Supreme Court judgment a paradox of democracy

 By Peter Kagwanja

Posted  Saturday, March 30   2013 at  21:57

IN SUMMARY

• History may well judge 2013 as the “finest hour” of Kenya’s judiciary and its democracy. But, ultimately, the surest way of consolidating democracy is respect for the sanctity of the rule of law by all.

But Kenya’s unfolding democratic renewal is hardly a lone event. It is best understood in terms of the global ebb and flood of the life-tide of democracy that has washed over the world in the past two centuries.

It was the Harvard University political scientist, Samuel P. Huntington, in his 1991 book, The Third Wave: Democratisation in the Late Twentieth Century, who popularised the idea of democratisation on a world scale as coming in three waves.

Sadly, Kenyans were on the lee side of democracy’s first wave, which washed over the world from the early 19th century.

As Andrew Jackson was unleashing the spirit of democracy (“Jacksonian democracy”) that gave the common white American male the right to vote, the architects of colonial fascism were in an orgy of conquest, typically involving frenzied “exploring,” “discovering” and taking away the democratic rights of Africans.

Expectedly, Kenya was not one of the world’s 29 democracies at the peak of the first wave — which, however, ebbed abruptly, leaving 12 democracies in place as fascism swept over Europe in the 1922-1942 hiatus.

By dint of its legal “principles of subornation” that the legal historian, Martin Wight, described in his book,British Colonial Constitutions (1952), colonialism proved too rocky, thorny and infertile a ground for democracy to grow. Overnight, it turned Kenyans from right-bearing citizens into subjects without freedom.

However, a sustained nationalist struggle — culminating in the Mau Mau war of liberation (1952-1962) — saw a shift in the wind of freedom and democracy, elevating Kenya to the windward side of “democracy’s second wave” that began with the Allied victory in the Second World War and lasted into the mid-1970s.

The country ascended to uhuru (freedom) in 1963 with what historian Basil Davidson lampooned as “flag independence” — anchored in the Lancaster House constitution (1963) that provided for eight ethnically contrived regions, a two-chamber legislature and an expatriate-dominated judiciary with the British Queen as the head of state and a Kenyan prime minister as head of government.

Pundits of the exiting colonial power had, belatedly, cobbled together a mongrel of a Westminster model of democracy overlaid with relics of colonial despotism and a creeping “ethnic federalism” (majimbo).

With this, genuine democracy was still a bridge too far — and Kenya barely made it to the list of 36 recognised democracies in the world by the early 1960s.

Cold War politics and a raft of changes to the Lancaster constitution gave rise to the one-party state from the late 1960s that pushed the country into the abyss of tyranny.

The centrepiece of one-party despotism was an all-powerful “imperial presidency” propped up by what theoretician Frantz Fanon satirised as “ethnic aristocracies” across Africa — that eclipsed all scope for legitimate dissent.

Kenya’s one-party dictatorship capitulated to the “Third Wave Democracy” — a term that Samuel Huntington coined in 1991 to describe the astonishing global surge of democracy following the collapse of the Berlin Wall, the Soviet empire in Eastern Europe and one-party regimes across the Third World.

Kenya has since been touted as one of Africa’s most promising multiparty democracies. It was the repeal of Section 2A as the legal lynchpin of the one-party system under the old constitution that returned the country to multiparty politics.

However, scholars cautioned against premature celebrations of democracy’s triumph. In Kenya as elsewhere in Africa and Eastern Europe, economic instability, elite political mobilisation along ethnic lines, military interference in civilian affairs and cycles of politically instigated electoral violence created fragile democracies with weak or no institutions to consolidate democracy.

Kenyans voted in multiparty elections in 1992, 1997 and 2002. But the country’s democracy became a classic case of Africa’s “trapped democracies.” Its one-party leadership and culture remained intact, safeguarded by the mutilated Lancaster constitution, fragile institutions and continued domination of politics by ethnic elites.

Optimism ran high after the 2002 “NARC Revolution” that ended nearly four decades of KANU’s one-party monopoly on power, rekindling the promise of a robust democracy, an end to corruption and a recovery from its economic malaise.

But the 2007 electoral dispute and the ensuing violence delivered a tragic and violent setback to Kenya’s democracy. Hard on the heels of this democratic rollback, political scientist Larry Diamond, writing in theJournal of Foreign Affairs (March/April 2008), warned of the world facing a “resurgence of the predatory state” and slipping into a “democratic recession.”

However, in August 2010 Kenya found the correct pathway to democratic consolidation when nearly 70 per cent of Kenyan voters endorsed a new liberal Constitution, providing a roadmap to democratic recovery.

The new supreme law clipped the wings of the “imperial presidency,” which was now to be checked by a new two-chamber legislature and independent constitutional commissions, including an Independent Electoral and Boundaries Commission (IEBC).

It also provided for a reformed and expanded judiciary with a new Supreme Court mandated to resolve disputes arising from presidential elections.

Devolution

Further, it created a new devolved system comprising 47 counties to transfer power and resources to the grassroots and tackle historical injustices by allocating an Equalisation Fund to neglected regions.

The Constitution served as a credible blueprint for the 2013 General Election, Kenya’s 12th in 50 years and the fifth in the multiparty era.

But, Kenya needs to take even bolder measures to fully pull back from its democratic recession.

The country must address the creeping fear of “tyranny of numbers” where Kenya’s five largest ethnic groups constitute over 70 per cent of the population — Kikuyu (21 per cent), Luhya (14 per cent), Kalenjin (13 per cent), Luo (12 per cent) and Kamba (11 per cent).

It is necessary to reassure the 37 minority groups that their vote also counts.

Pundits and policy makers should consider a Kenya’s “First Amendment” to the new Constitution, particularly article 138 (4) on the procedure of electing a president, to provide for an electoral college votes system based on the 47 counties.

In the post-2013 election and the Supreme Court petitions, Kenya rode the crest of the tidal wave of democratic transition.

History may well judge 2013 as the “finest hour” of Kenya’s judiciary and its democracy. But, ultimately, the surest way of consolidating democracy is respect for the sanctity of the rule of law by all.

Prof Peter Kagwanja is the chief executive officer of the Africa Policy Institute. This article relied on the findings of the API report, Kenya Rising: Democratic Resurgence after the March 2013 Elections (2013) www.africapi.org
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