Re­flec­tions on a visit: Demo­cratic pluses and minuses

Nairobi Law Monthly - - Letters -

Af­ter al­most five years, I re­turned to Kenya for a whirl­wind two-week visit in late Oc­to­ber and early Novem­ber. My visit co­in­cided with the fifti­eth an­niver­sary of my first visit to Kenya for two years in 1965, less than two years af­ter in­de­pen­dence, when I was a re­search fel­low at the In­sti­tute for De­vel­op­ment Stud­ies at the Univer­sity of Nairobi. My over­ar­ch­ing sense is that Kenya's democrati­sa­tion mo­men­tum may have reached a plateau. Democ­racy is firmly rooted in im­por­tant ways that one can eas­ily over­look in the mael­strom of con­tro­ver­sies, many very se­ri­ous, that swirl con­tin­u­ally. But I did not sense any ar­eas in which Kenya is still be­com­ing more demo­cratic than in the past, with the pos­si­ble ex­cep­tion of de­vo­lu­tion. I sense that Kenya's democrati­sa­tion has not ar­rived at a sta­ble plateau but rather one that is per­haps at a tip­ping point in a strug­gle be­tween, on the one hand, those seek­ing to sus­tain and em­ploy to the max­i­mum ex­ist­ing demo­cratic pro­cesses and in­sti­tu­tions and, on the other hand, those that threaten to un­der­mine much that has been achieved to date.

In pro­found and un­der­ex­plored ways, I am per­suaded that the in­ter­na­tional political and eco­nomic cli­mate, on bal­ance, may not be as sup­port­ive of sus­tain­ing and fur­ther­ing democrati­sa­tion as it might be, the decade of the 1990s be­ing a sin­gu­lar Hal­cyon mo­ment in this re­gard. And, as I've con­fessed be­fore, I am also not sure that academics like my­self have quite cap­tured the political econ­omy of democrati­sa­tion in cur­rent African cir­cum­stances as well as we might.

Four bright spots stand out, at­test­ing to sus­tain­able democrati­sa­tion by its vig­or­ous prac­tice, not­with­stand­ing threat­en­ing of­fi­cial moves to weaken or cur­tail them. One, the me­dia's vig­or­ous ex­er­cise of its con­sti­tu­tion­ally en­shrined free­dom deep­ens and sus­tains democ­racy. Two, de­vo­lu­tion is un­ques­tion­ably a ma­jor step in the ad­vance­ment of democ­racy and in con­strain­ing con­tin­u­a­tion of the un­tram­melled ex­ec­u­tive power so deeply rooted in Kenya's past his­tory. This tran­si­tion has been aided by pre­vi­ous ex­pe­ri­ence with District Fo­cus and Con­stituency De­vel­op­ment Fund­ing, even as it has been ham­pered by a range of un­re­solved fi­nan­cial, in­sti­tu­tional, and political is­sues.

Three, I have been per­suaded that the in­de­pen­dence and ca­pa­bil­ity of the Ju­di­ciary has ad­vanced markedly un­der the lead­er­ship of Chief Jus­tice Mu­tunga from what it has been in the past, not­with­stand­ing in­escapable con­tro­versy over some High and Supreme Court de­ci­sions, the re­al­ity that the com­plete re­struc­tur­ing of the Ju­di­ciary will not be com­pleted dur­ing his term, and the deeper and more dif­fi­cult but es­sen­tial task of dif­fus­ing what one might term a rule of law cul­ture.

Four, for all the dif­fi­cul­ties of im­ple­ment­ing a con­sti­tu­tion that has given ex­pres­sion to such soar­ing demo­cratic as­pi­ra­tions, I sense that con­fi­dence in the vi­a­bil­ity of the Con­sti­tu­tion re­mains strong, not­with­stand­ing ef­forts to amend that, if brought to fruition, might or might not im­prove it , that ef­forts to con­tra­vene the Con­sti­tu­tion's wide panoply of in­di­vid­ual and group rights are met with vig­or­ous coun­ter­vail­ing re­sis­tance, and sharp ques­tion­ing at­tends Ex­ec­u­tive in­flu­ence on Leg­isla­tive ini­tia­tives, what­ever the mer­its, both of which re­flect healthy ac­cep­tance of demo­cratic sep­a­ra­tion of pow­ers and checks and bal­ances in ac­tion.

The sober­ing re­al­ity, how­ever, ap­pears to be that the be­set­ting weak­nesses of the an­cient regime, be­fore 1992, have per­versely ap­peared not only to per­sist but even to worsen in the five years since the pas­sage of the 2010 Con­sti­tu­tion. First, there seems to be broad recog­ni­tion that Kenya's lev­els of of­fi­cial cor­rup­tion, al­ready at se­ri­ously high lev­els, have markedly in­creased over the last five years. It seems that the bound­aries be­tween vig­or­ous ex­er­cise of long-sought lib­er­ties en­shrined in the Con­sti­tu­tion and un­tram­melled il­licit li­cense have been dan­ger­ously frayed, par­tic­u­larly in the pur­suit of busi­ness in­ter­ests. In the phi­los­o­phy of lib­er­al­ism, eco­nomic lib­er­ties are sup­posed to prompt and sup­port the pur­suit of political lib­er­ties un­der­girded by the rule of law, not ig­nore and cor­rode them.

Se­cond, there ap­pears to be equally wide­spread recog­ni­tion that eth­nic di­vides and par­ti­san­ship have, if any­thing, deep­ened in the first five years of Kenya's con­sti­tu­tional democ­racy. The less recog­nised irony is that th­ese di­v­sions have been ex­ac­er­bated by the very ef­fort to over­come them through the cre­ation of a sin­gle mar­ket in land on the ba­sis of free­hold ti­tle. Orig­i­nat­ing with land con­sol­i­da­tion and reg­is­tra­tion in the fi­nal colo­nial decade, the pol­icy has been con­tin­ued by each of Kenya's in­de­pen­dence gov­ern­ments, fur­ther deep­ened by pa­tron­age pol­i­tics and im­punity in land al­lo­ca­tions. As well, anx­i­ety about the out­comes of the In­ter­na­tional Crim­i­nal Court cases of Wil­liam Ruto and Joshua Sang, which are sup­posed to strengthen and re­store the rule of law, has ap­peared to have the per­verse ef­fect of ex­ac­er­bat­ing ten­sion-height­en­ing eth­nic speech.

Third, the prin­ci­pal tar­get of Kenya's quest for a demo­cratic state has been cur­tail­ing un­tram­melled, im­punity-girded ex­ec­u­tive power. Among nu­mer­ous in­di­ca­tors that the im­pulse to wield such power per­sists, the Con­sti­tu­tion not­with­stand­ing, per­haps the clear­est is the strug­gle over the ad­min­is­tra­tion of land be­tween the min­istry and the Na­tional Land Com­mis­sion. The lat­ter was vested with wide-rang­ing au­thor­ity to es­tab­lish ra­tio­nal, ef­fec­tive land use and cur­tail im­punity long as­so­ci­ated with the for­mer. Much de­pends on the bal­ance that con­tes­ta­tion even­tu­ally yields.

Writer teaches African Stud­ies at Johns Hop­kins Univer­sity

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