By Martin Nyakundi o’Barimo The general elections are scheduled to be held in Kenya on August 8, in which voters will be required to elect the president and his deputy, women representatives, members of the senate and the National Assembly, governors and ward representatives. This is in line with the provisions of Article 1 of the Constitution to the effect that: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution”. Further, Article 1 (2) provides that the people may exercise their sovereign power either directly or indirectly or through their democratically elected representatives. By electing leaders, the people form a social contract with them to exercise “sovereign power” on behalf of the masses. However, once the leaders enter into office, they are under very little control of the people who elected them. Complaints of inefficiency, ineffectiveness and other vices start almost immediately against the very leaders who rode on popularity during the electioneering period. How fair and effective then, is the “democratic process”? Is democracy of any good to Kenyans? The Black’s Law Dictionary defines “democracy” as “That form of government in which the sovereign power resides in and is exercised by the whole body of free citizens; as distinguished from a monarchy, aristocracy, or oligarchy…where every citizen participates directly in the business of governing through the legislative assembly of the whole people.” There are other definitions but the most popular one is identified with Abraham Lincoln (in his humility) during the famous Gettysburg Address in which he said that “democracy” is “government of the people, by the people and for the people.” In effect, Lincoln was saying that the government is elected by the people from amongst themselves to preside over their affairs and during this process, all citizens are considered equal regardless of the social, economic, political class or any other affiliations and advantages. A professor of constitutional law and a complete illiterate are considered equal and each has one vote. Article 27 (1) of the Constitution strengthens the equality of persons by providing that every person is equal before the law and has the right to equal protection of the law. For emphasis, Article 27 (4) provides further, “The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.” The Constitution also provides in Article 38 that every citizen is entitled to political rights in terms of political party formation, registration as a voter, engagement in voting process and the like. In short, the Constitution is stamping authority in regard to equality of persons in a democratic society such as Kenya. At this juncture, it is necessary to look at the criticisms that have been levelled at democracy in regard to Kenya with a view to making an objectively independent conclusion as to its applicability as the process in which the voice of the people is heard. Democracy and elections The Universal Declaration of Human Rights (1948) states as follows: “The Will of the people shall be the basis of the authority of government; this Will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by an equivalent free voting procedures.” This is like saying that “democracy” and “elections” are like conjoined twins and none of them can survive without the other. The question to ask at this juncture is whether voting is the most effective way to express the will of the People. Are there other effective ways in which this will can be expressed? Elections in Kenya start from party nominations. In some parts of the country where parties have strongholds, winning a nomination is as good as being elected for that particular seat. The recent nominations in political parties whether in the Jubilee Coalition or in parties associated with the National Super Alliance (Nasa), there were widespread claims of rigging or favouritism by party leaders for some “friendly” candidates to the chagrin and annoyance of voters. It is said that the voice of the people is the voice of God (vox populi, vox Dei), though many have questioned whether indeed this is true. Where a political party imposes candidates on the people, then, the voice of the people does not become manifest. To make matters worse, party leaders directly award nomination certificates directly to contestants of their choice without involving the voters whatsoever justifiably with claims of lack of competition or party royalty. Recently, Raila Odinga, the Orange Democratic Movement (ODM) party leader, has awarded four hundred contestants of various elective posts with direct nomination certificates. Such developments undermine the effectiveness of elections through which the Will of the People is expressed. Another issue in regard with elections is the management of the process itself in Kenya. Over the years, whenever a general election is held, there have been persistent and continuous claims of rigging, poor coordination, delayed supply of election materials, incitement, violence, dangerous propaganda, lack of objective tallying process, discontentment, poor communication and information management, and the like. With all these factors in view, voting seems quite detached from democracy and cannot be said with confidence to be the channel through which the Will of the people is exercised. Finally, elections are an interruption to economic development because of the frequency in which they must be conducted (short termism) and the overall cost of conducting elections in terms both financially and in the overall time taken. What would happen to Kenya if elections were not conducted for 20 years? One is not likely to see several people standing on newspaper stalls discussing politics. The people will forget politics and engage alternatively in economic activities that are likely to change their lives! Democracy and education A voter requires some education to a limit where he/she can be able to exercise his/her democratic right. Lipset (1959) in his essay “The requirements for forming democracy” says that a good education is a necessary ingredient to a voter in making plausible and objective decisions during the voting process. A majority of Kenyans are not informed on matters of constitutionalism and democracy, and as a result get carried away by the public relations, propaganda and tactics of contestants instead of socioeconomic ideology or otherwise. In fact, many voters have no idea on the functions of the national and county assemblies, the Senate or even the women representatives. The voters make decisions to vote for an individual on very outrageous grounds. They can be heard making statements such as, “She always smiles and greets everyone”, or that “he gives credit to all from his butchery”. It is therefore apparent that without public awareness and education, democracy becomes meaningless. Democracy and economic development Questions have been raised as to why countries, which do not fully embrace democracy, have improved and developed their economies tenfold compared to those that are implementing democracy to the letter. Why, for example, has Rwanda become an economic hub within a few years of recovering from genocide and yet President Kagame has been blamed for being intolerant to the opposition? Perhaps Rwanda is a bit far from Kenya; what about Uganda, which, under the regime of Yoweri Museveni, has continuously improved economically despite, lack of democratic space for all? More intriguing are the quick strides made by some countries in the Orient such as China, Thailand and even Japan where discipline of the leaders and the ruled is more emphasized than democracy. Tom Friedman writing in New York Times argues: “one party non democracy certainly has its drawbacks. But when it is led by a reasonably enlightened and disciplined group of people as China is today, it can also have great advantages.” It is apparent from the foregoing that democracy delays economic development with its characteristic consents, approvals and legislations. Democracy and party manifesto Party manifestos are in essence prepared by politicians who bring them to the voters and promise to ensure that the entire manifesto is implemented if and when elected. The contestants ensure that the content of the manifesto sounds and looks rosy to convince the voter by all means. However, once elected, the politicians either ignore the manifesto or implement part of it. When the time for the next election approaches, the politicians will ask to be re-elected to “complete the work started in the preceding term”. If indeed power belongs to the people, why then do politicians make manifestos without involving the people? Who is better placed to know what the people need – is it the politicians or the people themselves? In the current set up, socioeconomic development seems to be zeroed to politicians who control the resources and how the resources are supposed to be utilised, which therefore beats the very foundation of democracy that power belongs to the people themselves. Ideally, a party manifesto should therefore be drafted by party members step by step and approved by the National Delegates conference of the party according to the unique needs of the people in all their areas of origin. Leaders and respect for democratic Institutions Democratic institutions refer to the bodies that exercise power on behalf of the people. The National Assembly, the Judiciary, the Senate and the Presidency are such institutions. Do elected leaders respect and obey decisions of these institutions? The answer is No. Many leaders and governments officials are known to openly disobey court orders and summons with impunity. Article 159 (1) of the Constitution states, “Judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under the Constitution.” What this provision is saying is that a court order derives its power from the people and therefore disobedience to such an order is disobedience to the people themselves, thus negating the very essence and meaning of democracy. Chief Justice David Maraga did not mince words recently when he reiterated the independence of the judiciary when the Leader of Government Business in the National Assembly, Hon Aden Duale claimed that Justice George Odunga had a ‘soft heart for the opposition’. Article 160 of the constitution provides that the judiciary is independent and is not subject to any control or direction of any authority except the law and the Constitution. It is not the Judiciary alone that has been treated with utter contempt. Recent days have seen various individuals threatening to disobey summons to appear before a parliamentary committee. Such threats have been identified with various governors, senior government officials and individuals. The Presidency has not been spared in this imbroglio. One wonders whether some elected leaders grasp the fact that the institution of the Presidency is a symbol of national unity. It therefore beats logic when elected leaders attack the institution with contempt and disrespect. By continuously disobeying our democratic institutions, the leaders are clearly demonstrating that democracy is not good for us. Democracy and Poverty The World Bank in the abstract “Democracy and Poverty” in 1999 argues that if democracy is fully promoted, poverty is reduced. Put mathematically, it says, when democracy increases and becomes more effective arithmetically, poverty reduces geometrically. This contention sounds very plausible indeed but the reality is quite different. Poor people cannot objectively engage in democracy because of incapacitation. A poor person cannot make an independent decision nor have an objective stand in anything. It is always obvious that a poor person detained in hospital for non-payment of hospital bills will vote for anyone who sets him/her free by paying the bill. A hungry fellow will vote for anyone who provides food. A famous Ibo proverb portrays the picture of poverty in summary: “A poor man lives by his fingers.” Recently at a political gathering at Kayole in Nairobi, a youth leader said, “…we do not want tarmacked roads because none of us has a car. We do not need electricity here because we cannot afford the bills and, besides, too much light shines on our empty pockets and flour containers. What we need is something to eat right now. We shall stand with the leader who makes our stomach warm.” What this means is that provided the voters are poor, they will not make any evaluation as to the qualification or competence of a contestant. They will obediently follow politicians who solve their immediate problems. What is worth noting is that poor people turn out in big numbers and ensure that they have voted. Wealthy people are too afraid to come out on the voting day and leave decision-making to the middle class and the poor. It is therefore logical to deduce that the majority of leaders are elected by the poor based on the stomach or their skin. In the circumstances, democracy serves no purpose. In fact, most poor people look forward to political campaigns because this is the period where many of their socioeconomic questions are immediately answered in kind or in cash. On the other hand, a majority of politicians and leaders wish their supporters remained poor forever so that they can take advantage of them in their entire political career because a rich supporter is difficult to control. Fruits of democracy It has been argued by the World Bank (1999) that democracy leads to economic development. The question of interest right now is in regard to who benefits most from the fruits of democracy. Is it the people or the leaders? The people (voters) elect leaders with a view that the leaders will utilise the minimum resources available to promote economic development and thus improve the living standards of the masses. Unfortunately, the fruits of democracy are reaped most by the politicians to the detriment of the masses. There have been allegations of corruption in Kenya where the government and various officials are accused of misappropriation of funds running into billions of shillings. This means that a few individuals pocket resources meant for an entire country or county, making the legitimate recipients of the fruits of democracy to continue suffering in terms of poor transport networks, lack of medication, lack of employment or underemployment, poor education facilities and the like. What is the use of a process that does not achieve its goals? Why should we pretend that all is well when in reality nothing beneficial to the people is ongoing? Democracy and agriculture Kenya has seen better days in agriculture immediately before independence and during the one party rule of Daniel Moi. Coffee, tea, sugarcane, pyrethrum, cotton, dairy farming and cashew nuts production were flourishing a great deal. Management of the agricultural sector was sound and very well organised. Extension officers would be seen moving from one farm to another. Artificial Insemination officers passed along particular roads at particular times on particular days to provide crossbreeds to the farmers through insemination. Agricultural societies were vibrant and fully functional. Farmers had a lot to boast about during these times. Unfortunately, immediately Kenyans started advocating and fighting for democratic space, farmers abandoned their farms as others cut down tea and coffee plants to discuss politics in various idling centres such as newspaper stalls, road junctions, markets, and barber shops. Agriculture started declining, farms became idle and hunger and starvation have become an annual event. People are no longer interested in hard work. They look forward to that nirvana promised to them by politicians, day in day out. As early as 4 a.m. in the morning from Monday to Monday, one will find a very large crowd outside Ambassadeur Hotel and the Kenya National Archives in Nairobi discussing politics every day of every week. A brief investigation will show that a majority of them were transported to Nairobi from various villages to be registered as voters in various constituencies in the city by some politicians, who, in turn give them handouts to discuss them favourably in those idle sojourns. It now seems that democracy is encouraging idleness and time wastage in our country to the detriment of agriculture. On the other hand, agricultural land is being subdivided daily during inheritance due to lack of a plausible policy in agriculture that can practically be implemented. In the absence of democracy, the government can create agricultural and residential zones in Kenya where particular crops have to be cultivated in some zones and rearing of livestock done in others. The residential zones will have a clear regulation mechanism of housing with the government providing resources for construction of habitable dwellings for all based on the income that is reaped from the agricultural zones. When this is done, social amenities such as schools, hospitals and the like shall be placed centrally in those residential areas for efficacy and effectiveness. The National Assembly and democracy Does the National Assembly recognise, appreciate and respect other democratic institutions? The doctrine of separation of powers is a widely accepted constitutional doctrine that was first elucidated by John Locke (1632-1704) in his Treatise of Civil Government, in which he stated that without separation of powers the temptation may be too great for the human frailty to handle power. Having the same persons bestowed with the power of making laws and executing them may be tempted to exempt themselves from the law, both in its making and execution to their own private advantage. Montesquieu (1689-1755) further articulated this doctrine in his celebrated work, The Spirit of Law (1748), where he recognised the three basic pillars of state authority, which includes the executive, legislature, and the judicial functions. He stated that these functions ought to vest in three distinct governmental organs with distinct office bearers. Montesquieu’s idea has been developed into a norm that consists of four basic principles: the principle of trias politica requiring a formal distinction to be made between the legislative, executive and judiciary as components of state authority; the principle of separation of personnel requiring that the power of legislation, administration and adjudication be vested in three distinct organs of state authority and that each one of those organs be staffed with different officials and employees with none serving two or more organs at the same time; the principle of the separation of functions demanding that every organs of state authority be entrusted with its appropriate functions only; and the principle of checks and balances which requires that each state organ be entrusted with special powers designed to keep a check on the exercise of functions by the others in order that the equilibrium in the distribution of powers may be upheld. The architectural design of the Constitution has put in place mechanisms to tame an overbearing executive that characterised the first four decades of Kenya’s independence period. The Constitution achieved this by expressly omitting to vest the executive authority at the national level in the president and the cabinet. Furthermore, the constitution demystified the notion that executive authority meant the residual state authority after the legislative and judicial functions have been assigned by requiring that the national executive can only exercise such executive functions as provided in the constitution or in national legislation. The Constitution establishes a parliament comprising of the National Assembly and the Senate and vests it with legislative authority at the national level. The legislative authority that is derived from the people is to be exercised in accordance with the constitution and parliament has a responsibility to protect the constitution and promote democratic governance in the country. The National Assembly is vested with authority concerning the allocation of revenue between the national government and county governments; the appropriation of funds for expenditure by the national government and other national state organs; oversight over national revenue and its expenditure; the conduct of the president and the deputy and initiates the process for their removal from office; oversight of state organs; and approval of declarations of war and extensions of states of emergencies. The Senate is vested with authority to legislate laws that concern counties; determine the sharing of national revenue among counties; oversee the expenditure of national revenue allocated to counties and; determine any resolution to remove the president and deputy president from office. Since its inception in 2013, the 11th Parliament has acted in a manner that touches on dictatorship and despotism. Parliament has been at the centre of proposing or passing Bills whose constitutionality is in doubt; it has pushed to accumulate immense powers and privileges; intimidated other institutions and sought to suppress media freedoms. Few months into the 11th Parliament analysts began to fret about the country’s slide to parliamentary dictatorship where Parliament plays sovereign and usurps powers of other arms of government. The Senate moved and passed the controversial County Development Board Bill allowing them to chair boards deputised by governors while the National assembly passed the controversial Communications Amendment Bill and called upon the President to move against the Judiciary. This Parliamentary despotism rests on two of principles; first, it is accountable to no one and, second, no one is immune to its wrath. All indications are that the 2010 constitution may have transferred absolute authority from the presidency to parliament. The National Assembly has borne the most criticism on how it has carried on the mandate bestowed upon it by the constitution. The national assembly has continued with the same dictatorial tendencies as seen in the way it handled the allocation of funds to various state agencies in the recently concluded budgetary process. State organs that are presumed to be its most critics were denied sufficient funds to carry out their mandate as a revenge tactic to the extent of threatening their disbandment. A critical look at the Constitution of Kenya reveals a glaring gap in the way the drafters of the constitution established Parliament vesting the National Assembly with immense powers compared to the Senate and other state organs. Contrary to other jurisdictions that have adopted a presidential system of government where both Houses must pass the same Bill by a majority vote before passing the legislation and passing it to the president for signing, the input of the Senate is not mandatory; the National Assembly passes all Bills directly to the President for assent. Experts and analysts decry the creation of a lame duck Senate that cannot play any role in checking National Assembly. With the current behaviour of the National Assembly, which is supposed to derive its powers from the people and to function objectively, one could conclude that democracy is not helping us at all. Members of the National Assembly attend parliament and contribute keenly when issues that are likely to promote their welfare are debated upon but claim to be busy when matters of national importance, such as drought management are on the Order Paper. For instance, a lot of statutes need amendments because the socioeconomic environment in which they were drafted has changed and hence the statutes are no longer relevant. But most members of the National Assembly are busy with their personal business living parliamentary business to a few honest members who are dedicated to doing their functions. The National Assembly has therefore failed the democratic test and is of no use to Kenyans apart from approval of budget after the interests of the members have been fully catered for. Cost of Democracy Much as democracy does not achieve any purpose in Kenya, the cost of implementation of democracy is quite immense. Buehler (1968) contends that the American democracy costs the taxpayer billions of dollars. In Kenya, the cost of sustaining democracy is a burden to the poor masses that must provide funds to pay Members of the County Assemblies, Members of National Assemblies, Members of the Senate, governors, cabinet secretaries, principal secretaries and all their support staff. The taxpayer must also sustain and retain the officials the Independent Electoral and Boundaries Commission (IEBC) who take home millions of shillings per month while in office waiting for another election to come. But that is not all. The cost of sustaining and running elections runs to trillions of shilling in terms of political campaigns, the IEBC expenditure, party nominations, damages during riots, loss of lives, injuries and court suits. The money used to run a single election is enough to sink enough boreholes that can sustain all the communities in arid and semi arid regions, revamp the agricultural sector, renovate all roads and equip all hospitals sufficiently in Kenya. Elections also interfere with peaceful coexistence, create animosity, interrupt socioeconomic development and cause displacement of people apart from loss of lives. This makes democracy to be more expensive to maintain compared to benefits derived from it. For democracy to be sustained, members of county and national assemblies must be cut by three quarters. There is no need of having so many MPs and MCAs who do not open their mouths or be of any use while representing the people who elected them. There should be no nomination of MPs or MCAs whatsoever. The Senate serves no purpose and should be expunged from the Constitution. Similarly the number of election years should be increased to ten-year terms to enable people to concentrate on socioeconomic development where the opposition is composed of level headed individuals whose aim is to put the government on course in order to achieve its entire manifesto, which must be written by the people themselves. The opposition must be a government in waiting with structures, offices and institutionalised settings that give the government plausible solutions to any problems facing the people instead of accusations and counter accusations that stall development and undermine peaceful coexistence of a people. As for the post of women representative, it is completely unnecessary since the members of the National and County assemblies represent all the people of a locality regardless of their gender and make policy for all. Indeed, many of the said women representatives do not grasp or understand their roles and no development agenda can be attributed to them. The Uwezo Fund whose roles they hold close to their chests was in reality a Jubilee coalition promise that came to pass and cannot be attributed to women representatives. In conclusion, therefore, our Constitution requires various amendments to make democracy tenable and functional in such a way as to be afforded by the masses without too much burden on their pockets.
Writer is a legal researcher at Mount Kenya School of Law, Parklands