The electoral crisis has prompted various calls for radical changes to the Kenyan state and polity. Some of them would involve the destruction of the state of Kenya, and others the demise of democracy. All purport to be intended to avoid expensive and divisive (especially in ethnic terms) elections. Some are touted as the remedy for our plague of politicians with their lack of skills, their quarrelsome mentality, and greed. All would probably spell the death of democracy and the abandonment of the 2010 Constitution.
There are broadly three categories of proposal. One is that Kenya should be dissolved into a number of independent states, based presumably on the basis of ethnicity. A more modest proposal is that Kenya should be converted to a “federation” along ethnic lines.
Another proposal is the replacement of democracy and elections by the rule of bureaucrats. There would be no elections: Governance would be vested in the hands of senior civil servants, who presumably would also recruit new entrants to public, thus perpetuating a new class.
The third proposal carries the notion of a self-selected individual or group holding the powers of the state even further. It is none other than dictatorship. Presidents Paul Kagame (Rwanda) and Yoweri Museveni (Uganda) are sometimes pushed as models.
FEDERALISM OR DIVISION?
A country with 44 official recognised tribes (and a lot more unrecognised) is hard to convert to a federal state or broken up in a number of independent states without agreement on a host of difficult issues (like how many countries of states, their boundaries, who gets what natural resources, distribution of powers among the federal authorities and the units, and many other financial issues). Probably the situation would end up in a majimbo type break up, a deal between the six or seven big tribes is no recipe of lasting peace. There is little evidence that those who propose these solutions have any understanding of the complexity and difficulty of splitting a sovereign state into a number of independent states or into federal units/ states. We should remember that both federations and break-up of states have been singularly unsuccessful in Africa.
This would be a return to a colonial system, which was largely rule by unelected and unaccountable bureaucrats, but with the real authority in London missing.
There would have to be some mode of appointments, discipline and removal. Would this mean that the real government was the Public Service Commission? But how do we elect (I am sorry I meant appoint) PSC members? The record of the PSC as regards the appointment of the public service does not inspire confidence in its impartiality as the National Cohesion and Integration Commission has shown how recruitment and appointment in the public service is less than fair and often goes against the norms of the Constitution.
Presumably, the advocates of dictatorship imagine it would be benevolent. Or would they be satisfied with stability regardless of fairness?
I am tempted to suggest that some of our problems stem from the dictatorial ambitions of our existing system. Our checks and balances are not working as they should. The President controls not only the Executive but also Parliament. Parliament tried to give him greater control over the Judiciary, and succeeded in giving him greater control over the police. He clearly lusts after more powers, refusing to recognise constitutional limits. Force is preferred over persuasion and equity as ways of achieving stability. Dictatorship means intolerance of dissent, a puppet Parliament and courts. Intolerance of dissent is already seen in attempt to wind up civil society bodies.
Dictatorship is incompatible with devolution for how can a dictator tolerate a different view and approach to government within the state? We already see repeated attempts to undermine his most game changing of constitutional innovations.
Stability is not, of course, the result of these various developments, rather resentment and division. Especially, when the underlying motive seems to be the entrenchment in power of a particular ethnic group.
What sort of cloud-cuckoo land do advocates of dictatorship inhabit? It seems to be assumed that a dictator would emerge through some mysterious process, and could rule the country in peace and harmony. The reality would, surely, be the Idi Amin model, with both the assumption of office and the exercise of power being by the force of arms. Those who propose it (including not surprisingly a senior Jubilee member) seem to have short memories. Kenyans have had dictatorship forced on us and we did not like it. Who wants the return of the brutality, corruption, and (yes, ethnicity) that were the hallmarks of Jomo Kenyatta and Daniel arap Moi? Who wants to abandon their rights and dignity to such crooked and ruthless leaders?
All these proposals are deeply threatening to our society and our economy. Generally, they are not motivated by any desire for the good of the nation or even of the tribe, but of the individuals especially in the case of the dictatophiles (coining a word to mean lovers of dictatorship). The fact is that our elections are essentially about the capture of the state and of its resources, relying on ethnic support and the exclusion of others from those resources. In fact, it seems improbable that those who promote the ideas are making serious proposals about the future of the nation. At best they are lashing out at opponents in frustration and at worst are issuing threats intended to stifle disagreement.
BACK TO THE CONSTITUTION
Free and fair elections are of course central to a healthy democratic system. The critics of democracy who have seized the opportunity to propose its demise have not really addressed the causes of the problems of the electoral system. These eminent authorities have not paid sufficient attention to the causes of the problems of the electoral system. There has been little discussion of why democracy, and elections in particular, lead to conflict. Without proper understanding of causes and consequences of elections and democracy, it is most improbable that a solution can be found.
In fact, we do have quite good understanding of the sources of our problems. And our Constitution is a response to those understandings. The Bill of Rights, our national values, the limits on excessive state power and separation of powers, the rule of law, the stress on public participation and the protections for minorities and for our culture and our diversity are the main ways the people of Kenya decided to approach the rebuilding of the nation. They are far more constructive and effective than fantasies of rule by bureaucrats or dictators.
Let us rejoice in our democracy, and recognise the central role of elections. Let us return to the Constitution that the purveyors of these ideas reject. It does not only strike a far more cheerful note than the dirge of dictatorship or the moaning of the prophets of doom, who would sound its death-knell and that of democracy. It is also far more in tune with the aspirations of Kenyans than the praise-singers of Museveni and Kagame. As the Supreme Court has held, it contains much of the recipe for honest and peaceful elections. Similarly, it is a realistic blueprint for a fully functioning democracy and effective administration. As the Court said, “Let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer”
By JILL COTTRELL GHAI and YASH PAL GHAI