Kenyan elections have been noted for irregularities, which have at times, led to violence. In 2007, violence erupted between the two largest tribes, the Luo and Kikuyu, after Mwai Kibaki, a Kikuyu had defeated Raila Odinga, a Luo. Luo responded by attacking the Kikuyu, burning down homes and forcing businesses to close. Hundreds of thousands of people were displaced from their homes and more than 1,200 people died from the post-election violence. Parts of Kenya were hit by spikes in crime and looting, causing tourism to all but stop. Indeed, Kenya has a long history of inter-ethnic rivalries. After gaining independence in 1963, the country’s ethnic divides were further aggravated by the established political system which vested too much power in the presidency. Such a winner-takes-all system of political institutions proved to be the worst possible scenario for the Kenyan domestic political context.

Fast forward ten years later and there were concerns that history was repeating itself.  The 8 August  2017 elections were plagued by complaints of irregularities and illegalities from opposition candidate Raila Odinga against supposed winner Uyuru Kenyatta, the incumbent.  Violence broke out with 37 people killed and 126 people injured. In September the Supreme Court uncharacteristically threw out the results, a decision that was considered a breakthrough for judicial independence in Africa. The new elections held on 26 October  were boycotted by Odinga supporters. Only 39 per cent of the public came out to vote (compared to 80 per cent in August) and angry protesters threw rocks and bottles. Kenyatta managed to win the second election with 98 per cent of the vote. Alarmingly, several judges and election officials have been threatened, tortured, and killed since the election process began.

While Kenyans grow increasingly concerned about creeping authoritarianism, Odinga called for having an examination into how to curb presidential powers. Over the past ten years, Kenya has rewritten its constitutions and electoral laws with the hopes of preventing the post-election violence that took place in 2007 and 2008. In August 2010, a new progressive constitution was approved by referendum with 67 per cent support. 

The 2010 constitution had a number of very ambitious goals: first and foremost, it proposed a major reform of the executive, legislative, and judicial branches of power and, importantly, devolution of central power to the regions. According to the constitution, the country is ruled by an executive president, whose power is significantly limited and accounted for by other political institutions. The previous constitution gave a lot of power to the country’s president, such as, for instance, a right to hand out public land to influential individuals. For decades, Kenya had an imperial presidency that faced no checks on his power. Concentration of presidential powers was the result of constitutional reforms conducted during President Daniel Arap Moi’s 24-year rule in Kenya. The constitution pledged to change all of that. For instance, both the president and the parliament are proposed to have fixed terms with elections every five years. The parliament is expected to scrutinize key governmental appointments that had previously been made solely by the president and his administration. The parliament also has its say in the appointment of the national police commissioner, a post previously decided upon exclusively by the president. The constitution created a second chamber of the parliament: the Senate, which is responsible for checking the presidential powers. 

The new constitution also aimed to create an independent judiciary that was capable of ensuring that government activities are in strict conformity with the constitution.  The new constitution also proposed a more elaborate legal framework that is expected to solve the country’s rampant levels of corruption and political patronage. All incumbent judges are expected to resign and a new judicial-appointments commission will be established. The constitution also envisages stricter state regulation of arrest procedures by the police. Under the new constitution cabinet ministers would be appointed outside the parliament and their numbers would be limited to twenty-two. In theory, this would allow for experienced bureaucrats to run the ministries, rather than the president’s political allies.

Kenya has tried to improve its governmental structures and decision-making procedures.  But these institutions of power are not always adhered to and the electoral process has been questionable. Moreover, the objectives of curbing presidential power have not yet come to fruition. The literature suggests that presidential democracies with extremely powerful presidents are more prone to democratic reversals than, say, parliamentary democracies (see Chapter 2 ‘Theories of democratization’). The new constitution was internationally praised for entrenching the concept of separation of powers with checks and balances, with the goal of reducing executive power and ensuring fair democratic processes. In spite of this, it is not clear that citizens are convinced that it has made much of a difference yet. 

Critical thinking questions

• Why have elections in Kenya been marred by violence?  Did the new constitution improve electoral processes in Kenya?
• In your opinion, is institutional design important in democratization? Why, and in what ways?
• What are the typical institutional choices that democratizers have to make in order to encourage democratization and achieve democratic consolidation? Why are some institutional configurations more conducive to successful democratization than others? Give examples.
• Why are presidential democracies more prone to democratic reversals than more parliamentary types of democracies?
• What political actors have benefited most from the new constitution?