Unlike in 2007, the stars are misaligned for an extra-legal power-sharing plan 

Raila Odinga is in preparatory mobilisation for a decisive onslaught on all normalcy and tranquillity with the objective of overwhelming the national security apparatus to leverage the government into extra-institutional political accommodations.

His persistent invitation to extra-parliamentary engagement highlights the dubious legitimacy of his cause, and his expressions of disaffection with Parliament as an institutional pathway merely reinforce it.

The entire process leading to the declaration, certification of a president-elect and the subsequent assumption of office of a president is constitutionally inscribed in great detail.

The Constitution mandates a rigorous, elaborate and mandatory institutional mechanism which permits no opportunity whatsoever for imaginative or adventurous ukarabati, in order to deliver the full assurance of legitimacy without which both the Constitution and the presidency are woefully encumbered by fatal deficiencies.

The monumental irony of Odinga’s elemental angst is that of all people, he is by far the most implicated in the events whose causes and consequences the institutional regime responds, yet at the same time, the contents of his claims and his methods of prosecuting them seem agnostic to both the regime and its context.

The election crisis of 2007-2008 exerted tremendous impetus on Kenya’s long-standing struggle for a democratic, decentralised government based on constitutionalism and respect for human rights. It also premised these aspirations on the non-negotiable requirement of a legitimate government chosen through a foolproof election.

Overwhelming analytical attention has understandably been focused on the post-election crisis of 2007-2008 and the country’s desperate stumble to the edge of our existential precipice. Any reference to pre-election dimensions traditionally oscillates around the 2005 constitutional referendum, the consequent tectonic political estrangement and executive mischief in the constitution of the electoral agency.

The truth is that the National Rainbow Coalition was set up to fail through fairly democratic means. In the euphoria of a historic electoral triumph, the new administration was installed upon an aspirational pedestal by Kenyans who were intoxicated by the delirious atmosphere of freedom and the sense of illimitable possibility which defined the unanimous national mood in those wonderful days.

Within months, Odinga shattered the romance with vehement demands for full satisfaction of the terms of a pact whose details he was reluctant to publish. 

The most salient of these demands was his elevation to the position of prime minister. Other parties in the ruling coalition responded with contempt and rancorous defiances. At the dawn of a magical dream, Narc collapsed into a veritable bedlam and took an insidious turn to rabidly defensive ethnonationalism. 

Adversarial rancour 

Owing to this polarisation of our political elite, the ensuing referendum was canvassed on the basis of adversarial rancour, rather than issue-based democratic contestation.

In the aftermath of the referendum, Odinga was excommunicated from the executive, setting him free to mobilise aggressively against an increasingly insular, chaotic and scandal-prone executive. 

The unilateral appointment of members of the electoral commission who were the President’s co-ethnics, known allies, or both, escalated the electoral commission’s credibility deficit.

Before and during the election, fears of massive rigging were heightened by suspicious mobilisation by the government using the national security apparatus and administrative infrastructure, which, in any event, were firmly welded in incestuous entanglements with government functionaries and affiliated political operatives. 

The shambolic proceedings at the national tallying centre worsened these apprehensions, and the opposition was left with nowhere to run, given apparently compromised police. 

For its part, the Judiciary was unresponsive in the face of desperate struggles to stem the rising tide of disaffection.

There followed a series of events which will forever be remembered as Kenya’s nightmare sequence. Wildly exaggerated vote tallies streamed in from constituencies associated with the government, and the commission lost contact with returning officers. A phalanx of police officers in combat fatigues shortly besieged the tallying centre, and then there was a blackout.

Most unexpectedly, the pathetically depleted chairman of the commission materialised on television, accompanied by other spectral figures in the sorrowful twilight of a late December dusk, on the grounds of State House with a certificate declaring the incumbent as the winner of the presidential election. 

The Chief Justice and the Registrar of the High Court were at hand to administer the president’s oath of office. This ghostly pantomime ridiculed due process instead of emulating it.

If it was intended to allay gnawing concerns or settle the country’s absurd post-election predicament, it was recklessly ill-considered; the nation erupted in an infernal upheaval which caught the government by surprise and easily overwhelmed it.

The government’s legitimacy, which had been acrimoniously contested on a continuous basis for five years, collapsed altogether under the dead weight of a judiciary, police service and electoral commission that had failed when the stakes were highest. The only credible way to restore peace and normalcy and institute a legitimate administration lay in the extraconstitutional domain.

The 2007 post-election crisis was not just about a contested election: it was the culmination of multiple fundamental failures at the institutional level. By all accounts, 2022 is a far cry. The difference matters.

Mr Ng’eno is an advocate of the High Court.