Whither Kenya's Democracy?

From 1963 to 2017, Kenya has held 12 general elections (excepting the 1967 ‘little’ general election and the 2017 repeat presidential election). Only two of those elections – in 1963 and 2002- were not disputed.

Because CORD in 2013 deferred to the Supreme Court’s presidential election petition results, the country followed suit. But in 2007/2008, electoral controversy threatened to tear the country apart. President Mwai Kibaki averted full-blown civil war by conceding minimum constitutional and legal changes as well as the establishment of a coalition PNU/ODM-K, now WDMK/CORD government.

Due to perceived electoral injustice, Kenya has narrowly escaped regime change through non-electoral means in 1982, 1997 and 2008.  Currently, NASA has declared it will swear into the presidency its two 2017 flag bearers.

Annulled

The presidential results of August 2017 were annulled by the Supreme Court.  Even after the apex court ruled that the IEBC “server” which electronically transmitted the electoral outcome be opened, the IEBC disobeyed the order. Evidence from the BVR system regarding the October 2017 second presidential election suggested that over 70 per of Kenyans did not vote.  However, the Supreme Court gave a legal nod to the electoral verdict notwithstanding the legitimacy dilemma.

Previously, the electoral system has been saved from utter breakdown through last-minute legal changes that introduced new rules which promised some measure of electoral justice. Such notable initiatives were the 1991 re-introduction of multipartism; the 1997 IPPG reforms; the 2008 restructure of the Executive culminating in the 2010 epochal Constitution which travelled the route of Bomas, Kilifi and Naivasha (under the leadership of the then PNU’s Uhuru Kenyatta and ODM’s William Samoei Ruto) before attaining parliamentary approval.

To deny the existence of a national crisis in Kenya today is to bury our heads in the sand like the proverbial ostrich. The economy is crushing the majority poor. Revenue collection is dismal. County governments and the national government are starved of financial resources. The private sector is retrenching workers due to the gradual economic meltdown. The national debt is at an all-time high. Political temperatures are shooting; 2018 and beyond look bleak.

Several players have offered diverse solutions to overcome the political impasse.  For Jubilee, the country must move on since the October 2017 presidential election has concluded the electoral season to pave way for the development phase.

Back to the 1990s

NASA and its followers want to reclaim “their August 2017 win” by swearing in its top leaders. The Peoples’ Assemblies and the National Resistance Movement are NASA structures mandated to mobilise resistance, product boycotts and other civil action reminiscent of NCEC’s late 1990s activism.

Faith leaders, the business class, the international community and some politicians are advocating for bi-partisan national dialogue to resolve the current political imbroglio. A broad spectrum of Kenyans hold the view that the country is ripe for constitutional reform in which the seven-year-old constitution is reviewed in light of constitutional practice. Therefore, a constitutional moment is at hand.

Some stakeholders believe the above broad positions can also have variations of a Jubilee-NASA grand coalition government or the establishment of an interim government to spearhead constitutional change after which another General Election takes place prior to 2022. Whatever option Kenya ultimately adopts, there are several important considerations to bear in mind.

The 2010 Constitution and its practice have not helped Kenya overcome corruption, negative ethnicity, youth disempowerment and mass poverty. The winner-takes-it-all electoral model (which both PNU and ODM approved in 2010) excludes significant populations from the political and economic mainstream or national decision-making.

If it were not for devolution, the electoral conflict of 2017 would have probably devastated the country more than the 2007/2008 conflict.  Inclusive democracy in which both political liberation and economic independence for the majority are guaranteed is yet to occur. The Kenyan state continues, by and large, to be the property of those at the helm of power.

Further, constitutional and other legal changes on their own, will not change Kenya. The 2010 Constitution has significant provisions for independence of IEBC, other commissions and the Judiciary. If these State offices are compromised or intimidated by the Executive, the moral backbone of holders of those offices is feeble. If the law and a court order an electronic “server” to be opened and IEBC officials refuse, that act or omission are not about the law’s inadequacy. If the National Assembly and Senate pass unconstitutional laws as a consequence of partisanship, that reflects ethical laxity.

Dialogue option

If the Executive undermines devolution, it is because it still cherishes centralization of power. If the Truth and Reconciliation Commission Report has been shelved aside, the law is not the culprit. If county governments are unaccountable, this is not due to weaknesses of the legal regime... If we do not embrace the letter, spirit and culture of Article 10 of the Constitution, other legal changes will not make Kenya better.

In my view, structured, inclusive and conciliatory national dialogue within a defined time-frame is the way forward for Kenya. Let us accommodate in the national dialogue representatives of the political class, business, faith sector, professional class, youth and women organizations and other regional community broad-based groups. We cannot run away from the imperative of public participation in all our national and county affairs.

All over the world, each national dialogue is first and foremost political since politics is the art of negotiation about the distribution of scarce national resources and political and socio-cultural inclusion.

Since Kenya is not an island divorced from the global community, we need to listen to well considered views from the international community. Ultimately our national exchange will be our own homegrown dialogue.

Prof Kibwana, a constitutional lawyer, is the Governor of Makueni County