Attending a conference on democracy, elections and constitutionalism, we listen to presenters talking about countries such as Ethiopia (before PM Abiy Ahmed), Rwanda, Egypt (under Abdel Fattah el-Sisi ) and Gambia (before Adama Barrow).
“Authoritarian regimes” are described as where elections take place but are either rigged, or operate within a system that in other ways works to prevent dissent and ensure the regime remains in office.

Kenyans have a reason to be happy that we are not Gambia under Yahya Jammeh or Egypt under Sisi, or even Uganda under Yoweri Museveni. We are not a one-party state.

But should we be complacent?

It is not right to insist on being permanently pessimistic (a trait of academics, who love to find problems with anything, and Kenyans — who tend to greet new developments with initial enthusiasm and soon shift to suspicion and negativity).

For example, we have had presidential elections with eight candidates. In many countries, credible opponents to incumbent presidents have been disqualified. In Egypt, a candidate must have the support of at least 20 existing MPs— but the existing President has the power to appoint as many as that. And the other MPs eligible to support a candidate are only enough to support at most three.

When a young blogger circulated a photoshopped picture of Sisi with Mickey Mouse ears, he was sentenced to three years in prison. Gado, Vic and other cartoonists, whose critiques are often savage, are still allowed to work and publish.

But “The price of liberty is eternal vigilance” is not just a cliché. Vigilance involves not knee-jerk suspicion, but avoiding naïve optimism and assuming “It can’t happen here”.

FREEDOM OF SPEECH

Sometimes one wonders why cartoonists can still publish. Can it be because government believes that what is in the newspapers doesn’t have much impact? But they get more worried about social media: read by more perhaps, and by the young.

Article 19, an NGO on freedom of expression, documented a large number of attacks on the right to expression, especially against journalists, in 2017-18. They found 43 instances of assault on journalists and added, “Cases of attack on the freedom of expression were documented in 15 of the country’s 47 counties. Supporters of various political formations were the main culprits followed by police, private individuals and unknown assailants.” Police should be the protectors of journalists, and others, including against political party supporters.

Article 19 was among those who protested about the introduction of the cybercrimes law that created vague crimes with harsh punishments. The law is somewhat like old British colonial laws that penalised “false news”. We can see how useful governments may find them from President Donald Trump’s fondness for attacking “fake news”. A law attacking false news without any necessity to prove any harm, or that the person making statements intended to cause any harm, is a great tool for crushing unwelcome criticism. The Ugandan Supreme Court declared false news laws unconstitutional in 2004. We had already repealed them. It is no democratic progress to try to bring them back in the cyberspace context.

Still on expression, and level playing fields, who pays for Presidential Delivery Unit “Government delivers” signs on the Kenya National Highways Authority bridges? Admittedly, this is not formally an election period (though any time seems to be election time in Kenya).

UNDERMINING INDEPENDENT OFFICES

The Constitution sets up a number of bodies and offices, for several possible reasons. One may be to take decisions that ought not to be party political out of the hands of politicians, perhaps because they require technical expertise. Another is to ensure equality before the law: To prevent obstruction of accountability by political interests or desire to protect public officers.

Some of these are being undermined. Take the Director of Public Prosecutions. That office is supposed to take to court those suspected of crimes, and against whom there is evidence likely to get a conviction. The DPP does not have to prosecute, but must make a judgment on whom to pursue without fear of reprisals or favour to those in power. It is not that the Executive must be silent on policies. But neither the President nor any other person should direct the DPP on which specific cases to pursue.

But recently the media, and citizens too, think they see the hand of the President in the corruption prosecutions. A particularly unfortunate example is the prosecution of the Deputy Chief Justice. Precisely because the President promised to wreak revenge on the Judiciary for the election petition case last year, it is hard not to see, or imagine, some connection between the DCJ’s arrest and the President’s threat.

Taking a step further back, the former DPP had only about a year of his term of office to run. The Constitution limits the DPP’s tenure to prevent too cosy a relationship developing between him or her and either the Executive or the criminal classes. The removal of the DPP is hard – exactly to stop the Executive removing from the scene a DPP who is prosecuting government people, or not prosecuting its enemies.

But the President found another way to entice the DPP from office – by making him a Cabinet Secretary. Imagine the impact on future DPPs: “Rather than being jobless after this, if I am a good boy (or girl) in the eyes of the President, I may get another plum job”.

We have many parastatals. They are created to ensure expertise, and non-political –sometimes-commercial – decision-making. But if appointments are a matter of political patronage, as so many have recently been, independent, technical decision-making is bound to be compromised.

THE JUDICIARY

Kenyans gave up on the idea of Attorneys-General being independent minded; the appointment is now political. But the Judiciary must be independent, which requires separation between government and the courts. But what happens (or might just happen) if judges, so hard to sack, can be persuaded to become the government’s legal adviser?

Members of the Judiciary feel they have been “revisited” using Uhuru’s threat. They may be joking, but the cut in its budget (admittedly by Parliament, but doesn’t the legislature usually do the Executive’s bidding?) and now the attack on the DCJ (deserved or not) makes the Judiciary feel insecure. Judges are human. How can we be sure they are not temped to go easy on the Executive (or Parliament) for fear they exacerbate poor relations between the branches. We are not arguing that poor relations are a good thing, but from time to time, they are inevitable if the Judiciary is doing its job.

And then there is the Judicial Service Commission. It is intended to shield the Judiciary from political domination. But Parliament and the President seem determined to bring it to heel, and, through it, the Judiciary.

Media reports indicate discussion may take place between the Judiciary and the President, and with Parliament. But when we know that other branches are unhappy with court decisions, closed-door contacts make some of us uneasy.

IS OUR CONSTITUTION PLASTICINE?

A conference speaker likened the Egyptian constitution to plasticine: Capable of being moulded to any shape to suit the government.

We believe our Constitution is more like memory foam: Yielding a bit to pressure to avoid damaging conflict, but springing back into shape. But, with the assaults on accountability institutions such as the IEBC, the EACC and the Auditor General, as well as those discussed here, it is under some strain.

By JILL COTTRELL GHAI and YASH PAL GHAI