KATHURE and OGONDA: Negotiated democracy against the Constitution

Negotiated democracy is a political framework in which members of a community or society discuss how to allocate power among the various sectors that make up society.

This arrangement is deemed critical for assuring representation in decision-making, equitable distribution of community resources, peaceful resolution of political conflicts and the reduction of enmity within communities with considerable cultural/identity disparities.

Members of the clan council of elders negotiate for elective posts in the system, which functions under traditional governing structures. The councils then seek out people to fill the positions.

In Kenya, negotiated democracy has been witnessed in Northern Kenya. The councils' choices affected and drove regional voting trends.

The Borana Council of Elders in Isiolo county endorsed former Governor Godana Doyo to run for the seat in the August 9 elections. Doyo received the support of two clans in his bid to remove sitting Governor Mohammed Kuti.

Elders from the Mantaan clan in Wajir county favoured former Governor Ahmed Abdullahi, while another group backed Mohamud Abdikadir Abdille. The recent beneficiary of this system is Garissa Senator Abdul Haji, who was elected unopposed despite there being other 16 aspirants who had shown interest in the by-elections.

Power-sharing is an unstable form of government that, even at its best, provides only a short-term reprieve from violent conflict. This is because it usually entails elites being asked to share power with their worst adversaries in situations where power balances are constantly shifting. Such agreements are exceedingly difficult to reach, and even if they do, they will be unstable.

Whereas, attributable to the approach, inter-clan violence has been averted. Women and youth are not represented in the elders' councils and hence the system has systematically barred them from political leadership.

Women and youth are deprived of their civil and constitutional right to political involvement in this way, which is structural violence in and of itself. Their opinions and interests are not factored when the council makes decisions or selects people to govern.

As a result, women and youth can only participate in the county assembly and the National Assembly through affirmative action.

Women's marginalisation in political leadership and decision-making is entrenched in negotiated democracy. It deprives individuals of their right to run for various elective positions in a democratic process discriminatorily contrary to Article 27 of the Constitution.

Negotiated democracy is a form of dictatorship because it has turned voters into robots that go to the elections without evaluating the competence of the candidate they are voting for. Women and youth, who make up 75 per cent of the population, are left out of a patronage system where a few wealthy people from powerful clans exert their interests and preferences on the community. This "disempowers every other person”, including youth, minorities, and women.

Negotiated democracy extends to nominations,wherein elders furnish parties with candidates and request they be allowed direct candidacy. This is in direct conflict with the Independent Electoral and Boundaries Commission's overall goal, as stated in Article 249 of the Constitution, which calls for protecting the sovereignty of the people and securing observance of democratic values and principles.

Article 38 of the Constitution states that every citizen has the right to free, fair, and regular elections based on universal suffrage and the free expression of the electorate's will without fear of intimidation.

Article 81 enumerates the freedom of citizens to exercise their political rights among the principles that guide electoral process in Kenya to the effect that no one can stop a person from running for a political office provided they are qualified for the position.

As a result, by threatening aspirants and their supporters, the caretakers and fathers of negotiated democracy impinge on such rights.

As we head towards the nominations, it is important for parties to ensure that Article 38 of the Constitution is upheld by ensuring every citizen enjoys their right to free, fair, and regular elections and that people express themselves as individuals and not as a group.

Kathure is the senior program officer at Article 19 Eastern Africa,  Ogonda is a Law student at Strathmore University

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