such exit.

On his part, Hon Raila Odinga also has a strong case to come to the negotiating table. He mobilized considerable resources from his financiers and backers on the promise of good governance but what we are seeing now cannot be described does not qualify as good governance in any shape or form. Hon Raila may argue that he does not hold the instruments of power to deal with the situation and that the responsibility lies with President Kibaki. However, Raila cannot altogether wash his hands off the situation and yet continue to claim legitimate leadership. In his final submission to voters, Raila was categorical about various things that “he will not do”. Key among these was the promise not to divide Kenyans on whatever basis. The current scenario is definitely one that a Raila government would not do. Raila needs to climb on the same platform and show Kenyans that indeed he will not watch as Kenya disintegrates along class, ethnic and political divides. He has a high stake and interests that need to be protected through a negotiated position.
Hon Raila promised the business community, including the Nairobi Stock Exchange that his leadership would not introduce a level of instability that would undermine the gains so far made. Hon Raila needs to come forward and demonstrate that he can stem the loss to the business community rather than exacerbate it in his singular pursuit of power.

Hon Raila also went to great lengths to allay the fears of the Kikuyu that they had nothing to fear in his leadership – this is not what is being experience on the ground and Hon Raila needs to come forward in a statesmanlike and presidential manner to demonstrate that, if indeed he is the legitimate leader he is, as confirmed by over 4m Kenyans, that he can use this popular mandate to stop the violence rather than being seen to be sacrificing the community in resolving the disagreement with President Kibaki. If his leadership credentials are to remain intact, Raila has a moral responsibility to stop the violence and contribute to restoring order in the country.

Hon Raila’s campaign was supported by many stakeholders who hoped to reap the benefits of good governance. Raila needs to participate in a negotiated settlement and be a participant in delivering the good governance he promised. This will enable his backers to reap the dividends they anticipated from his contribution to positive change in the country.

Ultimately, Raila’s campaign was run on a platform of ‘Transformative leadership’, a complete break with the poor governance that we have experienced since independence and which has resulted in the impoverishment of the bulk of the population. This promise resonated well with the population and in particular the youth and should be safeguarded if Hon Raila is to have claim to national leadership in future. As matters stand now, the country is quickly degenerating into a basket case and Raila or any other leader will not have a country to speak of that can be transformed. History will judge any of our present leaders very harshly if they are seen to have stood by as spectators as the country disintegrated. Depending on how he deals with the situation, Hon Raila could also find himself having to seek a new abode outside the country and may very well end up as Kibaki’s neighbour in some African country that is willing to receive both of them.

Hon Raila’s case for negotiation is predicated on the promise of transformation and real change as well the hope he offers the emerging generation and in particular the youth. These are the ones who have the highest stake, and therefore the most to lose from a disintegrated Kenya. This core constituent will demand that Raila actively engages in resolving the current crisis and put the country on a path to a positive future.

1.4 The pathways to, and consequences of failure

Each of the protagonists could maintain their hard-line position and this is a sure recipe for failure with far reaching consequences for them as individuals and for Kenya as a country.

President Kibaki and PNU’s position is that they won the election and anybody who is dissatisfied with the results should go to court. This position fails to recognize the anomalies in the election process which have been highlighted by various groups. It also fails to recognize that more than 50% of the voters did not vote for the president and that PNU has less than 25% of the parliamentary seats.

It appears that the President and PNU are confident that they can weather the current insecurity and vandalism – for that is what they see it as. Followed to its logical conclusion, this could mean that the president could cobble together a coalition government and continue to run the country in a ‘business-as-usual’ manner.
On Hon Raila’s and ODM’s part, their hard-line position is that they won the election and it was stolen from them. Their agenda now is to take back what is rightfully theirs and get President Kibaki to concede and somehow handover power to Raila and ODM. Short of this, ODM will continue with a protest campaign until the Kibaki Government gets to admit the injustice that has been committed against Kenyans or is forced out of office through mass action.

Raila and ODM’s position does not appear to take cognizance of the voting patterns – that again more than 50% of the population did not vote for Raila and that more than 50% of the parliamentary seats were won by other parties other than ODM.

If both camps maintain their hard-line positions, this is a recipe for failure. In order to understand how these hard-line positions could still prevail, we need to identify the key stakeholders on each side. On both sides of political divide, we have Kibaki/Raila at the top, there is the PNU top leadership or ODM Pentagon, key backers, and financiers whose main concern will be their interests - that the country is able to continue to run and that they can recoup the economic gains from the support they have provided to the campaign. This category is unlikely to accept any settlement that does not provide them the opportunity to reap the benefits of their support – and that means their man has to be on top, for this category it is all or nothing! However, if their man is not able to deliver, they may quickly ditch him and seek the next best alternative to deliver the gains that they seek. This is one of the sources of the real risk that both Kibaki and Raila may find themselves unwelcome in this country if they are unable to come to a negotiated settlement.

Then there are the newly elected parliamentarians who are torn between holding out until they can realize their expectations of positions in Government, or accelerating their swearing into parliament to enable them to replenish their exhausted finances. On the one hand this group could prolong the crisis but it is more likely that they may want a quicker settlement and one that does not require them to go through the election process again. This could encourage Kibaki to believe that he can form a coalition Government from a cross section of parliamentarians, especially since the new Politic Parties Act is not yet operational.

At the bottom of the pyramid on both sides of the divide are the citizens who are being used as pawns and facing the brunt of the crisis. For the civic aware, the resolution will require a commitment on both sides to build a robust political institutional framework that will guard against any future crisis. For ordinary citizens, their main quest is an improved quality of life and ironically, the crisis may present the bulk of the poor with the opportunity to access the resources they have been denied for so long. Whether it is through rent-seeking road blocks, looting or invasion of the properties of the rich – this could turn out to be a class crisis of such proportions than could ever have been envisaged by the protagonists.

If both sides of the divide dig in, President Kibaki could form a coalition Government with ODM Kenya and other smaller parties and use state might to overcome the resistance from ODM. This would prove to be a hugely unstable environment with little prospect of the economic gains expected by his core supporters. Ultimately, President Kibaki could end up impoverishing the country even more and the result would be his alienation even by his closest supporters. On this pathway, failure would mean that the country continues to suffer disruption, economic growth comes to a halt or even decline, and the country degenerates even further into chaos. President Kibaki would not last the full five-year term in State House and it may even be untenable for him to remain in the country. This scenario would cost all stakeholders on Kibaki’s side – him personally, his key backers and financiers, the members of parliament in his Government and ultimately the general population. The impact of such state failure would be far reaching and take considerable time to restore any semblance of normalcy.

On their part Raila and ODM could maintain their hard-line stance and continue with mass action to force Kibaki out of power. For such a strategy to succeed, Raila and ODM have to be prepared to continue to stretch the security forces on many fronts, including bringing the country to the brink of civil war, until they make the country so ungovernable that they create the opportunity to take over the presidency. Given the current situation, that could take anywhere between six to over 24 months. Business comes to a standstill and we have to go out begging for resources. This could also result on a strain on regional economies to a point of near collapse – however, our neighbors will not sit back and watch as their economies are damaged and raising new political and governance issues for their own countries. On its part, the international community will continue to be concerned as they shoulder some of the responsibilities for Kenya’s failure, including having to cater for large numbers of displaced people as well as the disruption in the regional economies, some of them still very fragile. This could result in sanctions against Kenya and being seen more as a pariah state.
The result of such a campaign could mean a number possible scenarios: short term success for Raila and ODM, but long-term failure for Kenya as the country we know today; long term failure for ODM and Kenya as a country; short-term failure for Kenya but long term success as the country is rebuilt on a more firm political foundation. The conviction by ODM that they could deliver this long-term success could result in a more drawn out conflict. However, the success of such a long drawn out campaign would depend on the appetite that the key backers, financiers and citizens have for extended losses and suffering. It is unlikely that any of these stakeholders would withstand extended hardships and they may very well turn against Raila and ODM. This could mean immediate failure for Raila and ODM as Kenyans take back the agenda. In such an eventuality, Raila may also find his stay in the country becomes untenable.

1.5 Possible negotiation agenda

Once the protagonists are convinced to come to the negotiating table, the following could form part of the negotiation agenda:

1. Beginning the national healing - bring an end to the violence – cooperative effort by all parties including bringing on board the post-serious incident therapy professionals.
2. Trust and confidence building measures for the political players need to be instituted
3. Election closure
4. Composition and duration of an Interim Government/ Government of National Unity.
5. Priority agenda for the Interim Government/ Government of National Unity (take account of some of the key issues that have accentuated divisions);
6. Administrative, legal and constitutional reforms before the next election;
7. Presidential or National Elections after Interim/ GNU
8. Global agenda to restore international respectability

1.6 Post-crisis negotiated scenario – a new dawn

If handled with sobriety and enlightened leadership, Kenya can still emerge from the current situation as a strong nation that has its pride of place among nations of the world. We can all return to one common purpose, one that unites us together in the development of our nation:

To earn and uphold our pride of place among nations as a sovereign and remarkable country of outstanding people enjoying a high quality of life

The Kenya that emerges from the present circumstances could be thus described:

• To earn and uphold our pride of place among nations: We are competitive; We have a vision of where we want to be; all our efforts are focused on that vision; We are proudly Kenyan. This pride of place is ‘earned’, we have put specific effort to win it.
• Kenya as a sovereign country: We are patriotic and proud to be Kenyan. We govern ourselves and safeguard our territorial integrity
• Kenya as a remarkable country: we welcome all to celebrate our natural endowment; we are well-governed; we achieve amazing results despite the challenges have faced and continue to encounter; we deliver remarkable investment returns; We will be known for high standards and diligence globally; we will be talked of because of what we have achieved, because of our level of discipline and respect for the rule of law, because everything works!
• Outstanding people: our diversity is our strength and wealth; our culture and values stand out; we have well developed human resource, and place a premium on innovativeness; our people are recognized for excellence in whatever we do, wherever we are in the world.
• High quality of life: justice and equity, majority live in ‘Maslow’s’ third tier; we welcome all well-meaning citizens of the world to come and enjoy this quality of life.

The major hallmarks on the new Kenya would be:

1. Democracy thrives
2. Respect for the rule of law
3. A robust political institutional framework
4. Economic growth and improved quality of life
5. Regional and International respectability.

1.7 Sharing and dissemination

This framework will be reviewed and amended by the group before a final version is agreed and signed off. The signed off version will then be presented to major actors including:

• The key protagonists;
• Other political actors
• Civil Society
• Business and professional associations
• The Media
• International development partners

It is hoped that the framework would be widely discussed and guide the path to reconciliation and healing from the present circumstances. We remain positive and hopeful that Kenya has the wherewithal to competently manage the present crisis and emerge a stronger nation.