Nairobi Law Monthly - - Contents - By John Harbe­son

Democrati­sa­tion in African coun­tries, in­clud­ing Kenya, has ap­peared to reach a plateau. The plateau ap­pears un­sta­ble to many ob­servers be­cause vis­i­ble in­di­ca­tions of ac­tual demo­cratic re­ver­sal have seemed more nu­mer­ous than less vis­i­ble con­tin­u­ing ef­forts that many are con­tin­u­ing to make to ad­vance the demo­cratic cause. The ma­jor unan­swered ques­tions about this ap­par­ent democrati­sa­tion plateau have been and con­tinue to be what ac­counts for its clear emer­gence and what can be done about it. An­swers to the lat­ter ques­tion may lie in en­cour­ag­ing academics as well as coun­try pol­icy mak­ers and aid agen­cies to think about democ­racy in more ap­pro­pri­ate and re­al­is­tic terms, and more deeply. By “ap­pro­pri­ate” and “re­al­is­tic” I am not coun­selling re­sign­ing one’s self to par­tial democ­racy or demo­cratic re­treats but, rather, to urge that we re­cast our demo­cratic think­ing in ways that will bet­ter sup­port sus­tain­ing ex­ist­ing lev­els of democ­racy and es­tab­lish more durable foun­da­tions for fur­ther demo­cratic ad­vance­ment.

While the ev­i­dence that democrati­sa­tion has reached a plateau in sub-sa­ha­ran Africa is per­sua­sive, in fair­ness we should take a mo­ment to re­flect on one rea­son to be un­cer­tain about the real state of democ­racy on the con­ti­nent. Some of the most prom­i­nent voices al­leg­ing demo­cratic stag­na­tion in Africa have been in­sti­tu­tions that un­der­take to mea­sure democ­racy, or the lack of it, by quan­ti­fy­ing their es­ti­mates of demo­cratic per­for­mance with­out spec­i­fy­ing pre­cisely how they quan­tify their em­pir­i­cal ob­ser­va­tions. The case of Mali in 2012 and be­yond has been an ex­plicit chal­lenge to th­ese democ­racy quan­ti­fy­ing sys­tems, all of which had pre­vi­ously given Mali high marks for democ­racy and es­ti­mated the state to be sta­ble. None warned of the col­lapse of democ­racy or the frac­tur­ing of the state be­fore it oc­curred.

Nev­er­the­less, the four ma­jor sys­tems for as­sess­ing demo­cratic per­for­mance, with their dif­fer­ent em­phases as well as com­mon con­cerns, all agree that at best progress has been marginal over the last decade or so for African coun­tries. Free­dom House fo­cuses on ob­ser­vance of political rights and civil lib­er­ties, Polity on con­sti­tu­tional con­straints on ex­ec­u­tives and open­ness in their se­lec­tion, the World Bank on gov­ern­men­tal ef­fec­tive­ness and in­tegrity, and the Mo Ibrahim In­dex has a more ex­pan­sive con­cep­tion of demo­cratic gov­ern­ing, fo­cus­ing upon sus­tain­able eco­nomic op­por­tu­nity and hu­man de­vel­op­ment as well as political lib­er­ties, the rule of law and per­sonal safety.

One doesn’t need sta­tis­ti­cal mea­sures, how­ever, to wit­ness the in­stances of demo­cratic re­treat around the con­ti­nent, Kenya in­cluded. The Mali case teaches us that demo­cratic de­cay can ac­cu­mu­late qui­etly, like a slow grow­ing can­cer, un­til vis­i­ble de­cay man­i­fests it­self and state col­lapse threat­ens. Elec­tion fraud, in­fringe­ments on the in­de­pen­dence of ju­di­cia­ries, as is now con­tem­plated in Kenya, con­sti­tu­tional set-asides of pres­i­den­tial two term lim­its, gov­ern­men­tal ini­tia­tives to re­strict if not ac­tu­ally ha­rass civil so­ci­ety or­gan­i­sa­tions in a num­ber of coun­tries, rou­tine abuses of civil lib­er­ties and political rights and, of course, ever-present if not wors­en­ing cor­rup­tion, all threaten the health of the state it­self as well as its nascent demo­cratic struc­ture. Pe­cu­liar to Kenya in this vein have been de­nials of ex­ten­sions of the terms of the Con­sti­tu­tional Im­ple­men­ta­tion Com­mis­sion and the de­vo­lu­tion Tran­si­tion Au­thor­ity, thus seem­ing to put at some risk fur­ther im­ple­men­ta­tion of the Con­sti­tu­tion’s sig­na­ture de­vo­lu­tion ini­tia­tive as well as on­go­ing con­sti­tu­tional im­ple­men­ta­tion progress as a whole.

What ac­counts for th­ese prac­tices that sig­nal not only re­treat but an ac­tual hol­low­ing out of democ­racy, threat­en­ing to leave in place only its brit­tle con­sti­tu­tional shell? Ex­pla­na­tions have been in rel­a­tively short sup­ply. Three plau­si­ble ones all sug­gest fun­da­men­tal di­men­sions of democrati­sa­tion that, be­cause gen­er­ally over­looked, may help to ac­count for th­ese overt man­i­fes­ta­tions of demo­cratic hol­low­ing out.

First, an ar­ti­cle in the cur­rent is­sue of For­eign Affairs ar­gues that demo­cratic states have proven sus­tain­able where elected political lead­ers have in­ter­nalised demo­cratic val­ues of tol­er­ance, com­pro­mise, and re­spect for oth­ers in their pri­vate lives and per­sonal deal­ings. In other words, the hol­low­ing out of democ­racy oc­curs, in the first in­stance, when demo­crat­i­cally elected lead­ers deep down don’t un­der­stand and em­brace the full range of demo­cratic val­ues. They may “get” the political com­pe­ti­tion that is cen­tral to democ­racy but not th­ese other equally fun­da­men­tal val­ues of fully demo­cratic political or­der.

This ex­pla­na­tion points to the well-known the­ory that for a demo­cratic state to be sus­tain­able it must rest on a demo­cratic political cul­ture in which the val­ues of tol­er­ance, com­pro­mise, re­spect for oth­ers and, more fun­da­men­tally, the im­por­tance of demo­cratic con­sen­sus, are deeply in­grained at lead­er­ship as well as ci­ti­zen lev­els. A sig­nif­i­cant chal­lenge for African democ­racy is that though a demo­cratic political cul­ture may be a pre­req­ui­site for a sus­tain­able political or­der, in con­tem­po­rary cir­cum­stances


fos­ter­ing of a demo­cratic political cul­ture and im­ple­men­ta­tion of demo­cratic struc­tures must take place si­mul­ta­ne­ously, sig­nif­i­cantly en­larg­ing the re­spon­si­bil­i­ties of elected lead­ers.

The se­cond ex­pla­na­tion is the hy­poth­e­sis is that be­yond cre­at­ing the leg­is­la­tion nec­es­sary to have a fully op­er­a­tional con­sti­tu­tion, there is the im­por­tance of caus­ing the or­gan­i­sa­tions in­volved to be­come in­sti­tu­tions. In­sti­tu­tion­al­i­sa­tion en­tails not just the cer­e­monies, struc­tures, and pro­cesses of par­lia­ments, courts, min­istries, and com­mis­sions that make demo­cratic gov­ern­men­tal bod­ies work, but fo­cus­ing on what is nec­es­sary to deepen their political le­git­i­macy with the pub­lic and gov­ern­men­tal of­fi­cials alike. Mak­ing en­acted or­gan­i­sa­tions more le­git­i­mate en­tails on­go­ing fo­cused ef­fort to ask and an­swer the ques­tion: what can be done to iden­tify and es­tab­lish con­sen­sus on ways to make th­ese or­gan­i­sa­tions work more trans­par­ently, more user friendly, more ef­fec­tively, and more in con­so­nance with core demo­cratic val­ues. Per­haps less demo­cratic hol­low­ing would oc­cur if the ten­ants of th­ese or­gan­i­sa­tions de­voted more time to this ob­jec­tive, amidst all the rough and tum­ble of their op­er­a­tions. Con­ver­sa­tion on this sub­ject has seemed in short sup­ply.

Third, in the first years of the post-cold War sub-sa­ha­ran African “demo­cratic spring”, there was clear ev­i­dence that coun­tries mak­ing the most rapid ini­tial demo­cratic progress es­tab­lished new demo­cratic con­sti­tu­tions as a ba­sis for shared con­sen­sus be­fore launch­ing their first com­pet­i­tive multi-party elec­tions. In re­cent years, by con­trast, it has seemed that for academics and pol­i­cy­mak­ers alike, all di­men­sions of a full democ­racy are equally im­por­tant and merit equal pri­or­ity, when in fact that may not be the case. At­ten­tion to some aspects of democ­racy may be more im­por­tant than oth­ers in cer­tain times and cir­cum­stances to pre­serve demo­cratic ad­vances and pre­vent back­slid­ing.

The com­pet­i­tive di­men­sions of Kenyan democ­racy have sig­nif­i­cantly com­pro­mised and un­der­mined con­sen­sus on shared rules of the political game that sus­tain the state it­self, not just its demo­cratic or­gan­i­sa­tion. To the ex­tent this is the case, broad­en­ing and deep­en­ing con­sen­sus on, and im­ple­ment­ing the rule of law would ap­pear to be more im­por­tant than any­thing else at this time to pre­serve and ad­vance a demo­cratic state in Kenya.

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