By Muyesu Shadrack
“…You can transplant an English Olive in Africa but you must never expect it to thrive with the same foliage and green as it does somewhere in Manchester or England…” – Denning LJ
It’s largely uncontested that the Presidency as an institution has so far been an abject failure. The democratic experiment has delivered very little of the good governance it promised on the advent of multipartysm and later, the promulgation of the Constitution of Kenya 2010. Political commentators blame the current state on the average citizen who they say, “keeps electing bad leaders.” And if a solution is to be found, then this mentality has to change.
I am not entirely fond of this trajectory of thought. For starters, it is impossible to legislate political morality or even successfully call for it. A people’s thinking is influenced by their histories and socio-economic environment, which leaves a change in such environment as the only motivation behind a shift in thought-its survival, Chares Darwin’s first law of evolution.
As in many African states, the Kenyan society is highly stratified and rural (Fukuyama, 1992). People hold their tribal identities in high esteem, viewing them as vehicles to economic emancipation, or at least security. Beyond family, tribe is the most important social construct and those without it are viewed as strangers, intruders, enemies even (B. Anderson, 1983). Land, for subsistence farming, culture or pastoralism, is a most sacred natural resource and therefore one held in equally high regard. It’s by a fidelity to tribe that land is protected. When people gain a formal education and society becomes more urbanised, the value of land and tribe gradually diminishes. A discourse on rights and a newfound business stake in government pushes them to make electoral choices that benefit themselves- their white-collar jobs and their businesses and not their tribes. They also pay greater attention to the day-to-day health of government. By societal evolution, the definition of “self” significantly alters from a perceived well being on the account of tribe to obvious well being in an optimally functioning market economy.
Developed societies can only be sustained by liberal democratic government (Fukuyama, 1992). Conversely, if introduced in primitive environments, liberal democracy is actually counterproductive. The results are like what we are seeing right now – tribal voting, uncritical media and a corrupt and dysfunctional government which citizens lack the capacity to hold into account.
Evolution: these changes take a long while to manifest. And when imposed on a primitive society, the benefits of liberal democracy will take a long while before they can be felt. A good example exists in Socialist central planning that catalysed industrialisation in a single generation for many second-generation industrial states, a process that had taken early industrials centuries to accomplish through non-coercive means. Yet, this is not to say that we should abandon our Constitution and fall back to autocracy. As German philosopher William Hegel argues, the primary goal of every human being is recognition and the system of rights guarantees that (Hegel, 1956). Once people have tasted freedom, it cannot be taken away from them without the risk of anarchy (L. Henkin, 1990). A proper government system for Kenya can only be one that appreciates our situation. Our liberal democracy must be moulded in the image and likeness of our society – this is government autochthony, and fewer argue it better that Ashutosh Varshney, who, in “Ethnicity and Ethnic Conflict” writes:
…Ethnic pluralism, it is argued, requires political institutions distinct from those that are suitable for ethnically divided societies. A mechanical transfer of institutions forms regardless of whether a society is marked by deep ethnic divisions can cause ethnic violence. The foundations of these arguments go way back to John Stuart Mill in the nineteenth century. Mill had claimed that common loyalty to a political centre was a precondition for a democracy to function. A multi ethnic society was likely to have many loyalties, not one. Only under the tutelage of a more politically advanced community can order be maintained and ethnic violence avoided. Tutelage was necessary until a civic consciousness towards a political centre, not to an ethnic group emerged… (C. Boix and Susan C. Stokes, 2007)
The Constitution of Kenya, 2010, failed in this regard. It gave freedom and demanded responsibility without thought of the citizens’, the ultimate caregivers of democracy, ability to exercise oversight. It also created a bicameral legislature along with the demands of federal government but with an erroneously constructed and therefore impotent Senate. For those wishing to get and/or stay elected, liberal democracy in Kenya means political patronage and tolerance of impunity in return for political position. The importance of tribe has elevated the importance of tribal and regional kingpins while making powerful, often corrupt, power brokers a must have for any would be politician (G. Cox, 1997; see also Coughlin Peter J. “Probalistic Voting Models” in S. Kotz, S. Johnson and C. Read eds., “Encyclopaedia of Statistical Science”, vol. 6, 1985). An immediate solution to the bad governance would be if good leaders are significantly detached from a primitive electorate, these tribal kings and corrupt power brokers and the Constitution, with the supervision of the courts and an empowered legislature left as the only yardstick against any excesses.
For a strong Senate
Senate is otherwise referred to as the upper house because of the higher pedigree of persons it consists of, or the nature of interests it represents (Appadorai, 1942), not necessarily because of an elevated role when compared to the National Assembly, as some believe. Various Houses enjoy various powers in various bicameral states. Most important is that each House should be uniquely composed and with duties different from those of the other house. Composition is generally varied by adopting a different election or appointment criteria for each house. In some federal states, members of either house even serve varied terms. Depending on the state, Senators could be appointed, proportionately appointed or elected- directly or through a mode of elections. Ultimately, it is the House that is purely elected or best mirrors the electorate that enjoys more powers. In federal states, this House is often the upper house – and the lower house in unitary states.
Interaction between the Houses is the key influencer of legislative outcomes. Especially in federal states, senate exists to ensure that the interests of the federal constituents are not swallowed up by the whole. But most importantly, its existence provides an opportunity for the improvement of legislation through sober reflection and an air of permanence (Hamilton et al., 1788). A Bill goes through both Houses until a consensus is reached or until a stopping rule comes into play. It is this second role that raises the Senate to sort of an appeals chamber. The effective discharge of these roles calls for pedigree.
One argument for the Senate in the United States was that it improved the quality and guaranteed the stability of legislation. Long terms for senators allowed them to become professional legislators, well equipped to deliver the object of good government as well as protect legislation, often negatively affected by the shifting tides of the lower house defined by the rapid turnover of members (Hamilton et al. 1788). In Switzerland, the mode of election into the Upper House, the Council of States, is determined by the cantons. They elect representatives on their own terms. Elsewhere, in the United Kingdom, for a long time, the House of Lords reigned as preserve of the aristocracy while in Australia, senators are elected for six years where representatives in the lower house are elected for three.
These are some of the better functioning legislatures and in all of them, senators seem to be professionals, astute debaters, war veterans… really the crème of society.
The same can hardly be said of our own Senate. In terms of pedigree, the National Assembly and the Senate are similarly composed with any difference arising by sheer coincidence. Representatives of both are elected at the general election and they serve a similar term. The main role of the Senate is to serve and protect the interests of counties and participate in presidential oversight. While the former function is often exercised in conjunction with the National Assembly, the latter must be carried out in conjunction with the National Assembly. Otherwise the Senate has no appellate jurisdiction. It’s mostly dormant hence repeated calls to scrap it. Because of this, our laws are shallow and susceptible to the rough and tumble of elective politics.
A council presidency
Is it also time we considered a Council Presidency?
The nature of electoral politics in Kenya is that only a coalition of large parties (tribes) can deliver the presidency. Losers feel left out with many more tribes all but guaranteed the impossibility of a stint at the helm. As argued earlier, in return for the support of another party, a candidate will trade government business, appointive and elective positions or even money. Success means that public service is dominated by persons from the coalition partners’ backyards. It also means a departure from public procurement rules to award business to cronies and slow justice in the tolerance of politically invaluable corrupt and the sacrifice of the less valuable (Cox, supra). Parliament is equally conflicted hence inability to effectively discharge its functions under Articles 94, 95 and 96.
Ethnicity remains a central component of political relations in Kenya. For the longest time, regionalism was mooted as the perfect antidote to the liberal democratic phenomenon of the perpetual dictatorship of numerically larger ethnic communities. Some have even made calls for outright secession, dismissing unitary government in Africa as a western concept conceived under the influence of greed and socio- economic desperation. “It’s only right that each tribe went back to governing itself.”
While logically sound, such government is impossible where, in a country like ours, there are 42 tribes. But it is also true that, even with the introduction of federalism, national government remains the preserve of select few – with serious ramifications to the combined majority of the smaller tribes. Devolution has been chocked by counties’ reliance on national government. It has also done nothing to curb corruption, tribalism and bad governance. This is why we need a council presidency representing the 8 original provinces.
As it is with the Federal Council of Switzerland, members of the council should be equal in power and responsibility but with a ceremonial chair who is really, a first among equals. Council members from among themselves elect the chair for a single one-year term. He is to act as the face of the council. Deliberations should be made with the aid of a vote. Just as it happens in the Supreme Court, a tie of votes should mean the defeat of the contested motion. As the executive branch, members should be appointed through a competitive public process in the same manner the chief justice and his deputy is appointed. And though subject to parliamentary oversight, the council should enjoy a security of tenure.
Council presidency does not guarantee good government but it at least spreads the tokens of clientelism and political patronage amongst the represented tribes. An appointed presidency enjoying a security of tenure also means a presidency that is able to freely execute its mandate without fear of the political cost. In fact, a strong senate and the council greatly improve the chances of good governance.
The drafters of our Constitution borrowed heavily from the best democracies, but we are duty bound to find a system that fits our own situation.