BY Tioko Ekiru Emmanuel
In 1931, Carl Schmitt published an article, “The turn to the total state”. The total state that Schmitt describes is not yet a totalitarian state; rather it is one in which the traditional lines between the sphere – in which the private law society governs itself and the sphere of state intervention, or the public domain – have been undermined. According to Schmitt, the pluralistic forces of civil society have captured the State and made it an instrument to serve their purposes. Everything is up for grabs politically. It is a state of political mobilisation and deep ideological conflict, reflected in the plurality of deeply divided political parties in parliament.”
In sharp contrast to Carl’s contention is Hannah Arendt, who wrote in the immediate post-war era postulated the Origins of Totalitarianism in 1949, at which time the world had been confronted with evidence of the Nazi apparatus of terror and destruction. Arendt distinguished the regime of terror and that of totalitarianism. According to her, totalitarianism methods of domination are uniquely suited to programmes of mass extermination. It also involves not merely aiming at elimination of physical life; rather, ‘terror’ is preceded by the abolition of civil and political rights, exclusion from public life, confiscation of property and finally, the deportation and murder of entire extended families and their surrounding communities. In other words, total terror aims to eliminate the total-life world of the species, leaving few survivors either willing or able to relate their stories.
Paul Collier a professor of Economics at Oxford, in his thesis “Wars Guns & Votes: Democracy in dangerous places” wrote about civil war and insurgency. In the chapter “Greed and Grievances” he argued that armed rebellion had more to do with access to financial resources than with any deep commitment to ideology. Collier further argued that Wars, Guns & Votes carries on from where the Bottom Billion left off. In fact, he asserts, the bottom billion is more prone to insurgency and civil war than the rest of the world.
This aspect of Collier’s postulation is powerful, making it hard to refute many of his conclusions, some of which are disturbing, iconoclastic or both in our present political clamour. He destined to upset a lot of people when he asserted that democracy is bad news for countries of the bottom-billion. It usually ends in tears, he said, not to mention grand larceny, murder and even genocide. Upon a closer look, he argues that elections alone do not amount to strong democracy. It is true to articulate, without institutions that promote transparency and accountability, that the cynical, and greed elites will be centre of everything. In an affirmative sense, democracy is equal to bloodshed. It is a matter of paying ultimate price.
In order to understand and appreciate what totalitarianism in the context of the present Kenya, we need to make a case study of our post-independence reign to where we are today.
Historical account of rights abuses
The seed of human rights violations and autocratic rule was planted in Kenya right at independence when, in 1964, the minority Kenya Africa Democratic Union (KADU) voluntarily dissolved itself and joined the Kenya African National Union (KANU, turning Kenya into a de facto one-party state and paved the way for a despotic executive.
As result of an opposition absence, Kenyatta swiftly created a highly centralised, authoritarian republic, reminiscent of the colonial structures.
When Moi took over, in an attempt to provide a conducive environment and a new dawn to the republic, instituted a raft of measures, including releasing all twenty six political detainees a cross the ethnic spectrum, most whom had been languishing in jails for years. Secondly, he promised Kenyans that his administration would not condone drunkenness, “tribalism,” corruption, and smuggling, problems that were already deeply entrenched in the country.
His administration also took quick action against top civil servant officials accused of corruption, culminating in the resignations of top police officials including Police commissioner, Bernard Hinga.
Needless to say, he began to institute an authoritarian and oppressive one man-state, where corruption, “tribalism” and human rights became distant concerns. He popularised the Nyayo slogan within the context of love, peace and unity – through which he wanted ordinary Kenyans to perceive him as a true nationalist. As result of his dictatorial tendencies, the late Jaramogi Oginga Odinga and George Anyona sought to register a socialist opposition party in 1982 to counter his rule. Moi hit back by making the country a de jure one party state.
He started criminalising competitive politics and his critics. Throughout the 1980s to 1990s, security forces, particularly the police, were used to suppress free speech and freedom of association. To survive, people, especially civil servants and KANU officials – out of a profound fear – began to sing his praises in the manner of scared sycophants.
At one public function, a senior minister stated, after his appointment, “…Even lobsters and fishes of the sea, within our 200-mile limit and even beyond, pay obeisance to our great President, the Honourable Daniel Arap Moi.”
The attempted coup in 1982 only served to solidify Moi’s grip and control of state power – which he tremendously expanded – and solidified his authoritarian streak. In 1986, Parliament quickly acted to sanction unchecked executive power, which was followed by the 1988 Act No.4 that imposed limitations on the independence of Judiciary, with far-reaching human rights limitations.
Between 1989 and 1991, Kenya experienced one of the worst human rights violations periods in its history. Advocates of multiparty politics were accused of subversion. A number of multiparty champions were detained without trial in the infamous Nyayo torture Chamber – amongst them were John Khaminwa, Raila Odinga, Mohamed Ibrahim (now Supreme Court Justice), Gitobu Imanyara, Charles Rubia, James Orengo and others.
Despite pressure by internal pro-democracy and human right groups, another type of repression came into scene after the 1992 elections: informal state repression. This involved use of proxy agencies to attack pro-democracy and human rights supporters.
During December 1992 elections, and again 1997, the government used the state instrument of powers like Electoral commission to place gain undue advantage over the opposition to maintain status quo. Private militia and groups of thugs were used to disrupt opposition rallies.
Government adopted a number of strategies to undermined free and fair elections, including lopsided voter registration which excluded opposition voters, an Electoral commission of Kenya (ECK) that was blatantly biased and was micromanaged by the state agents, as well as intimidation of journalists and banning of print media that was critical to the regime.
In the face of popular demand for constitutional reforms new political outfit, the National Rainbow Coalition (NARC) was born in 2002 and rode into power on the promise of delivering a new constitution within one 100 hundred days, which it then failed to implement until after the highly disputed 2007/08 elections, formally promulgated in August 2010.
The term ‘constitutional moment’ was popularised by Bruce Ackerman when he aptly posited, “the constitutional moments in America were transformative times of political crisis in which the electorate had succeeded in effecting constitutional changes collectively as a moment through extra-constitutional means”.
In other words, it was a moment when previous forces against constitution-making converged to usher new opportunities for the state to revise or overhaul the constitution that could not mediate aspirations and conflicts between different groups.
It is a time where a “rising political movement succeeds in placing a new problematic at the centre of political life.” Ackerman’s postulations fit the Kenya circumstances like a glove because, as a result of their struggles, we, like the Americans, realised a new political dispensation. But truth be told, the journey was rife with enormous challenges and obstacles, as we are now witnessing locally.
As Walter Ochieng put it, “the striking thing about the constitution of Kenya, when compared with other constitutions, is that it is emphatically transformative. It seeks to deal with a past characterised not only authoritarianism of the government but also other like patriarchy and class oppression.”
In other words, it seeks to undertake a reconstruction of the economic and social ruins of the previous dispensation. It retains from the past only the good and defensible and turns it back firmly on the rest.
The question of legitimacy
Constitutions are essentially tailored to regulate or limit state power. A constitution is, however, more than just a set of rules or laws regulating society and government. It is an expression of the general will of a nation, [the sum total of] its history, fears, concerns, aspirations, vision and indeed, the soul of that nation.
Regrettably, constitutions in Africa have, for long, been viewed predominantly as legislation that legitimises executive action and establishes the supremacy of the state over society, this has greatly undermined the root essence of constitutionalism.
As has been pointed out by Ihonvbere, constitutionalism and constitutions are not new phenomena in Africa. Notoriously violent and oppressive states, such as South Africa, which have dark pasts, riddled with oppression and apartheid, had an all-encompassing constitution and practised a certain level of constitutionalism. Authoritarian regimes and military dictatorships like of Jean-Bedel Bokassa in the Central African Republic, Idi Amin of Uganda and those of Sani Abacha in Nigeria, also had constitutions.
Regardless of the claims made by them and their apologists, one could hardly consider such governments to be genuinely practicing constitutionalism. While the aforementioned constitutions were legal, they were not legitimate apparatuses of governance.
Constitutions are premised on the acceptance of state power as legitimate. A constitution without legitimacy is not a constitution at all. Legitimacy is a function of shared values which, in turn serve as the foundation of constitutionalism. The scope of constitutionalism and legitimacy operate in accordance with this approach:
Constitutionalism entails a sufficiently shared willingness to use legal mechanisms as opposed to using force to resolve disagreements; to check government power and to protect fundamental human rights through a defined and acceptable process; to provide a reasonable degree of predictability and stability so that people can trust and rely on the system and its structures; and to maintain and uphold a government that is legitimately in office and has the will and effectiveness to maintain order, promote public good, and control private violence and exploitation.
Manifestations of tyranny post-2010
Johann Synman, in his paper “Suffering and politics of memory” propounded that after society has gone through a particular form of trauma, it eventually finds a way of healing and extricating itself from it.
He argues that society erects memoriam in remembrance of those who were involved, significantly, in the struggle, or played an exemplary role in the clamour for the freedoms we enjoy. Other societies also craft the constitutions in response to dealing with trauma. Lourens du plessis, in the same breath, with regard to the South African Constitution, deems it as a memory and a promise states – that the South Africa constitution is a monument in the sense that it provides epic achievements after years of apartheid oppression. It is a memorial since it serves as a reminder to the nation that they have an obligation to ensure social justice is engendered.
The 2010 Constitution has been hailed in the global platform as one of the most progressive and transformative in the world. It came with a clear mission of redressing the horrors of the past, historical injustices and stigmatisation – of one man tactics and human rights abuses. Nevertheless, it is excruciatingly painful to report that there has been serious constitutional mockery by the present ruling cabal. Evidence of strongman politics have come back in full force.
The president’s callous preference of diction right after the Supreme Court nullification of the 2017 presidential election was rather disturbing and diminishes his stature as the symbol of national unity. Secondly, the powerful gust of dictatorship is sweeping across the nation and unless this erratic and intolerant behaviour patterns are checked, the country is headed for sure damnation. We are witnessing a gradual slide back to the intolerant and tyrannical dark years where leaders run roughshod over the Kenyan populace.
A considerable number of leading lights in the opposition are being intimidated, harassed and incarcerated without due process; the government of the day has shut down media houses in complete disregard to court order which is a sure recipe for anarchy and lawlessness. The new mantra of dealing with dissent voices is suppressing free will and free speech. The Kenyan landscape is slowly turning into a police state by dint of militarisation of the security forces.
Prof Okoth Ogendo, a renowned Kenyan scholar, in “Constitution without Constitutionalism: An African political paradox” observes that “African ruling elites are attracted relentlessly to the idea of constitution…missing the noble idea of constitutionalism.”
Essentially, the present government has been hasty in employing selective provisions in the constitution to work against its citizenry.
The philosophy of horizontal and vertical application of constitutional rights invokes the truism that the state is under obligation to observe, respect, promote and fulfil the rights and fundamental freedoms of the Bill of Rights. The state is under obligation to protect right-holders against other subjects.
Whatever the case, what we are witnessing now is carpet bombing on the gains achieved since the promulgation of the 2010 Kenya Constitution and it appears that the ruling elite is out to annihilate the Constitution. We are tottering at the precipice and the rule of law has been thrown to the dogs.
What we are viewing in the country presently are the tactics of one-man rule. It is an affront to the rule of law, constitutionalism and human rights. Our country deserves a democratic government that upholds, promotes, defends and respects the constitution.
Kenyans defeated totalitarian reigns in August 2010 when we collectively promulgated the new constitution. Before we are doomed we must reject retrogressive forces of status quo, and the mockery of the constitution.
The dark forces must know our constitution is a living document with soul – a nation conscious instrument – and it’s a representation of what Etienne Mureinik in, “A bridge to where?” described as a radical departure from a deep culture of authority to one of justification. (