Demise of democracy
As we move rapidly, almost ferociously, towards the general elections, it important to reflect on the values of elections and democracy. Kenya became democratic at Independence. Democracy did not last long. It was killed by conspiracies of Kenyatta and Moi. An essential purpose of suppressing democracy was to establish the absolute rule of the President, which in turn was to capture the state and plunder its resources. The principal beneficiaries of these regimes were relatives and friends of presidents and ministers, mostly members of their own tribes, and over whose thefts and illegalities there were no sanctions.
Fortunes were made through land grabbing, monopolies, senior governmental and parastatal jobs, which not only ensured high salaries but also opportunities of the embezzlement of state resources. In these circumstances there was no need for skills, it sufficed that they had a connection with presidents and ministers. Soon it was possible to distinguish the rich and the poor, and their lifestyles: one group living in great luxury, the other mired in poverty. It was not the case that all ethnic members of the President became rich. Many, in fact, became impoverished by the greed and illegalities of their so-called leaders. Thus began the distinction between ethnicity and class, which the politicians now spend so much time obfuscating.
Jomo Kenyatta provided an excellent example of this style of politics. He built solidarity among the Kikuyu for his own personal gains. Rev John Gatu’s recent autobiography provides a clear account of Kenyatta’s exploitation of Kikuyu ethnicity, which led to serious rifts between the Kikuyu and other communities. Kikuyu hegemony has since then become the motto of Kikuyu politicians and business people. And “leaders” of other communities followed the Kikuyu model—to increase their own status in inter-ethnic politics. Kenyatta also taught us that money could easily buy politicians. It was bribery with money and state office that enabled Kenyatta to demolish the Independence constitution, including the highly entrenched majimbo., within a year, despite the high degree of constitutional protection.
Moi, the leader of majimboism, who had fought hard for it at the London conferences, to protect Kalenjin and other minority groups, not only engineered this huge majority for its abolition but joined the Kenyatta Cabinet — and abolished Kadu. If Kenyatta symbolised one strand of politics, Moi did another: money and power are all that count. Crossing the floor for personal expediency became the pre-occupation of politicians.
Restoration of democracy
The objective of the 2010 constitution was to bring about fundamental changes in state and society. These changes are well captured in the preamble and Article 10. A major objective is peace and national unity, based on democratic principles, while recognising our ethnic, cultural and religious identity. The system of government people desperately longed for is to be based on essential values of human rights, equality, freedom, democracy, social justice, good governance and the rule of law. Article 10 adds integrity to this list—hugely important given the creed of our politicians and civil servants, and their business friends, that a whole chapter is devoted to it. Much care went into the restructuring of the state to achieve these objectives, starting with vesting sovereignty in the people, exercised in different ways, most fundamentally in electing and removing MPs and county assemblies, and partnership in making laws. Kenyans are encouraged to exercise their rights and freedoms, and seek, if necessary, the assistance of independent commissions and above all, a re-organised and strengthened judiciary. Apart from strengthening the judiciary, an independent director of prosecutions has been established.
Role of political parties
Great care was also taken to ensure a truly democratic political system, for only then could rights and freedoms and social justice prevail. Political parties were perceived, rightly, as central, to provide the basis of both democracy and national unity, respecting human rights, and avoiding ethnicity, race, religion, or region as their basis. From the very beginning, however, it became clear that the conflicts of interests between politicians and the people could not be so easily erased. Political parties in Kenya had not been champions of democracy, rights or justice. And now, while citizens looked forward to a future of equality and equity, the politicians plotted the seizure of the state, as a means of grabbing national resources, fomenting ethnic conflicts, and marginalising civil society. Consequently, great attention was paid by the Constitution of Kenya Review Commission to how parties could be made responsible to the people and to pursue national values set out in the new constitution.
Promoting national unity is defined as a primary responsibility of political parties. To this end, the parties must themselves have a national character — meaning, among other factors, have membership reflecting the diversity of Kenyans (including “minorities and marginalised groups”) and nationwide presence. Parties must not be “founded on religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred of any such basis”. They must observe high standards of integrity; in particular, not engaging in bribery or other forms of corruption. To avoid the violence that had become so endemic among political parties, the constitution prohibits them from engaging in or encouraging violence by intimidation of its members, supporters or opponents, or from establishing paramilitary or similar organisations.
Parties themselves must respect democratic principles by electing their governing body, observing principles of good governance, holding regular elections for offices within the party, and respecting the rights of all persons to participate in the political process. They must respect and promote human rights and freedoms, including gender equality and equity — and more broadly, they must promote constitutional objects and principles, including the rule of law. To ensure these rules are respected by the parties, the independent office of Registrar of Political Parties is established with authority to refuse to register parties or de-register parties that do not fulfil these terms. An independent Political Parties Disputes Tribunal to deal with party disputes has been set up.
Functions of political parties
Most Kenyans think that the function of a political party is to win elections, regardless of its tactics: intimidation, bribery, corruption, breaking up meetings of opposing parties, mobilising ethnic hatred, or cheating at the polls or vote counting. This is not surprising because that is exactly how the major parties behave. In a democracy, these tactics are unlawful, as they are in Kenya.
A key function of parties, totally ignored in Kenya, is formation of policies offered to voters. The Political Parties Act makes this clear, saying that parties (a) shall promote policy alternatives responding to the interests, concerns and needs of citizens; (b) respect and uphold the democratic processes as they compete for political power to implement their policies; and (c) promote consensus-building in policy decision making on issues of national importance.
The Act makes clear also that the role of parties is not mindless attacks on other parties. It says that: A political party shall promote inter-party relations by: (a) ensuring free competition among political parties in respect of different political views and principles; (b) fostering trust and confidence through mechanisms for co-operation; (c) managing and mitigating political differences through constructive dialogue, enhancing harmony among the parties; and (d) promoting national reconciliation and building national unity.
Largess for political parties
To prevent the illicit collection of money, the law provides for grants of funds to political parties that satisfy certain criteria. The amount must not be less than 3 per cent of national revenue. The distribution of this fund favours the already well-established political parties, being based on the percentage of votes obtained by the party. However, the fund must be used to promote democracy, encourage people’s participation in political matters, provision of civic education, influencing of public on policies of the parties, and promoting the membership of women, disabled and disadvantaged in legislative bodies. Political parties can raise money from other sources, but they must be lawful sources, and there are limits on the amounts that may be raised in this way.
It is obvious that the parties have not been deterred from raising or extorting money from other sources. It is well known that huge sums of money are collected by politicians, from sources which then depend on favours from the recipient, once in office. No individual or even party can envisage standing in elections unless they have huge sums of money to buy votes with.
The system of illicit funding has had a most negative effect on integrity among politicians and civil servants and in the private sector as well — a violation of one of the most important constitutional values. So pervasive is corruption, largely for electoral purposes, that our well endowed president admitted that he (and presumably his government) could not control it. This is a great indictment of the prevalence of the violation of the fundamental principles of the constitution.
The constitution provides for a fundamental reform of the electoral system, aimed at “ free and , fair elections, “free from violence, intimidation, improper influence or corruption”. The elections must be conducted by an independent body to ensure they are transparent and administered in an impartial, neutral, efficient, accurate and accountable manner. A great deal of detail to achieve these goals has been set out, including that the voting system should be “simple, accurate, verifiable, secure, accountable and transparent”. However, there have been few elections in Kenya’s history that have not been criticised for unfairness, corruption, and most of all, violence. Even the first elections under the new system did not escape a measure of violence.
Despite the optimism about the new constitution, politics has changed little. As we approach the general election, it has become clear that the parties have no respect for constitutional values. The old system of violence, corruption, party-funded and organised political rallies (geared more to attacks on opposing parties than discussion of their own policies), and exchanges of insults with their rivals have marked the start to the election seasons. Kenya has the irritating habit of starting election campaigns almost a year before the elections, neglecting their duties as president, governors, and members of legislatures, instead of what sensible countries do — about three weeks.
We have already seen massive use of violence. The government has ensured that the police and army have become enemies of the people, instead of friends, as the constitution prescribes. Civil society has been chastised for its betrayal of the national interests, and the rights and freedoms of citizens and foreigners alike are under threat from a nervous president. The quarrels among politicians on the basis of purely personal issues have debased us as a nation. We Kenyans are ashamed of our political “leaders”.
The author was the chair of the CKRC and the Kenya National Constitutional Conference.