Hostile coat of many colours forcing Uhuru into early lame-duck phase

As Kenya celebrates 58 years of independence, an emerging mongrel opposition casts a long shadow over the stability of its budding democracy. This biblical coat of many colours is challenging executive authority, pushing the Uhuru Kenyatta administration into an early lame-duck phase and making the country’s politics uncertain – and increasingly anarchic.

Although open records indicate Kenya has 60 certified parties, seven historic parties and six others awaiting certificates, the opposition has remained weak and ineffectual, swinging wildly between radicalism and reactionary politics. Kenya’s eclectic opposition has five discernible shades. 

The first shade is Kenya’s ‘official opposition’ that emerged from Kenya’s two elections in 2017, which produced “two presidents”. On January 30, 2018, National Super Alliance (Nasa) coalition leader Raila Odinga swore himself in as the “people's president” .

Kenyatta moved swiftly to neutralise the opposition and halt the country’s slide into civil war along the lines of South Sudan. In reality, after the March 9, 2018 “handshake” between Kenyatta and Odinga, the official opposition became part of the ruling ‘informal coalition’. This reflects the undeveloped culture of political opposition based on the entrenched view that an opposition is not a democratic necessity in Africa. Jomo Kenyatta, like other African founding fathers, argued for a “mass party” as an instrument of unity.

The Kenyatta-Raila peace pact has become the proverbial poisoned chalice which has split both the opposition and the ruling Jubilee Party. The opposition has melted down over reforms proposed by the Building Bridges initiative (BBI), losing much of its intellectual and civil society constituency to the “Hustler Nation”.

The second shade of opposition is the “Hustler Nation”, a surging populist outfit that seeks to drive a sharp wedge between ‘dynasties’ (the rich) and ‘hustlers’ (the poor) to win elections. The ‘Hustler Nation’ is a rebellion within the ruling Jubilee Party led by Deputy President William Ruto against the peace pact with Odinga. 

Dubbed Tangatanga, it has gained the support of sections of the Nasa power elite, intellectuals, lobbies, civil society activists coalesced around the Linda Katiba initiative, United Democratic Alliance (UDA) as well as evangelical Christian groups. 

The Hustler coalition has won by-elections in Msambweni, Nakuru, Nyandarua and Juja by-elections. Chances are high it may win the Kiambaa constituency by-election in Kiambu.

The third shade of opposition is the Judiciary. Tangatanga strategists seem to have transformed Kenya’s restive Judiciary into the new frontier of its battles with the Kenyatta-Odinga ‘handshake’. 

Checks and balances 

Philosophically, it reflects divisions within the elite in government, the Judiciary and civil society on how to implement the potentially conflict-ridden doctrine of separation of powers, which extols checks and balances over the fusion of power, now at the core of Kenya’s 2010 Constitution.

The first Chief Justice under the new constitution, Dr Willy Mutunga (2011-2016), attempted to strike the necessary balance between asserting the independence of the Judiciary and the collegiality of a whole-of-government approach to democratic governance. However, the March 30, 2013 decision by the Supreme Court to uphold the election of Mr Kenyatta angered sections of the civil society and the opposition. 

Three events have stoked fierce supremacy wars between the Executive and the Judiciary. 

On September 1, 2017, a majority Supreme Court ruling under then CJ David Maraga annulled the August 8, 2017 re-election of Mr Kenyatta.

Second, on May 13, 2021, a five-judge bench of the High Court blocked the BBI process, adjudging it as irregular, illegal and unconstitutional. 

Third, Maraga was not amused that the President did not appoint 40 judges recommended by the Judicial Service Commission (JSC). 

Kenyatta cited integrity issues which had been detailed by the security agencies.

Judicial opposition, which reflects the doctrine of ‘judicial supremacy’, has recently coalesced around criticism of the executive for not appointing the six judges.

This criticism is anchored on the spurious argument that the supremacy of the Constitution and the rule of law means the Judiciary is above the Executive and the Legislature. In reality, however, the superiority the JSC and the Judiciary crave is non-existent. 

To tame this lame Leviathan, we need to create a National Executive Council chaired by the President and comprising the Presidency, the Speakers of the two Houses of Parliament and the Chief Justice. The council should meet at least once every month to discuss key issues.

The fourth shade of opposition is the donor-funded civil society, lampooned by critics as ‘evil society’ and which I analysed in the book Fallen Angels (2017). 

Widely hailed as a building block for democracy and economic growth, Kenya’s civil society seems to be now largely allied to the Hustler Nation.

Fifth and arguably the greatest opposition to Kenyatta is the Covid-19 pandemic. 

“Covid billionaires” and the impact of the coronavirus have eroded progress in poverty reduction and created fertile grounds for divisive ideologies to thrive. It has not helped matters that Uhuru’s Mt Kenya home turf is a veritable tower of Babel as the elite jostle to succeed him.

The solution to the mongrel opposition lies in creating a “moral nation” to counter divisive ideologies and shift the axis of politics and legitimacy from money to morals.

Professor Peter Kagwanja is a former Government Adviser and now Chief Executive at the Africa Policy Institute.