Adequacy of post-2007 constitutional mechanisms in addressing ethnic conflict in presidential elections in Kenya

Abstract

This study was guided by four objectives : (i) examining the linkage between ethnic conflict and Presidential elections in Kenya; (ii) evaluating adequacy of post-2007 constitutional mechanisms in addressing ethnic conflict in presidential elections in Kenya; (iii) examining what lessons Kenya can draw from constitutional mechanisms of other select countries, and ( iv) making recommendations. Since 1992, cyclic ethnic conflict in presidential elections has caused deaths and loss of property. Prior to 2007, enforcement of criminal law was viewed to be the remedy. However, ethnic conflict in 2007 presidential elections led to the view that constitutional reform was the solution. In 2008 Kenya amended Constitution of Kenya of 1969 and applied consociationalism. New Constitution of 2010 dropped consociationalism and introduced devolution, nation-building measures and centripetalism. Despite these mechanisms, the problem persisted in 2013 and 2017 presidential elections hence this study. Literature on constitutional design for divided societies prescribe either accommodation (consociationalism and devolution ) or integration (centripetalism and nation-building) of ethnic groups into a state’s power structures. The main gap in this literature is failure to consider importance of electoral data in designing constitutional presciptions. This research took an explanatory and indepth approach unlike past studies that took comparative and descriptive methods. The methodology used was qualitative: interviewing key informants, experts and focus group discussions. By gathering data from the field and studying national vote electoral data from 1992 elections, it uncovered a theory that shows the higher the margin of votes between a winner and best loser in national votes in Kenya, the lower the chances of ethnic conflict. Ensuring a margin of about 18 per cent between the two main contestants constitutionally boosts chances of ethnic peace. Among other proposals, the study recommended that article 138 (4) of the Constitution of Kenya 2010 be reviewed to increase the margin of victory of a winner. The law used and analysed by this study was as at 1st February 2020.