By Hon. Lee G Muthoga
“Governments must be kept awakened to the needs of the people. Only an opposition can do that” – Daniel arap Moi, 1964 “Premature introduction of multiparties will lead to civil unrest and its disastrous consequences” – Daniel arap Moi, 1991 in ‘African Demos’, Vol. 2The two contradictory statements above that are attributed to retired President Daniel Moi clearly show the perils of opposition politics, not only in Kenya but in Africa and other emerging democracies around the world as well. As chairman of Kenya African Democratic Union (KADU) before it dissolved and merged into Kenya African National Union (KANU) in 1964 after losing the first general elections of 1963, Moi became a towering opposition figure who championed the cause of KAMATUSA (an acronym for Kalenjin, Maasai, Turkana and Samburu ethnic groups) against dominance of the Kikuyu and Luo ethnic groups that dominated KANU. Moi agitated for the introduction of majimboism (or political devolution) as a sure safeguard against this perceived dominance. And this is where the irony begins to reveal itself. Once Moi became part of the government, he promptly abandoned the majimbo cause because it stood in his way to attaining the ultimate prize in politics: the presidency. He would not, however, abandon the KAMATUSA cause in toto, and would revert to it especially throughout the 1990s, this after multiparty politics became law in Kenya in 1991 and opposition politics began to seriously threaten his grip to power. Moi is certainly a classical study of how power changed a once-upon-a time far-sighted liberal leader into a near-sighted dictator. The ultimate irony is that Moi’s initial idea of devolution as encapsulated in KADU’s concept of Majimboism would eventually become enshrined in the Constitution, 2010, as 47 devolved units of government! As we become used to multiparty politics, it is vital that the role of “the opposition” be clearly understood by all parties involved. The word “opposition” borrowed unwisely perhaps from the Westminster parliamentary jargon is used to describe the party or parties in a multiparty legislature, which is either in government or not in government. To properly situate opposition politics in a multiparty democracy, there is need to understand what the word “opposition” connotes. In a very general sense, “opposition” means “dissension, contradiction or contrast”. Rodney Barker in a paper titled, “Opposition in South Africa: Issues and Problems”, has noted the different connotations in the word (opposition) and identified six uses of the term. Firstly, opposition may mean total resistance to the form and basis of the state; second, it may denote resistance to the power of the state when the latter is viewed as an oppressive institution; thirdly, it may refer to resistance to the group, faction or dynasty in command of the state, and to a denial of its legitimacy; fourth, it may be used to denote a loyal opposition which opposes the commanding group without either contesting its legitimacy, or threatening or rejecting the basis of the state or the constitution; fifth, it may refer to a system of checks and balances whereby the constitution guards against and corrects its own excesses; finally, the term may describe the methods whereby the citizen or group modifies a government’s actions or prevents its tyrannies, without condemning the latter as inherently oppressive. Where more political parties are involved, the word “opposition” denotes parties not in power, or the dominant party among such parties. In the older parliamentary democracies, the dominant party amongst the opposition parties is often regarded as the alternative government or “a government-in-waiting”. In the United Kingdom, the term “loyal opposition” is used to indicate that the non-governing parties may oppose the actions of the sitting cabinet while maintaining deference to the higher authority of the state and the larger framework within which democracy operates. The kind of opposition is not one that strives to overthrow the political system by use of physical power and revolutionary measures, but which endeavours to act legitimately within the framework of a Constitution. Thus in British parliamentary practice, also called the Westminster parliamentary system, “the opposition” has a clearly defined role which, simply put, is that of keeping the government “on its toes”, without necessarily undermining the institutions of the state through which successive governments operate and are legitimised. Understood this way, opposition is the ‘altera pars’ of government or power. Any analysis or history of power must of necessity embrace its counterpart logically, organically and morphologically; opposition is the dialectic counterpart of power. The opposition as the national “spare – wheel” Through a system of a “shadow government” the opposition discharges in parliament and in the country the task of critically examining and commenting upon government policy and its implementation. It provides necessary checks and balances in the implementation of the legislative policy of the government. It provides to the country the “other view” on all issues of importance. It also operates as the national “spare-wheel” to use as and when the government malfunctions. It assures the country that there is at any time a team of managers of the national political machinery ready to take over should the government suddenly lose its ability to govern. Thus, according to Ghita Ionescu (Emeritus Professor of Government at Manchester University) and Isabel Margaret de Madariaga (expert on Russian history) in their article, “Opposition: Past and Present of a Political Institution”, “the opposition party… should serve to provide a check and balance mechanism against the government, rather than collaborate with the incumbent to corrupt political society or destroy the basis for the accountability of the governors to those over whom they rule.” The opposition constitutes the necessary “promise” that a nation needs to face the future with confidence. Its existence guarantees that the nation can look into the future with confidence that there exists an alternative government should the one in power fail to deliver on its promise. For this reason, each of the parliamentary political parties strives to establish for itself the image of an able, competent and responsible party capable of forming an effective government and waiting for its opportunity to do so. A strong and vigorous opposition is necessary to keep the government on its toes, awaken it to its responsibilities and oblige it to keep to its electoral promises. This is perhaps the parliamentary opposition’s main function and purpose. Thus, although the concept of “loyal opposition” is monarchical in origin, it provides the best institutionalised avenue to check the excesses by a ruling regime and increase the possibility of legitimate ascendancy to power by potential alternative governments, a factor which decreases the possibility of crises for the democratic system. A government with a clear parliamentary majority is theoretically in a position to pass any legislation it wishes to pass. In a single-party dominated parliament, such as existed during the Kanu-era Kenya, an irresponsible use of the opportunity to control the legislative calendar of parliament is a clear pointer to a dictatorial tendency that can stifle the voice of the opposition and by extension, the voice of a significant portion of the population. In countries where there is a lack of an empowered opposition, there is the likelihood that oppressive Bills may eventually become laws, which people will have to live willy-nilly, unless a political revolution takes place. Already, South Africa is being touted as a classic case of abuse of power by the dominant ANC party in a young democracy. In Africa, the following countries boast of dominant political parties which have ruled for over two decades: Algeria (FLN, since 1962), Angola (MPLA, since 1975); Botswana (BOP since 1966), Equatorial Guinea (PDGE, since 1979), Ethiopia (EPRDF, since 1991), Mozambique (FRELIMO, since 1975), Namibia (SWAPO, since 1990), Sudan (NC, since 1989), Uganda (NRM, since 1986), Rwanda (RPF, since 1994), Tanzania (CCM since 1961) and South Africa (ANC, since 1994). The irresponsible abuse of this parliamentary opportunity by successive parliaments in Kanu-era Kenya brought the country to a position where we had to make a choice for our future; remain with Kanu and be doomed or open the door for alternative voices and be set free. Thus in 1991, Section 2A of the Constitution, which had converted Kenya to a de jure one party state in 1982, was repealed. This set the stage for more pertinent changes. The Constitution of Kenya (Amendment) Act No.10 of 1997, reinforced the repealing of Section 2A of the Constitution by introducing Section 1A which in effect changed Kenya from a one party state to a multi-party state. Further amendments of Sections 7, 33, 41, 42A, 82 and 84 of the Constitution allowed the President to form his government from members of other political parties, removed the power to nominate members to parliament and transferred it to the parliamentary parties; increased the number of electoral commissioners and included voter education and the ensuring of free and fair elections as additional roles of the electoral commission. It also allowed persons to appeal to the Court of Appeal on constitutional matters. The idea of single-party politics appears to have come to Africa via the Francophone states of West Africa, with Houphouet-Boigny (Ivory Coast) and Sekou Toure (Guinea) leading the way. By the middle of the 1960s, most of the other Francophone countries, with the notable exception of Senegal, had followed suit. In English-speaking West, East and Central Africa, Kwame Nkrumah (Ghana) with Julius Nyerere (Tanzania), Hastings Kamuzu Banda (Malawi) and Kenneth Kaunda (Zambia) were the leading lights. A single-party or one-party system by definition is a type of party system where a single political party forms the government and forbids other parties from running candidates for election. In certain instance, the term de-facto single-party system is used to describe a dominant-party system where laws or practices prevent the opposition from legally obtaining power. There are instances where some single party states outlaw opposition parties, while allowing weak allied parties space to operate as functional political parties as a way of deflecting criticism. Manipulation of ethnicities, and the culture of personality cults In multi-party parliaments, a government, even where it enjoys a clear parliamentary majority, is forced to reconsider unpopular legislative proposals largely because of the critical stance of the opposition and because of the fear that, should it disregard the popular wish of the people, the national minorities may have to pay dearly at the next general elections. In his popular book “Polyarchy: Participation and Opposition”, Robert Dahl argues that one of the key characteristics of democracy is a government’s responsiveness to the preferences of its citizens (who are in theory ‘political equals’ of the rulers). Such responsiveness requires that citizens are free to formulate their preferences, articulate them and have them considered by government in the conduct of its business. This opportunity to make the government listen to the inclinations of the electorate is central to democratic practice and includes such freedoms as the freedom to form and join organisations (including political parties), freedom of expression, the right to alternative sources of information, guaranteed, by among other things, a free press, the right to vote or be voted into public office, regular, free and fair elections, the right to own private property, and the right to good governance. The structure of our legislature relies heavily on the customs and practices of the “mother of Parliaments”, The House of Commons. Kenya, just like many other African countries, is still young in the practice of democracy. Kenya, however, is among few African countries that have made tremendous constitutional strides in limiting the tenure of the President and in stipulating the regulations governing the presidential election in Articles 42 (1) and (2) and 136 (1) and (2)(a) and (2)(b) respectively. In many so called “democracies” in Africa and elsewhere, the operational code of many Heads of State seems to mimic King Louis IV of France (1638-1715) who viewed himself as being analogous to the state when he pronounced the famous words, “l’etat c’est moi”. Although we have more than one political party, we are yet to have greater tolerances and greater exercise of fundamental freedoms. In this regard we are joined by many other emerging democracies, some of which have a lower threshold of tolerance and respect of fundamental freedoms, despite the boast of enshrining multiparty party politics in their national constitutions. However, Kenyans are entering a bold new era where they are freely expressing themselves on many topics, freely associating and assembling, and freely criticising the government; and, freely electing political leaders of their choice. So far, it would appear as if it is only the presidential elections that continue to be the single important cause of disaffection, negative ethnicity and widespread violence in Kenya. At the centre of this dispute (predominantly the 2007 and 2017 presidential elections) is the Electoral Commission of Kenya (ECK). Since 2007, however, the ECK has progressively become transparent and accountable to the Kenyan electorate in the manner in which they conduct elections. While there is a way in which the electoral commission is still work-in-progress, the same can be said of both the political leadership (in government and opposition) and the electorate, especially in their understanding of the tenets of democracy. The manipulation of ethnicities for political capital and the perpetuation of the retrogressive culture of personality cult(ism) – what is otherwise called “Big man syndrome” – are some of the factors that continue to bedevil our politics and hamper the work of electoral commission (especially) as far as the process of tallying and announcement of presidential results is concerned. The 2010 Constitution has significantly whittled down the powers of the presidency and empowered mwananchi a great deal. In Article 94(1), the Constitution has established a Parliament consisting of the National Assembly and the Senate, and provides in Article 5 (a) that, as part of its roles, it “reviews the conduct in office of the President, the Deputy President and other State officers and initiates the process of removing them from office”; and, in 5(b) “exercises oversight of State organs.” In addition, Article 96(4) provides that the Senate “participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145.” To guarantee for a wide range of rights and human freedoms, the Constitution, 2010, has one of the most progressive Bill of Rights in the world. The inclusion of the socio-economic rights under Article 43 is one of the key features that make Kenya’s Constitution a celebrated document worldwide. The expanding social media space has also helped majority of youthful Kenyans understand their rights and use the same to challenge government and its officials to account. However, there is a growing concern that many users of social media are using it unethically to curtail the rights of others especially the right to a good reputation by using the anonymity of these new media platforms to malign people without providing adequate evidence and without giving the accused persons a chance to defend themselves. Mistrust of the judiciary and the dangers it portends The exercise of the new freedoms is going to call for greater responsibility and maturity from Kenyans and their leaders. If the peace and tranquillity that we presently enjoy is to be maintained, and if the economic development of the nation is not to be undermined by political pluralism, all Kenyans, including the government, (presently Jubilee government), the opposition, and all other groups have to act with responsible restraint and understanding. In this regard, there is need to heed the famous words attributed to the US President Theodore Roosevelt (whose tenure ran from September 1901 to March 1909) that, “To educate a man in mind and not in morals is to educate a menace”. There is a sense in which the Kenyan Constitution with its two-tier national and devolved governments, coupled with independent institutions meant to provide the requisite checks and balances, has sort of “taken away” a huge chunk of the traditional role that opposition parties played during the Kanu era and, to a small extent, the post-2002 period. However, the Kenyan scholar Karuti Kanyinga has sounded the alarm that “…party politics in general and oppositional political activity in particular, are in danger of undergoing a severe decline on account of deepening popular disillusionment.” We are entering an era for which none of us is fully prepared. Neither the current government nor the opposition parties have any experience of democratic practice of multi-party politics (and indeed devolution politics), and the general population seems beholden to political leaders for their political choices. This becomes apparent after every 5 years when the country holds its general elections. Then, political choices reflect ethnic affiliations more than ideological leanings. Hence, a progressive candidate with a good political agenda in a major ethnic community may be locked out of leadership simply because s/he is of a different tribe despite the fact that s/he was born in that community. Conversely, a similarly open-minded candidate with a meaningful agenda for the electorate may be voted out of leadership by his/her own ethnic community simply because s/he has embraced a rival political party to the dominant party of his tribe. There is a sense in which majority of the political players in Kenya seem to have a hangover with the single party style politics of yesteryears, which they continue to use in their relations with other political players within a multiparty context, and are surprised when they are criticised for acting in this undemocratic manner. The level and intensity of electoral related violence, use of hurtful propaganda to undermine national institutions and office holders, use of unemployed youth to perpetuate fear and violence and disregard for the rule of law, are some examples of undemocratic and illegal behaviours that many politicians use to hang onto power. The most regrettable scenario is when aggrieved parties in a political contest contemptuously dismiss the courts as a mere waste of their time. In an article titled, “Judicial Training and Performance Appraisal: The Problem of Judicial Independence”, Professor Kate Malleson of the University of London has argued that in any democratic society,” the Judiciary has the authority to resolve legal disputes with the object of playing two important roles: social service and protection of citizens’ rights.” Mocking the Judiciary in public meetings is an undemocratic behaviour that sends the unfortunate message that the judiciary cannot be trusted, and that there are other better ways of resolving electoral outcomes than through court processes. This sends the dangerous message to citizens’ that the law, court system, judges and other agencies that enforce the law do not matter, and that one can break the law and still walk free. The linkages between quest for justice, protection of citizens’ rights and the observance of the rule of law cannot be gainsaid. Society must be encouraged to trust the Judiciary as the third arm of government, even as measures are put to expand the levels of transparency and accountability in all its systems and processes. But as Robert Dawson aptly observed in his book “The Government of Canada”, the judge should be “placed in position where he [or she] has nothing to lose by doing what is right and little to gain by doing what is wrong”. This is the spirit by which the judge should ordinarily approach any case before him [or her]. It is also the same attitude the public should have regarding their judges. Professor Malleson has cautioned that in any functional democracy, individual judges exercise judicial functions without “fear or fervour, affection or ill will”. Role of the opposition in Parliament Mistrust of the Judiciary is the unfortunate situation we must grapple with as we gain experience in multiparty democratic practice. It is against this background that we should examine the role that the opposition may be expected to play in the unfolding era. The opposition’s role should be examined in two stages. The first stage is the period that proceeds and ends with the next general election. The second stage is the period that commences with the summoning of the next Parliament. The opposition’s role should also be extended in relation to the two settings. The first setting is that of the opposition in Parliament and the second setting is the opposition throughout the country. During the first stage, the party with the majority members in Parliament is likely to remain the sole parliamentary party that enjoys a legislative monopoly. This monopoly may, however, be dented by by-elections or by loss of confidence of their leadership by members of the majority party. When this happens, the opposition takes control of the legislative authority of the house. Sometimes by-elections and grumblings by some dissident members of the ruling party or ruling coalition may not materially affect the dominant party’s legislative monopoly; however, they may strengthen the voice of the opposition within parliament. If properly coordinated, a small opposition outfit can effectively influence new legislative measures to the next free and fair multi-party general elections. The role of the opposition in Parliament is to ensure that its voice is heard on the various matters that come for debate. The idea that the opposition, because they have no “tyranny of numbers” should only oppose any government legislation is not only defeatist but a dangerous trend as well. It is defeatist because it makes the opposition lose an opportunity to support or create Bills that could have meaningful impact on the lives of Kenyans. It is dangerous because it creates the impression that the only role of the opposition is to oppose anything the government says or does without any due regard for the good that government may do. If this ends up becoming the trademark of the opposition –to oppose anything the government does for no useful reason – then the opposition is the loser. Soon citizens’ come to doubt their capacity as “an alternative government” and for this reason, may consign them in a perpetual opposition mould after every general election. There is a sense in which the general population desires a mature opposition, one that criticizes with solid facts or reasons while at the same time offering an alternative vision from the one on offer by the government of the day. Yet, despite her capricious voting pattern, the ordinary Kenyan voter is clear in her mind that running a government is not the same as doing politics. The demands by the electorate from the government and politicians are not necessarily the same and in many instances are nuanced differently. The guiding principle for all legislators, in power or in the opposition, is that Kenya, its peoples and democratic institutions should always come first in every parliamentary deliberation. Such is the role of the opposition within parliament during the first stage. During the second stage “outside of Parliament”, opposition needs to apply the art of persuasion and respect for the rule of law even as they maintain touch with the voter-citizen and demonstrate the relevance of politics to ordinary people, that is, the oppressed, the marginalized, the disenfranchised. Opposition leaders will have to learn not to merely be seen as government critics but as legislators with a serious agenda for Kenyans. They will need to assume their rightful place as visionary opposition leaders capable of offering a viable alternative to the incumbent government by designing alternative ideas, principles and policies for governing Kenya. Should the party in power let the voters down, as the “government-in-waiting”, they will take over the reign of power through a free, fair and peaceful election. As matters stand currently, the opposition has not presented an alternative vision of government that is capable of inspiring a vibrant intellectual discourse. Many leading opposition figures who were formerly critics of the Kanu regime assumed top cabinet positions in the Narc government that took over power after dislodging Kanu from power during the 2002 third multiparty general elections. Once in government, their transition from faultfinders to solution-finders was not quite forthcoming. Only a few of them had previous solid experience in the workings of government. Majority of the newcomers to government had minimal or zero experience of how government works. Insubordination, leakages of confidential government reports and disorganised government communication process became the order of the day. Things came to a head in 2005 following disagreements on constitutional referendum. The fallout led to a fractured government that limped into the 2007 general elections badly wounded. The horrendous post-election violence that followed was in part a reflection of this inability by opposition leadership to transform into proactive solution seekers once they were in government. The opposition should be able to satisfy the electorate not only by criticising government policies, but also by formulating alternative policies and selling them to the people. Quest for a responsible opposition It is much too easy to say that the economy is in shambles or that the agricultural or manufacturing industry has collapsed or even the government is unable to eradicate corruption. It is altogether a different thing to formulate policies to revive the economy, especially the agricultural or manufacturing sectors. Everyone can condemn corruption, but not everyone can devise ways to eradicate it. The opposition is expected to formulate and to sell to the public acceptable, alternative development policies and strategies to match those advocated by the party in government. The opposition is expected to complement the efforts of the party in government in fostering democracy and in implementing development strategies. A responsible opposition must be concerned about bringing forth economic development. It will have to abandon the operational style played by the pre-independence and immediate post-independence opposition, which was to oppose anything suggested or proposed by the ruling party. In this day and age, a responsible opposition party is expected to use its parliamentary presence to bring quality legislations and to provide the checks and balances necessary to assure the true exercise of democracy while bearing in mind the warning by Ake Claude in his elegantly written book, “Democracy and Development in Africa”, that, “The mere existence of opposition parties does not necessarily contribute to the promotion of democratisation.” The opposition is expected to have a full understanding of the development strategies proposed by the party in government and to critically examine such strategies. As a group, the opposition is expected to ensure that all points of view are expressed and that any proposed legislation receives adequate attention and analysis. This is because political parties as important organs for aggregating the interests of the political community articulate certain preferences, values and ideologies into the policy and law-making process (e.g. in Parliament) and in the budgeting process. Also outside parliament, the opposition parties will be expected to share with the ruling party the responsibility for national social and economic development. It would be entirely wrong for opposition parties to abandon the burden of social and economic development on the party in government. A responsible opposition will seek to foster national unity amongst the populace, irrespective of their political persuasions. The opposition parties usually carry a great burden of ensuring that divisive activities that can harm national peace and unity of purpose are avoided. They bear responsibility to educate their members against the temptation to create divisions that are based on party lines in relation to development activities. The greatest challenge of the opposition will be to distinguish between areas where their activities conflict with those of the party in government, and areas where their activities must complement the party in government. In examining government policies and development strategies, the opposition will be expected to do more than merely criticise them. They will for instance, be expected to work with the electoral commission, media and civil society organisations to monitor and improve the quality of voter registration, civic education and electoral transparency. The opposition is expected to promote responsible and reasoned debate that advances “national conversation” and pushes democratic discussion to a higher level of political development and maturity. This means supporting policies of the ruling party that are good and criticise those that are not so good while, in the same breath, explaining the basis of their criticism and offering appropriate alternatives. That is what Kenyans of today expect from a responsible opposition.
Author is currently a Judge of the Mechanism of International Criminal Tribunals