1.Promise of democracy
An overarching theme of the 2010 constitution is democracy. Perhaps no other constitution in the world has paid so much attention to democracy. A significant part of it defines it, and an even larger part establishes the institutions and procedures for establishment and promotion of democracy. The constitution tries to capture the vision of Kenya envisaged by those who struggled for constitutional reform and laid the seeds of a new constitutional order. The basis of democracy is the sovereignty of the people, who are responsible not only for electing the legislature and the president, but for playing a continuous role in the making of policy through and holding elected leaders responsible for their acts. The primary reason for this approach is Kenyan’s sad history of dictatorship.
The constitution is not merely about setting up state institutions and the electoral process. It is largely about the values and principles that underlie our vision of democracy and binds all state institutions to respect and promote them. The state’s primary objective is to promote the rights and welfare of the people. The constitution prescribes key elements of state policies and gives the people a major share in their shaping. It holds the state accountable to the people.
In order to understand the basis of democracy in the new constitution, it is necessary to see how democracy was destroyed by the first two presidents.
- Failure of democracy
Democracy at independence failed because most people had no proper understanding of democracy. Colonial rule had been the opposite of democracy. From the beginning there was little discussion of social and economic policies as politics were dominated by ethnicity, especially under the two presidents. Consequently Kenyans did not develop a national identity or concern with the welfare of the people as a whole, thus stunting our democracy. From the very beginning, under Kenyatta and Moi, there was massive corruption, including theft of state resources. Elections became about control of the state, not public policies to be pursued through it. Purely by bribes to parliamentarians, Kenyatta was able to destroy the independence constitution and replace it by an authoritarian political system. Opposition parties were banned, and for a period of time, Kenya became a one party state. The electoral process was also corrupted; often extreme violence was used to ensure the ‘victory’ of the party of the president. The judiciary was subverted and few legal challenges to elections were ever successful.
With the abolition of majimbo, the government became highly centralised, without accountability, an essential element of democracy. Accountability became impossible also because corruption was so pervasive. The plundering of the state also increased disparities of wealth, with little regard to the hardships faced by the poor and marginalised groups.
Democracy was replaced by militarisation of the state, as when Kenya was a colony. Violations of human rights, particularly those connected with democracy, like freedom of expression, association, assembly and marches, as well as the occasional killing of politicians committed to fair elections and social justice, were deeply antithetical to democracy. The rule of law ceased to exist.
- The framework for democracy in the 2010 constitution
The constitution deals with most of the problems that had prevented the growth of democracy. It establishes values and principles to govern the conduct of the state and the nation. The foremost value is national unity, as a firm basis for democracy, with common interests and aspirations of the people, and moving away from ethnic politics (this last point is reinforced by the rules regulating the registration of political parties — they must have a national character, and must promote and uphold national unity).
Another value is the sharing and devolution of power, to break up the monopoly of state power, spreading power throughout the country, and making government more responsive and accountable to the people — democracy at all levels of government.
The concentration of state power is also broken up by the division of powers at each level of government between the legislature, executive, independent commissions and the judiciary. Nor should we forget the people, in whom sovereignty rests, and who may play an important role in policymaking and the accountability of state institutions.
One of the most comprehensive Bill of Rights in the world strengthens the foundations of democracy, guaranteeing the political rights of all citizens, the right to form political parties, and rights and freedoms of conscience and belief, expression, free media, association, assembly, demonstration, picketing and petitioning.
Many other human rights provide the basis of policies that the state must enact and implement, on education, health, sanitation, water, housing, food and nutrition, as well as fair decisions of the government in respect of administrative action and decisions.
Strong foundations of democracy are established by the people’s right to elect their in free and fair elections, at both national and county levels, conducted and supervised by an independent commission — and by the freedom to remove them if they fail to discharge their duties in accordance with the constitution.
All state institutions including the president and governors, legislatures and public servants must pass tough tests of integrity to hold office. Also they must perform their duties in strict accordance with the constitution and the law, and must promote national values and principles.
Two other features should be noted. The scheme of the constitution confers significant powers to ensure aws and policies conform to the constitution. People are given easy access to the courts to uphold the constitution; courts have the final say on the interpretation of the constitution. This affirms another national value: the rule of law.
The second feature is the demilitarisation of the state. Kenya is no longer a colony whose subjects have to be subjugated by the brutality of the police and the army. Now their primary role is the protection of citizens’ rights, freedoms, property, peace, stability and prosperity. Article 238(2)(b) decrees that “national security shall be pursued in compliance with the law and the utmost respect for the rule of law, democracy, human rights and fundamental freedoms”.
- Fortunes of democracy
The fortunes of democracy have been mixed. Previous articles in this column have addressed some aspects of democracy, showing an uneven record. It was only in the middle of the five years of the constitution that the first general elections, a key test of democracy, were held. The elections were extremely badly organised, expensive equipment did not work, tallying of votes took place in suspicious circumstances, political parties did a poor job of primary elections, there were many accusations of bribery, and the electoral commission was accused both of inefficiency and corruption. Political parties continue to have an ethnic bias, and the cause of national unity has suffered as a consequence of the behaviour of both the electoral commission and political parties. People’s participation in public affairs has been less than impressive (not entirely their fault — state authorities have shown little enthusiasm for it). The orientation of most of them is ethnic rather than national.
Of state institutions, the president has been the one most responsible for undermining the constitution. It is clear he would like a constitution which minimises human rights, transforms the police into the colonial model, asserts the supremacy of the executive over other organs of the state, and removes safeguards against presidential abuse. Parliamentarians have fully disgraced themselves, placing their own personal interests above all, legislating on recall of MPs so that it becomes virtually impossible to recall them, their unprecedented greed, and lack of attention to their real responsibilities so that poorly drafted legislation, sometimes inconsistent with the constitution, has sailed through. Independent commissions have done a good job on the whole, particularly independent offices. The judiciary comes out best, especially the constitutional division of the High Court with its heavy responsibilities for ensuring the compliance of institutions with the constitution. But alas, we enter the New Year with allegations that corruption is creeping back even into some sections of the judiciary.