‘Tyranny of minority’ will kill our democracy

There has recently been a chorus of calls by sections of the diplomatic missions in Kenya who have variously been quoted asking President Uhuru Kenya to negotiate the issue of the Kenyan presidency with the NASA presidential candidate Raila Odinga and reach a settlement.

The President would be ill-advised to succumb to such reckless calls as they would not only be contemptuous of the Supreme Court of Kenya that ruled on Presidential Election Petition Number 1 of 2017 that ordered the IEBC to conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of the determination, but it would also offend Article 136 of the constitution of Kenya 2010 that requires the President to be elected by registered voters in a national election conducted in accordance with the Constitution and any Act of Parliament regulating presidential elections.

Sovereignty

The supreme law of Kenya underlines the sovereignty of the Kenyan voter to choose his leaders through a clearly defined electoral process. Neither the Constitution of Kenya 2010 nor any Acts of Parliament regulating presidential elections in Kenya have any provisions that provide for ‘negotiations’ as an alternative method to be used for choosing the holder of the office of President and Commander in Chief of the Armed Forces of the Republic of Kenya.

There have also not been any amendments to our statutes that have replaced the Kenyan voter, being the legally prescribed appointing authority, with ‘Foreign Diplomats’, ‘NASA Principals’ or ‘Jubilee Party Negotiators’ thereby according them powers to appoint the President through negotiations. In my considered view, it would actually require a referendum as stipulated in Article 255(1)(c) of the constitution of Kenya 2010 to remove the right of the Kenyan Voter to exercise his sovereign right to choose his leaders and confer such right to a team of negotiators. It is inconceivable that the voters would vote themselves out of such a right.

 Legally enlightened

It should also be noted that Kenyans have become very legally enlightened with heightened awareness of their rights and any attempts to appoint a President or Prime Minister through negotiation or any other processes outside the provisions of the constitution would be met with fast and furious litigation and wouldn’t see the light of day. The path therefore of negotiated or boardroom democracy that our foreign friends are leading us towards constitutes an illegality that is not only dangerous but does not conform to the rule of law.

Dangerous trend

This prescription of ‘boardroom democracy’ is not good for our country. It is giving rise to a very dangerous trend that if left unchecked and allowed to take root in Kenya will surely replace democracy or majoritarian rule as we know it today. It is a trend akin to ‘Tyranny of the Minority’ whereby a losing presidential candidate and his minority reject the election results using violence, mass action, bedlam and chaos to such a scale that threatens the very fabric of the state making it ungovernable and holding the majority ransom in a deadlock that they only purpose to unlock through negotiated democracy resulting into their accommodation in government. The country then ends up getting the leaders they did not vote into office thereby desecrating our democracy.

History repeating itself?

The chaos is often carefully designed, planned and choreographed to quickly degenerate into a humanitarian and economic crisis that immediately attracts the attention of the international community, civil society and even the majority to seek a short term solution to put out intentionally lit fires to enable the country to move on.

This is a game that the NASA Principals understand very well having been its beneficiaries in 2007 when both Raila, Kalonzo, Wetangula and Mudavadi were all beneficiaries  of the 2008-2013 Nusu-Mkate government which richly gifted them with the last jobs they ever held in government. Raila became Prime Minister and enjoyed all the trappings of a co-presidency.

Kalonzo was named Vice President by then President Kibaki to shore up PNU numbers while Musalia Mudavadi was appointed to the plum position of Deputy Prime Minister and Minister for Local Government. Moses Wetangula was appointed Minister for Foreign affairs as a reward for his role in the PNU negotiation panel. Those were surely the nostalgic good all days that the quartet would wish to relive at the expense of our democracy.

But my greatest misgiving with this prescription is that; There would be no need for us to go to elections if such elections do not result in respect for the choice and decision of the electorate.

Gullible international community

That despite being rejected by the electorate, a losing candidate can marshal his supporters and make enough noise, barricade roads, throw tantrums and demonstrate causing a crisis designed to overturn the election result and then triggering a gullible international community to intervene and support them to overturn the sovereign will of the Kenyan people.

The diplomatic missions must allow the rule of law and respect for our institutions to prevail. It is for this reasons that there shall be no negotiated presidency in Kenya. The October 26th Elections must proceed as scheduled.

Mr Murkomen is the Senator, Elgeyo-Marakwet County