What is democracy and what is it for?

Volume 14, Issue 1  | 
Published 03/07/2017
Prof. Yash Pal Ghai

Was the chair of the CKRC (Constitution of Kenya Review Commission) and the Kenya National Constitutional Conference

Demise of democracy.

As we move rapidly towards the general elections, it important to reflect on the values of elections and democracy. Kenya became democratic at independence but Democracy did not last long. It was killed by the conspiracies of Jomo 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 the resources of the state. 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 grapping, 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 connection with presidents and ministers. Soon it was possible to distinguish the rich and the poor: 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
Toroitich Arap Moi

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 within a year to demolish the independence constitution, including the highly entrenched majimbo. 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. 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 which 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. Much care went into the restructuring of the state to achieve these objectives. 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. However, it was clear that 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 CKRC as 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 so the parties must themselves have a national character - meaning, among other factors, having membership reflecting the diversity of Kenyans and having nationwide presence. Parties must not be ‘founded on religious, linguistic, racial, ethnic, gender or regional basis; or seek to engage in advocacy of hatred on any such bases’. They must observe high standards of integrity; in particular not engaging in bribery or other forms of corruption. In order 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, observe principles of good governance, hold regular elections for offices etc. within the party, and respect the right 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 that 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 based 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. 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 so as 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 which satisfy certain criteria. The amount must not be less than 3% 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 or 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. The system of illicit funding has had a most negative effect on integrity among politicians and civil servants and in the private sectors as well - a violation of one of the most important constitutional values.

Electoral system

The Constitution provides for a fundamental reform of the electoral system, aimed at ‘free and   fair elections’. The elections must be conducted by an independent body to ensure that it is 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 which have not been criticised for unfairness, corruption, and most of all, violence.

Final thoughts

Despite the optimism about the new Constitution, politics have changed little. As we approach the general elections, 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 and exchanges of insults with their rivals have marked the start to the election season. 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 basis of purely personal issues have debased us as a nation. We Kenyans are ashamed of our political ‘leaders’ and have come to fear elections.

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