Our elections are a massive violation of the Constitution


The Constitution of Kenya Review Commission paid great attention to the purposes and the rules of elections.

For a long time, Kenyans had no real elections (thanks to Presidents Jomo Kenyatta and Daniel Moi), and when “fair” elections were restored, the sitting President-candidate was in a good position to ensure victory (if only by switching off electricity as votes were counted). Cheating in elections had many negative consequences, including putting the future of the country in jeopardy. The objectives and procedures of elections as elaborated by the CKRC, were largely, if not entirely, accepted by Bomas and the Committee of Experts — and then eventually by the people, by a huge vote.

IMPORTANCE OF ELECTION

Elections are a reaffirmation of the sovereignty of the people — they choose the President, governors, and legislators. They are critical to democracy, which is a corner stone of the Constitution and our political system. They are a means of securing accountability of the government for their last five years’ performance, on the basis of which — and not the last minute “gifts” — the people decide how to vote.

They are the means of reaffirming the values of the Constitution, particularly integrity, national unity, human rights, social justice, good governance and accountability. Kenyans who believe that the 2010 Constitution is the best we have ever had (and I believe they are a substantial majority), should be guided in the way they vote by the respect for these values that candidates showed while in office, or which their record suggests that they will uphold.

ETHNICITY

People should particularly resist the lure of ethnicity spread by politicians. The ethnicisation of politics, back to the days of Kenyatta and Moi, has been the major cause of our problems as a nation (including massive killings and displacement of Kenyans). To counter this problem, the Constitution re-organised the electoral system by setting qualifications that parties must have to be registered to contest elections.

A political party must have a “national character”, meaning it must promote and uphold national unity, and have at least a minimum number of registered voters reflecting regional and ethnic diversity as its members in half of the counties, and in its the management team. More generally, it must show commitment to national values and principles, including respect for minorities and marginalised groups. A party cannot be established on the basis of religion, language, race, ethnicity, gender or region or promote hatred on any of these grounds.

OTHER PROHIBITIONS

The Constitution prohibits political parties from engaging in or encouraging violence by, or intimidation of, their members, supporters, opponents or anyone else. Nor may they establish or maintain a militia or similar organisation. These rules are intended to ensure that the election campaigns can be conducted peacefully and that the voters have ample opportunity to engage with candidates on their past record and plans for the future.

Parties are not allowed to engage in bribery or other corruption. Nor must they accept and use public resources, including public servants, to promote their interests or those of its candidates in elections.

Election campaigns may not be started until the IEBC authorises it. After this date, the government may not advertise its achievements. Candidates may advertise theirs — at their own expense. An important reason for this is to enable the government and the legislature to carry out their responsibilities without disturbance.

NOW FOR THE REALITY

Readers of the Star and other media scarcely need to be told that political parties, particularly those associated with the national government, have broken all the above rules and prohibitions, without any reprimand (not even by the IEBC, though this is among its duties).

President Uhuru has been accused of having used huge state resources to promote his campaign. He has made liberal use of public officers for the advancement of his and his party’s electoral prospects. He and his party have been accused of using state money for personal and party purposes — advertisements, payments of various kinds, and disbursements of largesse. He is also very fond of conferring citizenship and distributing land titles — thus usurping the responsibilities of officials (it seems with the connivance of his chief legal advisers). Uhuru has shown on various occasions that he and his advisers have no regard for the rule of law — a key national value.

There is ample evidence of the politics of ethnicity — in respect of which most parties are culpable. Many political rallies have been marked by violence and even the odd death, for which the parties must take responsibility. Both major parties began their election campaigns nearly a year ago — in gross violation of the law. One wonders how UhuRuto have found time to deal with their responsibilities under the Constitution and other laws in the last 12 months, or provide leadership to public officers — or indeed to the nation. The rush to campaign a year before the election is also demonstrated by governors and parliamentary members, who have abandoned huge lists of urgent business (including a considerable number of legislative Bills, some of great importance).

Rallies are not conducive to an exchange of views with the audience, enabling them to form an impression of the merits of policies. Nor is much attention paid by the voters to the record of the candidates. Without that understanding, it is not surprising that the real factor determining how voters vote is the amount of bribes or some other benefits — to which many voters turn due to abject poverty, the result of the policies of the very government they may send back to power. The lack of proper manifestos, till now, is significant. Without policies, how can people vote: Only for individuals or tribe, or because of bribes.

A LAW UNTO THEMSELVES: THE CONSEQUENCES

The consequences of the above breaches of the Constitution, and the law go well beyond the elections or the formation of government. They are both more extensive and more critical, and more corrosive.

Corruption gets worse and erodes all sense of morality and propriety.

The lack of sense of loyalty, as politicians shift from one party to another, must have knock-on impacts in other spheres of life: Why should anyone be loyal to anything or anyone?

Constant use of abuse, especially by leaders towards those of other parties, and the increasing use of electoral violence encourages general lack of respect, and breed violence in other sectors, contributing to the rise in abuse and violence in society.

We have lost all sense of public morality. Integrity, so deeply valued in the Constitution, has gone out of the window. Politicians of great seniority leave their party if they are not nominated and join the rival party without any qualm. A significant number of candidates well known for their theft of state resources are adopted by political parties. Politics are no longer about serving the people, but serving the politicians.

Even more worrying are the consequences of the resort to the use of money to achieve political power. Elections now depend heavily on how much money a party can mobilise. Here the party in power has a distinct advantage, since it can force the Treasury to grant money for projects that favour the party, as well as floating obscenely huge loans from overseas markets, which we have no real prospects of returning for a long, long time, thus adding to the loan.

Even more worrying is the impact this practice has on local realities: The passing of state power from the people or even from the political class to tycoons, astute but somewhat shadowy characters who now seem to run the government and — increasingly — society.

Some members of the political class are now entering this exclusive group, making them even more invulnerable. The force of ethnicity has become even stronger, with the alliance of some senior politicians in charge of the state and their tycoon associates, often from the same tribe.

By Yash Ghai @katibainstitute

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