Kenyans made many sacrifices for the new constitution because the Moi government had lost all respect for their rights and freedoms. Democracy had been steadily eroded, first by Kenyatta, and then a thorough going way by Moi—ending in a one party system but more accurately in a one person rule. The rule of law had ceased to exist earlier in Kenyatta’s regime, in which Moi of course played a key role. There was little security of life or property. Plundering both the state and the people, Kenyatta and Moi amassed huge fortunes, which were passed on to their children. People had no redress; the judiciary, beholden to the presidents, was for the most part itself corrupt. So were the police and the military.
Demise of democracy
The principal beneficiaries of these regimes were relatives and friends of presidents and ministers, mostly members of their own tribes, and over whose thefts and illegalities there were no sanctions. Fortunes were made through land grapping, monopolies, senior governmental and parastatal jobs, which not only ensured high salaries but also opportunities of the embezzlement of state resources. In these circumstances there was no need for skills, what mattered was connection with presidents and ministers. Soon it was possible to distinguish the rich and the poor, and their live styles: one group living in great luxury, the other mired in poverty. It was not the case that all ethnic members of the president became rich, many in fact became impoverished by the greed and illegalities of their so-called leaders. Thus began the distinction between ethnicity and class, which the politicians now spend so much time obfuscating.
An excellent exemplar of this style of politics is Jomo Kenyatta, who built solidarity among the Kikuyu for personal gains (the capture of the state), and ignored their own needs. Rev. John Gatu’s recent autobiography provides a clear account of Kenyatta’s exploitation of Kikuyu ethnicity, in large part for his own benefit and which led to serious rifts between the Kikuyu and other communities. Kikuyu hegemony has since then become the motto of Kikuyu politicians and business people. And “leaders” of other communities have followed the Kikuyu model, as is obvious to all—not to help the community, as they allege, but to increase their own status in inter-ethnic politics. Kenyatta also taught us that money could easily buy politicians. It was bribery with money and state office that enabled Kenyatta to demolish the independence constitution, including majimbo, despite the high degree of constitutional protction —like a 90% vote in the Senate (especially created to protect majimboism), within a year. Moi, the leader of majimboism, who had fought hard for it at the London conferences, to protect Kalenjin and other minority groups, not only engineered this huge majority for its abolition but joined the Kenyatta cabinet—and abolished KADU. If Kenyatta symbolised one strand of politics, Moi did another: money and power are all that count. Crossing the floor for personal expediency became the pre-occupation of politicians.
Restoration of democracy
The objective of the 2010 constitution was to bring about fundamental changes in state and society. These changes are well captured in the preamble and Article 10. A major objective is peace and national unity, while recognising our ethnic, cultural and religious identity, based on democratic principles. The system of government which people desperately longed for is to be based on essential values of human rights, equality, freedom, democracy, social justice, good governance and the rule of law. Article 10 adds to this list integrity—so important given the creed of our politicians and civil servants, and their business friends, that a whole chapter (number 6) is devoted to it. Much care went into the restructuring of the state to achieve these objectives, starting with vesting sovereignty in the people, exercised in different ways, most fundamentally in electing and removing members of parliament and county assemblies, and partnership in making laws. Kenyans are encouraged to exercise their rights and freedoms, and to seek the assistance of independent commissions and above all a re-organised and strengthened judiciary to protect and promote their rights. Access to courts for remedies against state authorities (including presidency and parliament is now easy—and citizens have begun to make use of it. Apart from strengthening the judiciary, an independent director of prosecutions has been established. My interest in this article however is the political and electoral processes.
Role of political parties
Great care was also taken to ensure a truly democratic political system, for only then could rights and freedoms and social justice prevail. Political parties were perceived, rightly, as central, to provide the basis of both democracy and national unity, respecting human rights, and avoiding ethnicity, race, religion, or region as their basis. From the very beginning, however, it became clear that the conflicts of interests between politicians and the people could not be so easily erased. Political parties in Kenya had not been champions of democracy, rights or justice. And now, while citizens looked forward to a future of equality and equity, the politicians plotted the seizure of the state, as a means to grabbing national resources, fomenting ethnic conflicts, and marginalising civil society. Consequently great attention was paid by the CKRC to how parties could be made responsible to the people and to pursue national values set out in the new constitution. The principles governing parties are set out in the Constitution and the detailed framework in legislation.
Promoting national unity is defined as a primary responsibility of political parties. As a way of promoting national unity (stipulated as the responsibility of parties), the parties must themselves have a national character—meaning, among other factors, having membership reflecting the diversity of Kenyans (including “minorities and marginalised groups”) and having nationwide presence. Parties must not be “founded on religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred of any such basis”. They must observe high standards of integrity; in particular not engaging in bribery or other forms of corruption. In order to avoid the violence that had become so endemic among political parties, the Constitution prohibits them from engaging in or encouraging violence by intimidation of its members, supporters or opponents, or from establishing paramilitary or similar organisations.
Parties themselves must respect democratic principles, by electing their governing body, observe principles of good governance, hold regular elections for offices etc. within the party, and respect the right of all persons to participate in the political process. They must respect and promote human rights and freedoms, including gender equality and equity—and more broadly they must promote constitutional objects and principles, including the rule of law. To ensure that these rules are respected by the parties, the independent office of Registrar of Political Parties is established, with authority to refuse to register parties, or de-register parties, that do not fulfil these terms. An independent Political Parties Disputes Tribunal to deal with party based disputes has been set up.
Functions of political parties
Most Kenyans think that the function of a political party is to win elections, regardless of its tactics: intimidation, bribery, corruption, breaking up meetings of opposing parties, mobilising ethnic hatred, or cheating at the polls or vote counting. This is not surprising because that is exactly how the major parties behave. In a democracy, these tactics are unlawful, as they are in Kenya. A key function of parties, totally ignored in Kenya, is formation of policies offered to voters. The Political Parties Act makes this clear, saying that parties (a) shall promote policy alternatives responding to the interests, concerns and needs of citizens; (b) respect and uphold the democratic processes as they compete for political power so as to implement their policies; and (c) promote consensus building in policy decision making on issues of national importance.
The Act makes clear also that the role of parties is not mindless attacks on other parties. It says that: A political party shall promote inter-party relations by: (a) ensuring free competition among political parties in respect of different political views and principles; (b) fostering trust and confidence through mechanisms for co-operation; (c) managing and mitigating political differences through constructive dialogue enhancing harmony among the parties; and (d) promoting national reconciliation and building national unity.
Largess for political parties
To prevent the illicit collection of money, the law provides for grants of funds to political parties which satisfy certain criteria. The amount must not be less than 3% of national revenue. The distribution of this fund favours the already well established political parties, being based on the percentage of votes obtained by the party. However, the fund must be used to promote democracy, encourage people’s participation in political matters, provision of civic education, influencing of public on policies of the parties, and promoting the membership of women, disabled or disadvantaged in legislative bodies. Political parties can raise money from other sources, but they must be lawful sources, and there are limits on the amounts that may be raised in this way.
It is obvious that the parties have not been deterred from raising or extorting money from other sources. It is well known that huge sums of money are collected by politicians, from sources which then depend on favours from the recipient, once in office. No individual or even party can envisage standing in elections unless they have huge sums of money to buy votes with.
The system of illicit funding has had a most negative effect on integrity among politicians and civil servants and in the private sector as well—a violation of one of the most important constitutional values. So pervasive is corruption, largely for electoral purposes, that our well endowed president admitted that he (and presumably his government) could not control it. This is a great indictment on the prevalence of the violation of the fundamental principles of the Constitution.
The Constitution provides for a fundamental reform of the electoral system, aimed at “ free and , fair elections, “free from violence, intimidation, improper influence or corruption”. The election must be conducted by an independent body to ensure that it is transparent, and administered in an impartial, neutral, efficient, accurate and accountable manner. A great deal of detail to achieve these goals has been set out, iucluding that the voting system should be “simple, accurate, verifiable, secure, accountable and transparent”. However there have been few elections in Kenya’s history which have not been criticised for unfairness, corruption, and most of all, violence. Even the first elections under the new system escaped a measure of violence.
Despite the optimism about the new Constitution, politics have changed little. As we approach the general elections, it has become clear that the parties have no respect for its values. The old system of violence, corruption, party- funded and organised political rallies (geared more to attacks on opposing parties than discussion of their own policies), and exchanges of insults with their rivals have marked the start to the elections. Kenya has the irritating habit of starting election campaigns almost a year before the elections, instead of what sensible countries do—about three weeks. We have already seen massive use of violence. The government has ensured that the police and army have become enemies of the people, instead of friends as the Constitution prescribes. Civil society has been chastised for its betrayal of the national interests, and the rights and freedoms of citizens and foreigners alike are under threat from a nervous president. The quarrels among politicians on basis of purely personal issues have debased us as a nation. We as Kenyans are ashamed of our political “leaders”.
Prof Yash Pal Ghai
The author was the chair of the CKRC and the Kenya National Constitutional Conference and is a Director, Katiba Institute.