Former Chief Justice Willy Mutunga predicts a Raila-Ruto handshake

Former Chief Justice Willy Mutunga raised eyebrows when he predicted yet another handshake between presidential hopefuls Raila Odinga and William Ruto after the August elections.

He theorises that the elections will be contested, threaten the country's peace, and then the international community will prevail upon the rival groups to reconcile and work together in a government of national unity.

I agree that our history and the prevailing circumstances indeed point to a likelihood of a contested election, a “handshake”, and the sharing of power to accommodate political class from both sides. In fact, our history is full of instances where the lines between government and the opposition have been blurred for many reasons.

The mergers of ideologically distinct Kanu and Kadu in 1964, and Kanu and NDP in 2002, the inclusion of members of Kanu into the Kibaki administration after the rejection of the 2005 proposed constitution and removal of the LDP wing led by Mr Odinga, and the handshake that stopped the 2007-08 post-election crisis that led to the death of over 1,000 Kenyans, thousands of rapes and injuries and displacement of hundreds of thousands.

The 2008 National Accord, the negotiated roadmap to stability, sought to restore peace and inculcate specific reforms designed to solve various issues such as fair policing, electoral justice, and historical issues that threaten national unity. Billions of shillings were spent on public consultation, engagement of experts, hearings and reports that ultimately informed the 2010 Constitution and institutional reforms. It is noteworthy that the government of national unity that was established after the crisis was spectacularly bloated to accommodate the various political interests. Various government departments became fully-fledged Cabinet portfolios to satisfy these needs.

Even in the face of a national crisis, the political class has always reconciled and readily shared power if only to prop up themselves for the next battle. A casual look at the current major political players shows they have no problem working with each other if their interests align. The current alignments in Azimio, One Kenya Alliance (OKA) and Kenya Kwanza are merely the latest iteration.

It has been pointed out that the Building Bridges Initiative (BBI) framework was very similar to the National Accord because it sought to end a crisis and propose reforms, including expanding the Executive and Legislature. However, critics argue that the reforms were possible under the 2010 constitutional framework. They say the Constitution, a framework for the fair distribution of power and resources, justice, the rule of law and human rights, has never been fully implemented.

Historically, the justification and ingredients of all these “handshakes” included the government's lack of legitimacy, the need to foster national unity, and the existence of a national crisis. The 2018 handshake was a combination of all three factors caused by the nullification of the elections by the Supreme Court that eroded legitimacy. The subsequent election was more farce because the main opposition did not participate. Moreover, elections were not held in some counties in Nyanza and Western regions, and the economy was in the dogs due to economic boycotts, a toxic business environment and protests.

Some worrying trends that may lead to a contested election in 2022 include accusations of partisanship by the national security apparatus and an electoral body that does not inspire and seems indecisive regarding the transmission of results. Other factors include the rampant disregard of court orders and the rule of law generally and the use of state resources to fund campaigns. More worrying are political statements alluding that the State rigged the 2017 elections.