Why current constitution is setting us up for more failure

This has been the best election year yet. It has been painfully long, legally confusing and financially draining. It has fed our national anxiety like none of the five elections before it. But that is exactly why it is the best election period we have ever had. And here is why.

Despite the pointless drama it has generated, this 2017 electoral experience serves to cure us from a case of chronic political delusion. While the 2007 election woke us to the realities of our problematic politics of ethnicity, these elections have gone a step further. They reveal three things with clarity. 

First, ’Tyranny of Numbers’ is no longer a ‘Mutahi Ngunyi proverb’ but a stark reality of the prospect of a ‘dictatorship by the majority’.

It is slowly dawning on the Opposition that there will be a ‘permanent’ winning side in every electoral cycle.

Ethnic arithmetic guarantees this outcome. It has also become clear that as a result of having a ‘permanent’ winning side, brazen governance can ensue, where the majority can bulldoze laws into existence, driven by the need for self-perpetuation.

But the second thing that the 2017 elections have shown us is that the perennial desperation of the losers can take on new debilitating dimensions. It only follows that unscrupulous means of attaining power will be used when it looks like the ballot is not the route to the presidency.

These elections, for instance, saw a revival of secessionism, an unexpected withdrawal from the polls, politically sponsored chaos and the boycotting of products. 

This new trend of engineering political crises with the hope of precipitating a stalemate will definitely be compounded in future elections if we do not address the root causes of our political asymmetry. ‘Nusu Mkate’ tactics will be the electoral norm, devouring precious time and energy and costing tonnes of money that could be put to better use.

Thirdly and more fundamentally, this election laid bare the inadequacies of the 2010 constitution. When the de facto Opposition leader admits that he has been crowded out of all legitimate avenues to represent his supporters and is left with no choice but to constitute parallel peoples’ assemblies, that is a confirmation of a wanting constitution. Let me explain. 

In our 54 years as an independent nation state, we have never resolved the famous Kanu, Kadu debate. Our founding fathers were pragmatic.

At Lancaster, they realised the majority ethnic groups, Gema and Luo would dominate the smaller tribes such as the Kalenjin, Mijikenda and Luhya. With this reality in mind, they settled on a constitutional framework that sought to tame the powers of the central government while strengthening regional autonomy. In many ways, the 2010 Constitution set us up for failure.

It failed to create an equitable system for the distribution of political power. It only solved the KANU KADU debate partially, through devolution, but entrenched the powers of the dominant ethnic groups. 

Jubilee are right; they have every justification to gloat. Indeed, to the victor belong the spoils.

And as George Orwell said in 1984, no one ever seizes power with the intention of relinquishing it. Jubilee are under no obligation to behave philanthropically. But the Raila Odinga brigade are not wrong either. They too have a point. ‘Dictatorship’ by the majority is not tenable. 

Two fundamental problems persist. First, our electoral system was designed solely with the big tribes in mind. They will never relinquish power unless compelled to do so through the constitution. The constitution requires a 50 per cent plus one threshold to win an election.

Whereas this is sufficient for to represent the numerical majority of the electorate, it does not encourage the formation of ethnically diverse coalitions. It is no wonder then that the Raila Brigade are dumbfounded by the similarities of these times with the Kanu days.

Their object of aggression is misguided, it shouldn’t be the bearer of high office but rather, the Constitution. Second, our governance system shifted from a hybrid model to a pure presidential system; a system that works best only in homogenous societies, not in a fragmented societies experiencing ethnic, religious or racial cleavages.

A presidential system once again, can be numerically representative but does not guarantee ethnic diversity.

Parliamentary systems on the other hand are better suited to fragmented societies, where the people’s representatives in the National Assembly are incentivised to form broad based coalitions on the basis of consensus, not dominance. 

The time is nigh for constitutional reform. Failure to address the Kanu, Kadu debate will inevitably lead to the gradual demise of our nation state.