Recent events have seen Kenya come to a momentary standstill, with all manner of political hogwash being rifled left, right and centre as every manner of analysts offered explanation as to why virtually all the sectors of the economy are grinding to a halt. From the striking teachers and nurses, protesting dockworkers to the NYS saga, the sugar debacle after President Uhuru Kenyatta’s visit to Uganda, the tumbling shilling, most recently the university crisis and the politician’s favourite – the ICC puzzle of who “snitched” on whom – the grand clowns of Kenyan politics battled to offer the most useless yet “user friendly” solutions to these problems. Behind the curtains, however, the status quo thrived with otherwise sworn enemies in public conveniently teaming up to conjure up yet another fat pay cheque in the form of the Parliamentary Pensions Act, 2015. Meanwhile, Wanjiku did what she does best: notice, complain and forget. While she complained, the educated elite either ran to court to find solutions or sat on “benches” to offer their political two cents in the name of what went wrong, and a viable way forward. Curiously, both avenues have so far steered clear of the truth and, consequently, yet again missed the chance at a lasting solution. Albeit in brief, the following paragraphs attempt an explanation to these politics of “me and my tribe” that has so synonymous with Kenya – sadly, yet another commentary. Perhaps scandalously, Kenya’s problems can be traced back to her system of choice, correctly identified as a quasi-direct and representative democracy. As in any other hybrid democracy, choice is exercised on two fronts. Foremost is through the formal election of representatives at the ballot. These chosen persons in turn exercise choice when, on behalf of the voters, they make decisions in Parliament on any matter of national interest per the rules governing such exercises. The direct aspect of our democracy arises from the reading of Article 255 of our Constitution with regard to the law-making process and, more specifically, the process of amending the Constitution. The formal enactment of the Constitution courtesy of a national referendum provides another example of the exercise of direct democracy. Such direct participation to the extent of the Constitution is explained by the fact that the Constitution is the most important law of our land and one from which all other laws derive their legality. Among others, John Mutakha Kangu has defined the Constitution to be a social contract between the governors and the governed, which defines the relationship between these two parties. The Constitution is thus only legitimate to the extent that its subjects feel directly responsible for its creation. Having determined the supremacy of the Constitution over and above all other laws as under Article 2, it is a valid argument to conclude therefore that the determination of what is a good Constitution at a national referendum or indeed good law courtesy of any Constitutional amendment mechanism as envisaged by the Constitution should, as far as possible, be the choice of a rational man. By and large, whoever is to determine what indeed is a good law should be guided solely by sober reason. To the extent that this fails to be the position, the Constitution risks being dismissed as, though valid, fundamentally flawed in the realms of legal and economic substance. Representative democracy Being the grund norm, such deficiencies in the substance of the Constitution have the catastrophic effect of limiting the substance of all other laws that are created courtesy of the Constitution under Article 2. This is because, all these other laws, be they Acts of Parliament or international norms, are either directly creatures of the Constitution or, indirectly, creatures of the Constitution having been crafted by persons or a body of persons who is a creature of the Constitution. The second level of representation is at the national assembly where Members of Parliament exercise choice on behalf of their electors. Representative democracy is perhaps best captured by the Constitution under Article 1 where it vests sovereignty upon the people, sovereignty that is to be exercised by the Parliament on behalf of the people. The role played by such elected representatives is very important since it is only Parliament that has the power to make any provisions having the force of law in Kenya, per Article 94. Similarly, Article 95 of the Constitution vests upon the National Assembly a number of powers critical to the functioning of the country, such as the power to exercise oversight on the Executive, and supervise the determination and implementation of the budget. Beauties of democracy Realising these important roles, the good nature of persons occupying these representative positions and the need to, as far as possible, ensure that the decisions they make are guided by rationality, cannot be overemphasised. A proper diagnosis of the problems facing the country can only be achieved therefore through an honest answer to the questions of whether the choice makers at both levels bear the necessary character and capacity to exercise good choice, whether such good choice is in fact exercised and the admission that a failure of our laws translates into failure in all other tiers of government – a matter which, if not fully addressed, will only serve to perpetrate the inevitable consequence of endless trips to the court for the elite, and undying whines by Wanjiku. While democracy has been lauded as the best system of government so far, many a legal scholar have come forward with a criticism of the perceived beauties of democracy. From Gaetano Mosca, Vilfredo Pareto and Antonio Gramsci, who predicted a dictatorship by a few ruling elite in a typical democracy (as is Parliament in Kenya), to the great Machiavelli who argued that democracies always tend to bend to the whims of the uneducated masses, a people who, being starkly uninformed, stand likely to squander their wealth in the fronting and consequent support of populist yet non-economically viable policies, the sentiment is shared that democracy, while being a decision of the majority, is often case a wrong decision. This is for the simple reason that sustained inequalities in both the social and economic strata have served to ensure that the educated population, which is presumably better placed to understand what is really good, is almost always significantly smaller than its uneducated counterpart. Machiavelli put forth a cyclical theory of government where he argued that democracies are simply degenerate monarchies which then decayed into aristocracies. Because of uninformed populist notion as earlier posited, democracies do not notice it when they are wasting away as result of poor policy. At the peak of this destruction is a situation of anarchy. A popular figure will then rise in a wave to “save the situation” and before long, what was once a democracy turns into a monarch, with a single, all-powerful ruler. Per the cyclic theory, while initial choice presents the voice of the majority uneducated population, subsequent choice by the representatives is such choice that is best placed to ensure the consolidation of their position. In concurrence with the position taken by Mwangi Kimenyi and Roxana Gutierrez Romero in their paper “Tribalism as a Minimax-Regret Strategy: Evidence from Voting in the 2007 Kenyan Elections,” the case for the subsequent paragraphs is the economic model of voting which is founded on the premise that our voters – at both levels – are irrational and “hardwired” with selfish preferences. Faced with two or more alternatives, agents with selfish preferences make choices that best serve their individual interests and thus consistent with the expected utility maximisation axiom. Catastrophe of democracy An extreme position of utility maximisation is that taken by Social Choice theorists who argue that the existence of proven rational choice is actually a fallacy since man, being entirely selfish and keen on self-preservation, always makes choices that stand to benefit him the most (William H. Riker, 1982). Social Choice theory is a purely mathematical undertaking where the probability of choice is calculated based entirely on an economic utility function. On social choice, John Dryzek (2002) has famously argued that: “…To social choice theorists, the democratic problem involves aggregation of views, interests, or preferences across individuals, not deliberation over their content…” Social choice posits that there is no such thing as rational choice, as the answer that is given in all situations is an answer to the question, “Does it maximally benefit me?” The latter forms the catastrophe of democracy. This position of irrational choice making is further buttressed by the reality that, in a system where the choice makers i.e. voters are guided solely by the desire for a maximum utility, voters always have a list of preferences that is particularly ordered. Achieving a consensus on a particular order that will evidence all the voters’ preferences is impossible regardless of whatever angle one looks at it (The Arrows Theorem). Simply put, when several people, each having own preferences, are making a choice on a matter that affects them all, each is condemned to making sacrifices – scarcity begets choice, a choice that means the foregoing of some preferences. This observation raises a startling observation: that democracy (the uncontested view of the majority) has never been the best system to show what the voters actually want. Several choice factors influence choice making at either level. Most important among these choice factors are the infamous ethnic affiliation, the question of money and systems of social integration, for example religion. Identity politics Roxana Gutiérrez-Romero, in her paper, “The Role of Ethnic Identity and Economic Issues in the 2007 Kenyan Elections” makes an observation that, while more advanced democracies tend to use supervening socio-economic circumstances as the most common determinant of the continued suitability or not thereof of a sitting government, culture remains the single most common determinant in newer democracies or deeply divided societies in what has come to be widely regarded as “ethnic consensus” – a term first coined by Horowitz, Donald in 1985. Far from being castigated, this behavioural pattern has been excused by a dual citizenship (Ndegwa, Stephen 1997), synonymous with the African voter. This dual citizenship ensures that, when it comes to making a choice in a vote, a citizen has to consider ethnic interest vis a vis national interest as he belongs to both realms as a citizen. Ethnicity almost always trumps upon national interest – a factor which can be easily understood when the economic model of voting is considered. This phenomenon has also been identified in some circles as “identity politics”. “You are practicing identity politics when you vote for or against someone because of his or her skin colour, ethnicity, religion, gender, sexual orientation, or any marker that leads you to say yes or no independently of a candidate’s ideas or policies. In essence, identity politics is an affirmation of tribe against the claims of ideology……..An identity politics voter says in effect, ‘I don’t care what views he holds, or even what bad things he may have done, or what lack of ability he may display, he’s my brother, or he’s my kinsman, or he’s my landsman’…” (Fish, 2008) While ethnicity has become such an important factor in decision-making in Kenya, Wanjiku, in an act she has perfected with such a precise precision, continues to flatly deny the existence of the ethnicity monster in her choice-making. About two weeks before the December 27, 2007 General Election, researchers from leading universities, among them the University of Oxford, Michigan State University and University of Connecticut, conducted a survey on voter opinions aimed at determining factors that influence voter opinions. The results were curious. Only less than one per cent of survey respondents (0.80 percent) stated that the ethnicity of the candidate was the most important factor in shaping their voting motivations. In sharp contrast, however, in reply to a question about ”how much do you trust each of the following types of people?” respondents unsurprisingly granted most confidence to those in their immediate social circle. Four out of ten Kenyans (39 per cent) expressed ”a lot” of trust in people to whom they are related by blood or marriage, with an additional 50 per cent expressing at least ”a little” trust in relatives. Further, when asked about the most common causes of discrimination, “tribe” managed a “favourable” 25 per cent of the outcome. The most intriguing factor about the kind of discrimination mentioned above is that, as the data collected pointed out, Kenyans relate any perceived discrimination to the performance of the central government (which is often dominated by members of a particular ethnic affiliation or an amalgam of such as is the nature of political parties in the multi-party era). More often than not, the position is always therefore that “Government (read a particular tribe) is discriminating against us because we did not vote for them.” The discrimination talked about is not blanket, with equally felt effects; far from it! (Michael Bratton and Mwangi S. Kimenyi, 2008) Western Kenya tribes, being the Luo and Luhya, are twice as likely to express a sense of ethnically-based discrimination when compared to their GEMA [Gikuyu Meru (including Mbeere and Embu) Association] counterparts from Central Kenya. People of Luo origin, are ten times more likely, per the results of the research, to attribute this state of affairs (less socio-economic development) to discrimination by incumbent officeholders in the country’s central Government. In the starkest distinction of all, when compared to the Kikuyu, the Luo are twenty-five times more likely to say that Government treats their ethnic group unfairly- perhaps as a result of almost always being in the opposition. Single-party politics Kenya’s political history seems to agree with these findings. It has to be stated, however, that although the tribe factor has always been of influence in deciding Kenya’s political outcomes, the influence of tribe became really pronounced with the advent of multi-party politics in 1992. Before then, the effect of ethnic affiliation was neutralised by single party politics and less competitive elections; thus because of the simple fact that regardless of tribe, a political career would be virtually impossible outside the ruling and only party, Kanu). The advent of multi-party politics inevitably increased the competition. The most intriguing thing about the advent of multi-partyism was the resurrection of the early independence trend where parties were basically tribal blocks (Oyugi, Walter, 1997); sooner rather than later, the party of choice became the party that was dominated by the voter’s ethnic community, with the assumptions being that foremost, such a party was best placed to understand the voter’s troubles (and by extent, his community’s troubles) and hence best-placed to safeguard his interests. Secondly, is the reasoning that “even if voting for Person X doesn’t improve my well-being, or even if I hate him and his policies, I’d rather vote for him, being my tribesman, than see a person from another ethnic community win.” In this, two outcomes come into the fore – first, dual citizenship and the economic model of voting highlighted above, and, more importantly, the legitimisation of the “minimax-regret” strategy of voting first propounded by Ferejohn and Fiorina in their paper, “Closeness Counts Only in Horseshoes and Dancing,” appearing in Vol. 69 of the American Political Science Review, 1975. The “minimax-regret” strategy theory proposes that voters vote to ensure outcomes that would best possible minimise the maximum risk. An understanding of this theory, and the question of a “dual citizenship”, means that voters vote for a person that will best ensure the continued well-being of the tribe. Tribe and political party are affiliates – the latter is a typical politician’s favourite as it represents a game with no rules. This unbreakable marriage between tribe and political party boils down to the minimax-regret strategy theory (supra) where an economic voter (supra) votes for an outcome that is, on the best day, going to help him and his community the most or, on the worst day, going to bring about the least regret, being, in most cases, the hope that “…at least Person X form Tribe V does not win.” In this reasoning, the welfare of the state in general is of the least concern to the average Kenyan voter. The Presidential election results of 2013 betray several important factors influencing voter choices. Foremost is the marriage between political parties and tribe, where favourable results in candidates’ home provinces are noted. Secondly is the tendency of Kenyans to vote for “their people” regardless (the minimax-regret theory). Lastly is the economic voter rationale displayed by the unfavourable rating of “smaller” candidates who share a tribe or voter base with the main contestants: “…the opportunity cost of voting for Peter Kenneth or Martha Karua over Uhuru Kenyatta is that the latter’s votes will be divided and Raila will end up wining, now, we do not want that, do we? So let us just vote for Uhuru.” They are almost uncontested – the allegations of voter bribery with the aim of influencing election outcomes. As to whether such bribery actually determines or even affects the election results, the jury is still out there. Multiple researches have been carried out on the same subject with a varying degree of results depending on, among others, the mode of carrying out the research, the research sample and the place where the research was carried out. The failure of these researches is perhaps most defeated by the glaring inability to monitor voter choices (bribed voters) to ascertain whether they have been influenced by the bribe or not, especially in secret ballot regimes such as Kenya (Stokes, Susan, 2005). That voters are affected by bribes then is only a matter of inference (and rightly so), without the support of real data. The best possible reason perhaps, offered by the school that believes in the devastating effects of bribery on election results, is the Economic Model of Voting theory, which is founded on the premise that voters are rational and “hard wired” with selfish preferences. Faced with two or more alternatives, agents with selfish preferences make choices that best serve their individual interests and thus consistent with the expected utility maximisation axiom (supra). The biting effects of poverty, coupled with illiteracy among many of the voters, reduce these selfish interests to immediate selfish interests, meaning that bribes are readily accepted. The feeling of being indebted to the person who “offered me help in my day of need” then proceeds to ensure that such poor voters actually cast a vote for the bribing party. The damage of these choice factors extends to the second tier of the choice-making process, being the representative stage in Parliament. While the nitty gritties of the law making process are not to be pursued, the role played by Parliamentary committees in law-making, and their composition and workings, ought to be considered if the extent of damage caused by the aforementioned choice factors is to be properly appreciated. On composition, the guiding provision is Standing Order No. 173 of the Standing Orders of Parliament 2013 which, among others, provides that: “Unless otherwise provided by any written law or these Standing Orders, the Committee on Selection shall, in consultation with Parliamentary parties, nominate Members who shall serve on a select committee.” Further under order 174: “In nominating Members to serve on a select committee, the Selection Committee shall ensure that the membership of each committee reflects the relative majorities of the seats held by each of the Parliamentary parties in the National Assembly.” With regard to procedure under Order 196: “Any question arising in a select committee shall be decided by vote and the resolution on any such vote shall constitute the decision of the select committee on that question” Several curious factors cannot escape notice with regard to the working of these committees. Foremost, is the glaring fact that the choice of who sits in a committee is solely the decision of the committee on selection per the guidance of the political parties, i.e., political parties nominate and the committee on selection distributes the nominated persons to committees. What is witnessed, therefore, is party influence when it has already been established (supra) the nexus between the political parties and the tribe and the obvious bias that ethnic communities (and therefore political party) have against other communities (political parties). The negative factors influencing choice such as community gain (the Minimax-Regret Theory), self-preservation (the Economic Rationale of Voting) and basically tribalism, is carried forward to Parliament when creating these committees. Political, tribal choices In extension, the dominance that larger communities exert over smaller communities is also witnessed through the dictate that committee appointments shall represent party representation in Parliament. The dependence of the representative on the goodwill of his tribe and therefore his party makes one thing certain – that far beyond expert input and honest consideration, any vote conducted on any matter within committees is basically an amalgam of political and indeed tribal choices where the dominant party and, indeed, ethnic group, carries the day and decides what law is! It is, however, inherently imprudent to dismiss all votes cast by committee members to be votes influenced by political party and tribal aggrandisement. While there are members who cast a vote based on honest opinion, their judgment is questioned by their lack of expertise in the area relevant to the committee. As already demonstrated above, it is not guaranteed that a certain committee shall be composed of a majority of members who are experts in the field regulated by the committee for even when simply considered, a national vote in an election does not guarantee that all the professions shall be represented in the national assembly let alone in the required numbers. This fact is worsened by the fact that expert input in the committee process, while recommended in the Standing Orders, is not guaranteed. Expert input in the committee process is the discretion of the committee chairman. In regard to any voting carried out at the floor of the whole house before the Second Reading and after the Third Reading, the committee is also not immune to the party and tribal politics discussed above. In any case, it is worsened by virtue of sheer numbers present in the house and the guarantee of a public broadcast (which means “my voters are watching…my people are watching”). At the Presidential Assent stage, over and above rationality, the choice as to whether to assent to or refuse assent to a bill is considered against the following important factors: the President’s selfish yet very understandable desire to consolidate power and ensure re-election; the need to aggrandise his political party and any other parties whose alliances are vital for power consolidation, a fact that, having established the nexus between political party and tribe, automatically translates to aggrandising their tribe. While a sequel to this article shall attempt an answer to these problems, a solution is pillared on the justification of choice at both levels and on the proposition of a maximum reduction of politics in the law making process.