Blog

With so much effort going into making allegations of electoral manipulation, there seems to have been little time for Azimio leaders to reflect on what may have gone wrong and why.
Published
on
By
In the weeks leading up to Kenya’s 2022 presidential election I wrote a piece that attempted to explain why Raila Odinga was not winning by a landslide and sent it in to the Elephant. It started by pointing out that given that Odinga was a long-term opposition leader who enjoyed strong support among the country’s marginalised and disenchanted communities, he might have expected to win the election at a canter after receiving the backing of President Uhuru Kenyatta. After all, the “handshake” between the two leaders appeared to have removed one of the main barriers to Odinga winning a general election, namely the state machinery that he and his supporters have consistently argued has been used to lock him out of power.
Yet despite the Azimio coalition bringing together the sitting president and the country’s most powerful opposition leader, Odinga did not seem to be running away with the election. The feeling I got from different parts of the country was that many voters were disenchanted with the handshake and the prospects of an Odinga/Kenyatta alliance. Opinion polls also suggested that the campaign was struggling to get into first gear, and that his main rival, William Ruto, retained an advantage. So I sat down to try and explain why, and wrote a piece about the four challenges that I thought his campaign faced, and why they meant he could lose the popular vote.
Then something changed.
The opinion polls began to shift. According to newspapers such as the Daily Nation, Odinga first went into a slight lead and then began to pull away. In one influential poll released just six days to polling day, the Daily Nation put Odinga 8 per cent ahead of Ruto. I distrusted these polls for a number of reasons: a nationally representative private poll my research group had commissioned put the election much closer, with Odinga leading by just over 2 per cent; telephone-based and computer-assisted polls would ignore the poorest members of society, who might be more likely to support Ruto’s “bottom up” economic message; some respondent’s may have been worried about saying they would vote for a candidate not favoured by the president; and, the media had tended to favour Odinga in its coverage. But as more and more polls came out giving Odinga a large lead, my belief in my argument waned. Maybe I had got it wrong, and the Azimio campaign had found a way of overcoming its own contradictions.
I soon lost confidence in my argument and, not wanting to publish analysis that I wasn’t sure about, I wrote to the editors at the Elephant asking them to shelve the piece.
In the wake of the announcement that William Ruto had won the presidential election with 50.49 per cent of the vote, my mind has consistently returned to the piece, because I think it may shed some light on the outcome. The results, of course, have been rejected by Odinga’s team which has petitioned the Supreme Court to try and overturn Ruto’s victory. But even if Kenya heads to a “fresh” election, or a run-off, it seems clear that Azimio struggled to excite and mobilise the electorate – including in his “home” counties. Whatever this was, it was not a resounding victory for Odinga and the “handshake”.
So in the hope that it might help those seeking to understand what happened in the elections – and because the analysis will still be relevant if the country requires a second presidential poll – I decided to publish the initial piece. The main analysis – which starts in the first section below – remains untouched. All that has been changed is this introduction, with a new conclusion inserted at the end of the piece to connect the discussion to the actual election results.
My argument ran as follows. Odinga’s campaign suffered from four major challenges: the fact that he lost popular trust following the handshake with Kenyatta, the president’s own unpopularity among key communities and his inability to deliver his own community, the mixed messages being sent out by the campaign, and a complacency that the election was in the bag. These weaknesses threatened to undermine his support not only in competitive areas such as central Kenya, but also in his own heartlands. This might not have mattered against a weak opponent, but Odinga was facing one of the most effective strategists in Kenyan politics. Ruto had begun to lay the groundwork for the 2022 campaign well in advance of 2017, ensuring that his allies were elected in key areas in that year’s general elections. In addition, through his “hustler” narrative and critique of privileged “dynasties” Ruto had hit upon a message that resonated with a cross-section of Kenyans suffering significant economic hardships.
If Odinga’s campaign did not resolve its internal contradictions, I argued, Ruto could well emerge victorious.
From this point onwards, I reproduce original article.
Odinga’s reputation as an opposition stalwart was hard won and well deserved. He played a key role in helping Mwai Kibaki to mobilise support ahead of the 2002 elections, securing the country’s first ever transfer of power at the ballot box. Odinga then broke from President Kibaki when it became clear that he had no intention of either pursuing constitutional reform or keeping the promises he had made to his allies. Having defeated Kibaki in a constitutional referendum that would have taken the country backwards, he continued to campaign for reform.
Ruto had begun to lay the groundwork for the 2022 campaign well in advance of 2017, ensuring that his allies were elected in key areas in that year’s general elections.
In this way, Odinga played a major role in the introduction of a new constitution in 2010, even if it took the 2007/8 post-election crisis to generate the necessary political will to change the rules of Kenya’s political game. With the introduction of a Supreme Court and a system of devolution that created 47 new county governments, this represented a major democratic breakthrough that has profoundly shaped the country’s politics ever since.
Despite serving as Prime Minister in the power sharing administration that ushered in the new constitution, Odinga’s reputation as an opposition leader was further cemented in the years that followed. On the one hand, he was declared the loser in a series of close and often bruising election defeats in 2007, 2013 and 2017, which were made even harder to take by the fact that each time he was convinced he had been cheated. On the other hand, Odinga increasingly refused to play politics by the rules laid down by President Kenyatta, boycotting the “fresh” presidential election in 2017 and then refusing to accept the legitimacy of Kenyatta’s victory – ultimately being sworn in as the “people’s president” by his supporters in a controversial ceremony in Nairobi.
Against this backdrop, the “handshake” between Odinga and Kenyatta that ended their long-running standoff on 9 March 2018 took many of his supporters by surprise. Moving into government, and securing no immediate concessions in return for calling off his protests, made it look like Odinga had given up his fight for political change. Worse still, it opened him up to accusations that he had sold out those who had made great sacrifices to fight his corner, prioritising his own wealth and security ahead of their dreams.
The impact of this move on Odinga’s reputation continues to be underestimated, even today. At the elite level, it led to figures such as public intellectual and political strategist David Ndii abandoning Odinga and throwing their weight behind Ruto on the basis that he represented the only credible challenge to the corrupt ruling clique. But perhaps the biggest impact was among ordinary Kenyans. In a nationally representative survey conducted in mid-July 2020, only 18 per cent of respondents said that they trusted Odinga “a lot” and 42 per cent said “not at all”. This decline was not only felt among groups that have historically not associated with Odinga such as those who live in central (51 per cent “not at all”), it also extended to western (45 per cent) and even Nyanza itself (31 per cent).
Controversial primaries or “nominations” don’t help this situation. As I wrote at the time, discussing the winners and losers of the process, “Odinga—and his ODM party—have come out rather bruised. They have been accused of nepotism, bribery and of ignoring local wishes. This is a particularly dangerous accusation for Odinga, as it plays into popular concerns that, following his “handshake” with President Kenyatta and his adoption as the candidate of the “establishment”, he is a “project” of wealthy and powerful individuals who wish to retain power through the backdoor after Kenyatta stands down having served two-terms in office.”
What is particularly striking about the trust numbers from July 2020 is that at the time the poll was conducted – the numbers shifted in later surveys – trust in Odinga lagged considerably behind William Ruto. According to the poll, only 23 per cent of Kenyans trusted Ruto “not at all” and this figure was particularly low in key battleground regions such as central (19 per cent). This represented a remarkable turnaround for Ruto – who was once found by a survey to be the most feared leader in Kenya – and meant that Odinga started the 2022 election campaign from a position of weakness.
The reputational fallout from the handshake has been reinforced by the strong support Odinga’s candidacy has received from President Kenyatta and his allies. Not only is the president visibly in Odinga’s corner, but his allies in the ruling party are active parts of the Azimio coalition. This has created the perception that Odinga is being used as a stooge by the Kenyatta family and their clique to protect their interests in the next government.
Such an accusation would not have been so damaging in the past, but Kenyatta’s credibility has fallen in the last five years. Against the backdrop of a struggling economy and rising unemployment and poverty during the COVID-19 pandemic, the president’s failure to deliver on key election promises, or to reduce corruption, has created the perception that he and his government are part of the problem rather than part of the solution. This situation is only likely to get worse over the coming months, as the fallout from the war in Ukraine and the food shortages in the region push up the prices of essentials. Petrol prices are already set to be the highest in Kenyan history.
The reputational fallout from the handshake has been reinforced by the strong support Odinga’s candidacy has received from President Kenyatta and his allies.
Odinga’s dependence on Kenyatta for financial and state support is thus as much of a curse as it is a blessing. At a moment when many Kenyans are desperate for change, Odinga’s alliance with Kenyatta makes him look like the continuity candidate.
Yet this is not the worst of it. Being seen to be a “project” or a “puppet” for other interests can be politically fatal in Kenya because it implies that a leader cannot be trusted to deliver to their own communities. Odinga should know this well, because it was in part this accusation that undermined the efforts of Musalia Mudavadi to mobilise the support of his Luhya community in the 2013 general election, and so enabled Odinga to dominate the vote in western province. Mudavadi’s career has never fully recovered.
Odinga may also gain little from Kenyatta’s support in central Kenya itself. At present he is losing the region in most credible opinion polls despite Kenyatta’s support, and it is unclear whether Kikuyu leaders can really rally support for a leader who they have demonised repeatedly for decades. Kenyatta is also highly unpopular in parts of central Kenya himself – in a survey our research team conducted in July 2022, 21 per cent of Kikuyu, Embu and Meru voters said that Kenyatta’s endorsement made them less likely to vote for a candidate, compared to 17 per cent of Luos.
Yet despite this, Azimio has done little to counter the idea that Odinga is not his own man. Instead of creating clear blue water between the two leaders when setting up the new coalition, Azimio appointed Kenyatta as its chairman. And by using Kenyatta’s speeches as a vehicle to demonise Ruto and so try and so limit his support in central Kenya, Azimio has consistently reminded Kenyans that Kenyatta is a central part of the Odinga team. This created a gaping open goal, enabling Odinga’s opponents to score numerous points at his expense. Most notably, Ruto – always one to find a punchy phrase to sum up popular frustrations – has taken great delight in warning that if Odinga were to win, Kenyans would suffer a “remote-controlled presidency”.
In the past, Odinga’s messaging was powerful and clear, but it is now unconvincing. This is partly because his campaign has to cope with the internal contradictions of being an opposition leader backed by the establishment. But it also reflects muddled thinking and a failure to capture the public imagination.
Back in the day, you knew where you were with an Odinga campaign. He was in favour of constitutional reform, devolution, and shifting power and resources in the direction of the country’s economically and politically marginalised ethnic groups. This gave him a clear brand and an obvious set of slogans. Things have looked rather different since 2010, however, and it is important to realise that the challenges facing Odinga have a history that predates the 2022 general elections.
Being seen to be a “project” or a “puppet” for other interests can be politically fatal in Kenya because it implies that a leader cannot be trusted to deliver to their own communities.
In one respect, Odinga was a victim of his own success. The achievement of a new constitution complete with devolution took away one of his main demands. Thereafter, Odinga’s team has struggled to find as effective a framing device that would resonate with as wide a range of communities. In post-2010 elections, Odinga has presented himself as the defender of the new arrangements – the only leader who could be trusted to make sure that devolution was protected and extended. In some ways this made sense – devolution was very popular – but as all good politicians know, promising to make something a bit better is never going to excite voters as much as promising something completely new and game changing.
Campaigning on the same issue also risked making Odinga look like a one trick pony – something that his then Jubilee rivals took full advantage of. In 2013, for example, Jubilee leaders sought to tap into popular excitement at the new technological opportunities transforming the country by claiming that they were “digital” while Odinga was “analogue”.
The 2022 campaign has brought with it even greater challenges. By presenting himself as the opposition candidate on the side of Kenya’s hard working “hustlers”, Ruto has appropriated Odinga’s approach and updated it for a new generation. At the same time, the closer relationship between Odinga and Kenyatta has generated suspicions that an Azimio government would predominantly benefit their Kikuyu and Luo communities, respectively. The obvious implication of this is that an Odinga presidency would preserve rather than challenge the greater economic and political opportunities that communities that have held the presidency currently enjoy. Along with Odinga’s damaged reputation, this has made it much harder to craft a message that resonates with communities that have never tasted power – i.e. with Odinga’s historical support base.
These issues have led Odinga to make a series of speeches that have been couched in warm tones, identifying important lessons from Kenya’s past without presenting any clear blueprint for how to navigate its future. Such narratives no doubt evoke warm memories, in particular the role that Oginga Odinga and Jomo Kenyatta – Raila and Uhuru’s fathers – played in the nationalist struggle. But they are unlikely to excite the county’s youth, who are too young remember this history, have borne the brunt of recent economic downturn, and represent more than three-quarters of the population.
These challenges could have been overcome by a creative campaign that highlighted past government failings and promised to put them right. But Azimio has gotten itself in such a mess that such a campaign has not been possible. There are two aspects to this. First, it is unclear who is actually in control of Odinga’s campaign. Strong rumours suggest that powerful figures around Kenyatta – most notably his influential brother Muhoho – have as much sway as long-time ODM leaders. It is not hard to see how such a situation would lead to mixed messages and undermine Odinga’s ability to position himself against Kenyatta’s legacy. While the president is understood to have informed Odinga’s team that he understands that they may need to distance his candidacy from the current government, others around Kenyatta are said to be extremely sensitive about any criticism, binding the hands of Odinga’s speech writers.
As all good politicians know, promising to make something a bit better is never going to excite voters as much as promising something completely new and game changing.
Second, the Azimio coalition has struggled for unity and purpose. The difficulty of integrating its numerous parties into a common organization and slate of candidates was so great that it proved to be easier to change the law to allow coalitions to be registered as parties than to create a more unified political vehicle. Ruto’s Kenya Kwanza alliance is not without these challenges, but the greater number of leaders and parties involved on the Azimio side mitigates against a clear and coherent structure and leadership. As Pamoja African Alliance (PAA) spokesperson Lucas Maitha put it, as his party tried to quit the coalition: “There is a lot of confusion in the coalition today. Nobody knows who is calling the shots in Azimio”.
The lack of integration within the coalition also means that it risks fighting against itself when it comes to some downstream races for Governor, Senator, Member of Parliament and MCA. Kenyans don’t have to look back far in history to see the impact that this kind of fragmented campaign can have. It was exactly the same set of challenges that undermined the campaign of President Kibaki’s Party of National Unity in 2007, and led to what was effectively the “incumbent” grouping losing control of the National Assembly.
You might have thought that the challenges outlined above would lead to significant changes to the campaign structure and a real sense of urgency. Instead, what is striking is the apparent complacency within the Azimio coalition. This appears to be rooted in two assumptions. The first is that Kenyan politics is still essentially an ethnic census, in which success simply requires you to recruit the most “Big Men” (or “Big Women”). The second is that whichever candidate has the backing of the state is bound to win. On that basis, Odinga cannot lose.
But these are flawed and deeply dangerous assumptions. Many of the leaders behind Odinga have no capacity to direct the votes of the communities they claim to lead. Odinga gained ground on Ruto when other leaders such as Kalonzo Musyoka officially joined his side, but the likes of Gideon Moi and Charity Ngilu bring few votes with them. Ruto has also demonstrated a remarkable ability to penetrate the support base of his rivals, and is currently the most popular candidate among the Kikuyu, turning assumptions about ethnic voting on their head.
The assumption that the state can simply deliver an election is also problematic. Spending more money doesn’t mean you necessarily get more votes – especially if the money is seen to be tainted by corruption. Using the security forces to intimidate rival voters or applying pressure to the electoral commission can be effective, but if Odinga remains behind in the polls, any blatant attempt to manipulate the process would return Kenya to the political crisis of 2007/8. Moreover, with the emergence of an assertive Supreme Court that just rejected Odinga’s proposed “Building Bridges Initiative” constitutional changes, even these more cynical strategies can no longer guarantee victory.
Spending more money doesn’t mean you necessarily get more votes – especially if the money is seen to be tainted by corruption.
Azimio leaders therefore have no room for complacency. Yet that is just what they are demonstrating.
The original text ends here; what follows is a reflection on the official results of the election, and what they tell us about the accuracy of the foregoing arguments.
It is too early to know what the 2022 election results will look like after a Supreme Court petition, and correlation is not causation, but some of the results suggest that the intuitions outlined above may have been on the money.
Perhaps the most striking thing about the results was the strength of support for Ruto in Central Kenya. Most notably, neither Kenyatta nor Odinga’s running mate Martha Karua proved able to mobilise much support in the region. While Odinga performed better than he had done in 2017 – demonstrating that he did gain something from his chosen alliances – Ruto convincingly defeated him in Kenyatta and Karua’s home polling stations. In Murang’a County, Ruto secured over 343,000 and Odinga just over 73,000, with a turnout of 68 per cent. In Nyeri, Ruto won with 272,000 votes and Odinga just 52,000, on another 68 per cent turnout. And in Kiambu Ruto polled a massive 606,000 to Odinga’s 210,000 on a 65 per cent turnout.
Much less commentary has focussed on the elections in what are usually thought of as Odinga’s home areas, in part because much of the Azimio accusations of electoral manipulation have focussed on central Kenya, but there is an interesting story to be told here as well.
Things don’t look that damaging for Odinga if you just scan the numbers quickly without putting them in context. In Homa Bay, Odinga polled almost 400,000 votes and Ruto got under 4,000 on a 74 per cent turnout. Odinga also won overwhelmingly in Siaya (371,000 to 4,000) on a 71 per cent turnout and in Kisumu (420,000 to 10,000) on a 71 per cent turnout. These landslide victories are the stuff of politicians’ dreams, and turnout percentages in the 70s look healthy compared to most parts of the world.
Indeed, these results look pretty good until you remember that these counties are in Odinga’s electoral base, where he was hoping for the kind of overwhelming wall of support he received in previous elections. In 2013, turnout in Nyanza was 89 per cent. Homa Bay recorded 94 per cent, Siaya, 92 per cent, Kisumu 90 per cent – an average of around 20 per cent higher than 2022. Moreover, comparing the 2022 turnout in these areas with Ruto’s heartlands reveals striking differences. In Bomet, Ruto won 283,000 votes to Odinga’s 13,000 on a turnout of 80 per cent. In Elgeyo Marakwet, he secured 160,000 to Odinga’s 5,000 on a 78 per cent turnout. And in Kericho he polled 319,000 to Odinga’s 15,000 on a turnout of 79 per cent. Overall, the four counties in the country with the highest turnout all went to Ruto.
Odinga also suffered from a similar drop in turnout in other areas that have historically supported him. While he won the vote at the Coast, in a number of counties it was much closer and turnout collapsed. In Mombasa, Odinga polled 161,000 votes to Ruto’s 113,000 on a turnout of just 44 per cent. Azimio leaders will complain that this was due to the last minute cancellation of the governorship election, and that that may have had an impact, but Mombasa was far from the only county in the Coast to see a decline. In Kwale, it was 125,000 for Odinga and 52,000 for Ruto on a 55 per cent turnout. Back in 2013, turnout had been 66 per cent in Mombasa and 72 per cent in Kwale. While turnout declined in every county in 2022, the route to victory planned by the Odinga team assumed that they would be able to at least match his 2017 performance in his home areas now that he was backed by the power of the state.
Taken together, these figures suggest a common story. Potential Azimio voters in all three regions were unpersuaded by the handshake. In central Kenya, former Kenyatta supporters were not prepared to accept Odinga and instead flocked to Ruto. In Nyanza and the Coast, some Odinga supporters, disenchanted by his alliance with Kenyatta stayed at home, denying him the numbers needed for victory. Had Nyanza and the Coast turned out as they have done in the past, Odinga would not just have secured a second round run-off, he would probably have won outright.
Odinga also suffered from a similar drop in turnout in other areas that have historically supported him.
This is not to imply that Ruto did not earn his victory – he campaigned hard on a message cleverly designed to profit from Odinga’s difficulties, and many of the votes he won were not simply negative rejections of the handshake but a vote for change. But that message was so effective against Odinga – the archetypal “change” candidate – precisely because the handshake and his alliance with Kenyatta undermined his ability to persuade potential supporters that his presidency would deliver anything different to the last eight years.
This core challenge will remain if the presidential election needs to be re-run, and even now it seems like key lessons are not being learned. With so much effort going into making allegations of electoral manipulation, there seems to have been little time for Azimio leaders to reflect on what may have gone wrong and why. Even if those around Odinga believe they were hard done by in Central, it doesn’t seem plausible that their performance was undermined by manipulation in Nyanza, an area in which Ruto’s team has had very little presence. Yet there seems to be little recognition that Azimio may have simply have gotten its tactics badly wrong.
If the campaign strategy remains the same, with the added challenge of having to re-mobilise citizens who are tired of the election and may blame Azimio for further disruption on the basis that they refused to accept defeat, the outcome of a “fresh” election is unlikely to be different to the first.
The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.
Your support helps protect The Elephant’s independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.
Donate Now
Nic Cheeseman (@fromagehomme) is Professor of Democracy and the editor of www.democracyinafrica.org
Supreme Court Ruling on 2022 Kenyan Presidential Poll Challenge
Of Election 2022, the EAC And Completing the Circle
Elections: A Major Obstacle to Democracy in Kenya
Four Reasons Why Ruto’s Cabinet is Unconstitutional
Elections and the Frustrated Young Voter
Kenya’s 2022 General Election: A Biting Cold Wind Against Our Colonial Nakedness
The Court set out neutral and objective framework principles to guide its adjudication of the case, reasoned closely and narrowly within those principles, and set out its chain of reasoning in a judgment on record.
Published
on
By
To a comparative constitutional lawyer, Article 140 of the Kenyan Constitution is an interesting provision: it sets out, in some detail, the legal route by which a dispute around a presidential election is to be resolved. Read with Article 163(3)(a), it clothes the Supreme Court of Kenya with the exclusive prerogative – as well as the duty – to hear and decide a challenge to a presidential election, within fourteen days. Article 140’s mandatory and time-bound language precludes the Supreme Court from taking two paths, which judiciaries often take, to avoid entanglement in politics: declining jurisdiction to hear a dispute, or simply putting off a decision until the case becomes infructuous. Rather, Article 140 envisages that the Supreme Court will be the first – and final – arbiter of the most contentious of all political disputes.
This puts the Supreme Court in something of a bind. A large part of judicial legitimacy flows from a Court’s ability to stay out of political disputes, or to carefully negotiate political terrain when such questions are thrown up before it. The histories of independent judiciaries around the world have shown us that if a Court deals politicians too many setbacks, a backlash will not be far behind.
This bind is worsened by two things. The first is that complicated electronic technology has become integral to modern-day elections, and disputes around elections will therefore require the Court to assess competing claims around technology, presented by duelling sets of experts. This is a fraught exercise at the best of times, and becomes particularly fraught when a presidential election turns on the outcome. The second – and related – point is that many of the issues that arise in a presidential dispute will necessarily involve high degrees of judicial subjectivity. It is a truism that there is no such thing as a “perfect election”. In any election held at scale, there will be machine errors and human errors – somewhere, somebody will make a mistake, a computer will break down, a rule will be misunderstood or wrongly applied. There is no bright line for determining the point at which these atomised errors coalesce into something that undermines the integrity of an election. It is a matter of judgment, and like all matters of judgment, subject to attack.
To negotiate this bind, a court that is given the kind of task that the Supreme Court of Kenya has been given under Article 140, can do the following things: (a) articulate a set of objective and neutral standards concerning questions of evidence, and the threshold required to invalidate the results of an election; (b) hew closely to the submissions and evidence provided by the parties to the dispute; and (c) set out detailed and transparent reasoning for its decision, so that the losing party has the right to feel aggrieved, but does not feel cheated.
The unanimous judgment of the seven judges of the Supreme Court of Kenya in Odinga and 16 Others vs Ruto and 10 others – the challenge to the 2022 Kenyan Presidential elections, and the certification of William Ruto as the president-elect – reveals both the bind, and the Court’s attempt to negotiate it through the principles set out above. Faced with a series of allegations about the conduct of the 2022 presidential elections – ranging from hacking to physical manipulation of forms, and from voter suppression to technological breakdown – the Court framed its response along two lines: a standard of evidence and a standard of invalidity. With respect to the first, the Court held that allegations of impropriety would have to meet an “intermediate standard” of “clear and cogent evidence” – that is, something between the civil law standard of “balance of probabilities” and the criminal law standard of “beyond reasonable doubt” (the exception to this was when allegations of a criminal nature – such as fraud – were made in the course of the election petition).
With respect to the second, the Court held that where the standard had been met, the next question was: did the improprieties reach a level where they materially impacted the outcome of the election? To an extent, this is a counterfactual question that is difficult to answer with certainty, especially in close elections; what would have happened if the improprieties had not taken place? But it is also an essential question; if an election were to be set aside on the basis of any impropriety, then we would be having election re-runs until the end of time. The standard of invalidity is, to an extent, a compromise, but a necessary one.
With this framework in mind, the Supreme Court’s analysis can be divided into two buckets. In the first bucket were allegations (such as fraud, switching of Forms 34A, and so on) that the Court found were not proven to the required standard. Importantly, in making this assessment, the Court primarily relied upon the competing affidavits of the parties (including upon internal contradictions within some of the affidavits). This is the second principle outlined above: as the Court stressed, in adjudicating the case, it could not travel beyond the quality of evidence provided to it by the respective parties. In the second bucket were allegations (such as printing errors and failure of voting kits) where the Court found that there had been lapses, but that it could not be shown that these lapses had materially altered the outcome of the election.
Perhaps the most significant part of the judgment, however, is the third principle. During the course of the hearings, the Court ordered a scrutiny of the IEBC’s servers – under the supervision of the Court’s registrar – in order to cross-check the veracity of some of the allegations. The results of the scrutiny report are discussed extensively in the judgment, with a candour that is not often found in the adjudication of such disputes elsewhere in the world. Indeed, on most of the issues that it framed, the Court set out its reasoning process – including mathematical calculations in some detail and with great transparency – allowing, in turn, for the foundations of its judgment to be scrutinised by the public.
It is trite to say that one may disagree – on substance – with the Court’s analysis on each of the three steps outlined above. Indeed, this writer believes – for example – that the Court’s holding that spoilt ballots be not counted in the determination of whether the winner of the election has crossed 50 per cent is open to critique. After all, why shouldn’t an individual be entitled to spoil their ballot and have their vote counted accordingly? Such disagreements are in the nature of things; the crucial point, however, is that the Court’s overall analytical framework – that is, the standard of evidence and the standard of invalidity – and the three-step analysis outlined above, is undoubtedly sound, and one of the only routes open to a Court to adjudicate high-stakes political disputes without being dragged down into the mire of political partisanship.
The results of the scrutiny report are discussed extensively in the judgment, with a candour that is not often found in the adjudication of such disputes elsewhere in the world.
It is in this context that the statement of Azimio that the Supreme Court presents a “threat to democracy” is a matter of some concern. As mentioned in the beginning of this article, around the world, clashes between the judiciary and politicians are not uncommon, especially when it comes to high-stakes elections. However, many of those clashes have occurred in contexts of judicial overreach, or where the Court instals a politician or validates an election in highly opaque or secretive proceedings. In the opinion of this writer, two things set apart the Kenyan case: the first is that the Constitution explicitly envisages the Supreme Court as the body that will resolve this dispute, and for good historical reasons (indeed, as the 2017 elections showed, the Supreme Court is capable of – and has – set aside an election in the past). And the second – and more important – thing is that, when you consider the judgment in Odinga and 16 others vs Ruto and 10 others from the perspective of global best practices in adjudication, it stands up to searching scrutiny. The Court set out neutral and objective framework principles to guide its adjudication of the case, reasoned closely and narrowly within those principles, and set out its chain of reasoning in a judgment on record. The Court’s judgment may attract criticism (even stringent criticism), and that is in the nature of things, but – respectfully – it does not warrant an attack. It is important to remember that the dispute resolution process under Article 140 requires an independent and strong Court that can act to invalidate a flawed presidential election (as it did in 2017). If that is gone, then it is an open question how future disputes can ever be resolved without serious problems.
Those promoting veganism as a means of fighting climate change forget that in many parts of the world herding is the only realistic means of human survival and millions rely on it.
Published
on
By
The war against animal agriculture, now spearheaded by fundamentalist vegans, is an attack on human diversity. Were it to succeed, it would wipe out streams of detailed knowledge and expertise about how to thrive – self-sufficiently – in almost all the landscapes and climates on earth. This knowledge has been accumulated gradually over many thousands of years and is irreplaceable. It’s where we truly connect to our non-human relatives. Eradicating it would reduce everyone to dependence on processed, factory-produced “food” and additives, and on the corporations that make them.
This is because healthy human nutrition from plants alone is only approachable in particular climates and landscapes, and even then important food supplements are needed. If everyone were to be restricted to this diet, the elites in charge of the manufacturers and supply chains would control human life.
Whether the elites would themselves live off the stuff they make is open to question. They could ensure some healthy food is still grown normally, including from animals, but it would likely be priced well beyond the reach of ordinary folk. Bill Gates, for example, now invests heavily in fake meat and dairy, promoting it vigorously whilst tucking into the real meat he loves.
Predicting the end of animal agriculture is nothing new. It was initially a fundamentalist Christian ideology preached over 100 years ago with the objective of cutting sexual desire! Were it ever realised, it’s no exaggeration to suggest it could signal the end of human life. After all, our adaptability and inherited knowledge are the only reasons our species survived and spread over the world in the first place, including into many climates still viewed by urban dwellers as hostile. Animal domestication has been central to human societies for tens of thousands of years.
Healthy human nutrition from plants alone is only approachable in particular climates and landscapes.
Whilst expertise in mechanics, science and industrial processes can be acquired from books, the flora and fauna we depend on is so subtly and delicately interrelated that it’s best seen at least as much through generations of direct experience as through classroom skills. Those who depend throughout their lifetimes on their own herding or hunting often rely on something which leans as much towards the instinctual as to the learned.
The risks in losing this vast body of expertise should be obvious. In spite of endless predictions, no one knows what the world will look like in a century or two, and wiping out knowledge of animal agriculture, as well as the myriad breeds it has produced, is bound to severely limit the options open to our descendants. There are many parts of the world where herding is the only realistic means of human survival and millions rely on it. The dependence on camels in the Sahara, reindeer in north Eurasia, horses in Central Asia, llamas and alpacas in the Andes, and goats and sheep in many environments, is well known. Areas that are unsuitable for crop growing, where agriculture is impractical or impossible – particularly in upland and arid regions – can support herding. Human life in vastly different climates can also depend on hunting, from tropical forests to the Kalahari to the Arctic, and of course more millions throughout the world rely on fish. Those who think that crops can replace these ways of life seem unaware of the reality in such places. As the climate changes, there may be many more zones in the future where humans can only survive if they live at least as much off animals as from plants.
In spite of all this, ending animal agriculture is now vigorously promoted by the mainstream media. Paradoxically, this is especially noticeable in apparently progressive forums, and where the propaganda is heavily funded by corporations and foundations, including by Bill Gates. The UN and the World Economic Forum support Gates’ dystopian dream and, as with most “good causes” nowadays, it’s inevitably presented as key in fighting climate change. Studies, and especially headlines, are routinely trotted out to support this highly dubious claim, often funded by corporate interests or their foundations, repeating one-sided or massaged data that can seem convincing at first sight.
Lots of people, particularly the young, swallow all this as an article of faith, and embrace the notion that ending all animal agriculture is about compassion for animals, as well as fighting for the climate. They rightly cite the undeniable horrors of massive industrialised agriculture but seem unaware or unconcerned that in much of the world animal agriculture is a very different thing indeed, practised on a much smaller scale and in the hands of local people who have derived sustainable livelihoods from it for millennia, and all this with little or no reliance on a polluting industry.
As the climate changes, there may be many more zones in the future where humans can only survive if they live at least as much off animals as from plants.
Those local people are, luckily for all of us, the real key to why the end of animal agriculture is unlikely ever to be realised. However much the elites seek to manipulate people and agendas, human beings remain individuals with their own beliefs and dreams just as much as they are conditioned social creatures who can, sometimes all too easily, succumb to short-term fashion and peer pressure.
Even the most vigorous and violent attempts at imposing total control over any population inevitably foster a resistance where, eventually, a plurality of belief and action is rekindled. Such human spirit, or whatever one calls it, proves time and again the overwhelming and resilient strength in human diversity.
The key lesson of history is that there is no single right way to live and be, and there is nothing in history to suggest any single way of life is ever likely to become totally dominant. That simple fact will save humankind from the dream of those who want to end all animal agriculture. It’s really a nightmare which points not towards an innocent and childish Garden of Eden of healthy plant-based diets and compassion for all creatures, but to the end of most human life. Indeed, that may well be what some campaigners seek. Fundamentalist environmentalists of the 1980s Earth First! movement believed that “Billions are living that should be dead,” and concluded,  “Fuck the human race.” Perhaps the original stimulus, a fear of and disgust with human sexual desire and reproduction, is not so alien to the campaign being waged today by fundamentalist vegans.
The decision to lift the GMO ban undermines our food and seed sovereignty and delegates the control of our food production systems to profit-driven multinational corporations.
Published
on
By
Kenya has lifted its 10-year ban on Genetically Modified Organisms (GMOs). The World Health Organisation (WHO) defines GMOs as organisms (plants, animals or microorganisms) whose genetic material (DNA) has been altered in a way that does not occur naturally through mating and/or natural recombination.
Proponents of GMOs are lauding this as a good move towards addressing the issue of food insecurity at a time when 4.1 million Kenyans are facing hunger. While it is clear that food insecurity threatens the life of millions of Kenyans, lifting the ban on GMOs is not the solution.
Since the production of the first GMO crop in 1983, there have been significant environmental and health concerns regarding these crops. A joint statement published in a scientific journal in 2015 by over 300 independent scientists and researchers states that the scarcity and contradictory nature of the scientific evidence published to date prevents conclusive claims of safety, or of lack of safety of GMOs. These scientists further state that rigorous assessment of GMOs has been hampered by lack of funding that is independent of proprietary interests. Echoing the sentiments of these scientists is another scientific study that shows that the majority of studies concluding that GMOs are safe and nutritious are those undertaken by associates of the biotechnology companies producing GM foods and seeds.
To date there are no epidemiological studies on the  potential effects of GMO food consumption on human health despite claims from GMO proponents that GMO meals have been consumed in countries such as the United States of America with no impact on health. There is also no scientific consensus regarding the environmental risks associated with the growing of genetically modified crops.
In line with the UN’s Cartagena Protocol, the National Biosafety Authority is the state corporation in Kenya mandated with ensuring the safety of human and animal health and providing adequate protection of the environment from harmful effects that may result from GMOs. The Cartagena Protocol requires a careful case by case assessment of each GMO by the national authority to determine whether the GMO crop or food satisfies the national criteria for being “safe” and ensures that any environmental health concerns and risks are addressed before its introduction.
Based on this understanding, it is unclear whether the National Biosafety Authority carried out any independent research on the safety of these crops and foods regarding their effect on the environment and on human health before the ban was lifted in Kenya.
Safety aside, GMOs aggravate food insecurity and threaten food and seed sovereignty. They do so by holding farmers in debt cycles that reduce their ability to produce more food for consumption. More than 80 per cent of the food consumed in Kenya is produced by smallholder farmers. Lifting the ban on GMOs will expose farmers to the exorbitant prices of GM seeds and they are likely to be locked into debt cycles as they try to pay for seeds acquired through loans.
Farmers in Burkina Faso abandoned the cultivation of Bt cotton that was introduced by Monsanto, now Bayer, citing the higher prices of Bt cotton seed and its poor quality compared to their indigenous cotton seed which produced a superior quality of cotton. Their adoption of Bt cotton caused them to lose their niche in the international cotton markets. Yet the same Bt cotton (MON 15985) that failed in Burkina Faso has been introduced in Kenya following national performance trials undertaken by the Kenya Plant Health Inspectorate (KEPHIS) with the approval of the National Biosafety Authority (NBA). This begs the question whether the Kenyan government is trying to enslave its people to biotechnology companies.
In November 2021, cotton farmers in Busia were asking the Kenyan government to subsidise the price of Bt cotton seed which was retailing at KSh2,200 a kilo. In March 2022, there was an outcry from cotton farmers in Kenya because of the unavailability of Bt cotton seed, which the chief executive officer of the National Biosafety Authority attributed to the multiplication challenges experienced by the sole company given the task—companies fronting the GM crops, such as Mahyco, in which Monsanto has a 26 per cent stake, control the production and multiplication of these crops.
This begs the question whether the Kenyan government is trying to enslave its people to biotechnology companies.
Maize is Kenya’s staple crop and farmers are currently being persuaded to grow Bt maize, based on the argument that it is resistant to pests. However, since farmers will not control the supply and multiplication of the Bt Maize seed, they are likely to face the same seed scarcity that is being experienced by Bt cotton farmers when the suppliers of these seeds pull out of the market.
Companies such as Monsanto (now Bayer) are among the world’s largest seed companies and  have been known to push GM innovations on key crops such brinjals, maize and potatoes across the world, their major interest being profits. Allowing these companies to dominate the production and importation market of key crops such as maize is likely to affect the livelihoods of the farmers who, in Kenya, produce about 40-45 million bags of maize every year. These farmers will certainly be competing for market against imports of cheap GM maize from the US which has been pushing to expand its exports of genetically modified food crops into the Kenyan market.
Kenyan imports of GM foods and food crops will also affect our East African neighbours such as Tanzania and Uganda who export their surplus produce to Kenya. With the loss of market comes the loss of interest in farming and the abandonment of land, which in turn could lead to rural-urban migration by populations in search of alternative livelihoods, leaving the door wide open for multinational corporations to buy abandoned land to grow commercial crops for export.
Lifting the GMO ban will also expose farmers to draconian intellectual property laws related to patents held by GMO multinationals. GM seed is patented and this could land the farmers on whose farm GM crops have grown without their knowledge into intellectual property disputes. These farmers are likely to be forced to pay royalties for GM crops that contaminate their farms through pollination or cross breeding. In the US Monsanto (now Bayer) sued hundreds of farmers to protect its GM seed patent rights. In Brazil, Monsanto won a US$7.7 billion lawsuit after a court ruled that farmers cannot save and replant Monsanto’s patented Roundup Ready soybeans. In India, PepsiCo, the manufacturer of Lays Potato Chips, had sued four farmers for an amount of about KSh15 million for illegally growing its potatoes. The case was withdrawn.
Lifting the GMO ban will also expose farmers to draconian intellectual property laws related to patents held by GMO multinationals.
Environmental concerns associated with lifting the ban on GMOs include the loss of our agricultural biodiversity and interference with our country’s ecological balance. GM crops are likely to contaminate non-GM crops through pollination. This could lead to the loss of indigenous varieties of crops such as millet, sorghum and spider plant (sagaa) that are grown in many parts of the country.
While the Biosafety Act of 2009 provides for risk assessment measures in order to protect human health and the environment from the possible adverse effects of GMOs, in the case of Bt cotton the NBA stipulated that once it was released for commercialisation, the NBA and government agencies would monitor it for 20 years “to assess whether there are post release adverse effects”. Aren’t 20 years too long a period to wait to address any possible effects on human health and the environment? Shouldn’t the risk assessment have been done before the introduction of GMOs in the country for cultivation and commercialisation? There are also no clear liability and redress mechanisms for damage resulting from transboundary movements of the genetically modified living organisms. What happens to the farmers who might be caught up in lawsuits regarding patent rights? Is there any clear legislation on their protection?
Fronting GM seeds as a solution to food insecurity equates to the Kenyan government admitting that Kenya has a seed problem, which is untrue. For all the crops cultivated in Kenya,  more than 78 per cent of the seed used comes from informal seed sources controlled by smallholder farmers. This is despite their existing a law that makes it illegal for farmers to share, exchange and sell indigenous seeds. The lifting of the ban on GMOs in Kenya is therefore ill-advised. Food sovereignty and security lies in farmers controlling and breeding their own seeds and having access to proper area-specific storage facilities and appropriate infrastructure.
Access to water is a key factor in addressing food insecurity. Kenya’s fresh water bodies are already choking with chemicals. An exposé aired by the Nation Media Group showed that Lake Victoria, Kenya’s largest freshwater lake, is contaminated by pesticides and fertilizers. Why can’t the government prioritize safeguarding such resources from contamination so that Kenyan farmers can have access to clean water for food production? Or provide water to farming communities for easier food production?
In addition, access to agricultural extension services that provide agro-ecological information is critical to providing information on sustainable farming practices such as ecological and organic farming. Having access to this information is invaluable in that it teaches the farmers to produce more safe food while conserving natural resources such as soil and water.
These practices also minimize the use of harmful agrochemicals and ensure that Kenyans have access to safe and adequate food. Ecological farming practices also minimise soil degradation, including widespread soil acidification due to overuse of chemical fertilisers. Most importantly they help farmers save and share indigenous seeds which is a key aspect of food sovereignty. Therefore, the move to lift the ban on GMOs is only going to send more farmers deeper into debt and poverty, limiting their ability to produce more food and increasing our dependency on imported processed foods that are low in nutrients. It is a move to undermine our food and seed sovereignty and delegate the control of food systems to multinational corporations whose motives are driven by profit. A seed is the lifeline of a generation, those who control seed control the entire generation.
Why are Ethiopians Dying in Isaias’ War?
Soko Mjinga: The Shamba System
GMOs: Entrenching Kenya’s Food Insecurity
Land Governance Priorities for the New Administration in Kenya
Life on the Day of a Coup: Keeping Up With the Koupdashians
Burning Ambition: Education, Arson and Learning Justice in Kenya
Queen Elizabeth II and the Weight of History
Africa in the 21st Century: From Pawn to a Significant Player
Copyright © 2017-2022 The Elephant. All Rights Reserved.

source