Negotiating democratic legitimacy

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By Prof. John Harbeson

In the midst of all the controversy, conflict, injury and likely significant damage to Kenya’s reputation as an island of relative democratic stability and economic strength occasioned by the October 26 re-run of its August 8 elections, the key question emerges of how best to restore democratic legitimacy to governance in Kenya. The choices come down to how best to allocate energies and deploy residual political capital as between pursuing longer term macro level measures to enhance Kenya’s democracy versus more limited but urgently needed measures that, unless efficaciously addressed, could foreclose even the possibility of dealing with those more macro measures later on, as badly needed are needed. The ruling and opposition parties in Kenya have confronted, and continue to confront that strategic choice dramatically in at least two different ways.

This strategic choice on how best to recover and advance democratic legitimacy takes place in a global environment of stalled democratic momentum and even regression across much of the continent and beyond (including my country, but we won’t go there). Almost certainly, Kenya’s 2017 elections will be recorded as further evidence of diminishing democratic progress, even regression, over the last dozen years or so, much reported by many analysts and by organisations measuring democratic progress, notably Freedom House and the Mo Ibrahim Index.  The causes and cures of this democratic decay have been less debated and productively addressed than they need to be, taking into account especially the reality that most African states, Kenya included are, if not already fragile, subject to becoming fragile if the wrong strategic choices are made in crisis situations such as Kenya has currently faced.

Largely overlooked good news in the Kenya situation, however, is that in large part just because Kenya has made more democratic progress than many countries in Africa, notably in the passage of the 2010 Constitution, it has framed realistic strategic choices between long term democratic goals and immediate term imperatives in two important ways that would be less available or barred to countries that had made little or no democratic progress.  First, only in a country with a constitution like Kenya’s, could its Supreme Court have been in a position nullify the August 8 election of grounds of flagrant failure to administer the election properly such that it could be judged free and fair. In so doing, the Court found a way simultaneously to try to advance long-term democratic objectives and address and immediate problem. The Court might have limited itself to a forensic recount, perhaps supervising the process itself to ensure its thorough completion fixing the immediate problem but not a larger, long term democratic objective. But the Court chose to strike a major blow for the rule of law, and judicial enforcement of it, by invalidating the August 8 election for the reasons it cited. That decision has the potential to decisively strengthen Kenya democracy for the long and to resonate throughout the continent (indeed just recently in Liberia).

Second, it is not for me to pass judgment on the merits of Nasa’s decision to boycott the election re-run on grounds that the required reforms of the IEBC had not been accomplished. And, certainly, boycotts of elections by opposition parties have not been unusual. But were Nasa to focus laser-like upon insisting that the specific ills of the IEBC be addressed, setting aside for the present its longer-term reform agenda, as important as it is, the results of the October 26 re-run suggest it could have substantially broadened its base of support, even trimming the ruling party’s electoral base. In so doing, it could have advanced its own democratic credentials by contributing to advancing Kenya’s electoral democracy. Because the ruling party has repeatedly accepted and participated in electoral democracy, pressure upon it to negotiate IEBC fixes could be substantial, at the risk that not doing so could significantly undermine not only the legitimacy but also the effectiveness of its rule.  At the same time, the ruling party could increase its democratic legitimacy by pursuing a policy of noblesse oblige through working with the opposition to fix whatever is wrong with the IEBC, surely with confidence that its chances in a free and fair election would still be good.

In short, by conditioning its electoral participation upon prior mutual agreement on the crucially important nuts and bolts of the IEBC, Nasa would offer Jubilee an opportunity it could be costly for it to refuse, given the alternative of attempting to rule without democratic legitimacy and risk of expanding and deepening corrosion of its capacity to rule effectively. But by engaging with each other in fixing IEBC’s infirmities neither party directly risks to their chances in a truly free and fair election.

Amidst the ashes of failed elections, plausible pathways exist for repairing and strengthening Kenya’s still new and fragile democracy. ^

Writer is professor of Political Science Emeritus, and a professorial lecturer for the African Studies Program at Johns Hopkins University, School of Advanced International Studies

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