Grading Kenya’s Democratic Practice

By Professor John Harbeson

The most widely recognized democracy-measuring indices all concur that democracy has diminished across sub-Saharan Africa as well as globally every year since about 2005. Thirty years after the arrival of democracy’s “third wave” on African shores the story in sub-Saharan Africa has been one of rapid, broadly based democracy for a decade and a half followed by decade and a half of decline. 

On balance, Sub-Saharan Africa still remained measurably more democratic in 2020 than it was in 1990, but the marginal long-term difference has been gradually diminishing over each of the last fifteen years, seemingly inexorably. Overall, Kenya has exhibited the same trajectory. 

According to widely respected Freedom House data, Kenya has remained partly free from 2005 to the present, a partial improvement over its unfree rating in 1990, but its democracy score has declined from 66 (on a scale of 0-100) in 2005 to 48 where it has remained since 2017, interrupted by an increase to scores of 57 and 56 in the two years following the passage of its model 2010 Constitution (for full disclosure, I was a Freedom House consultant on Africa for several years).

For the last two years, Freedom House has released its most granular as well as its intermediate and overarching democracy scores for all countries, permitting a more forensic exploration of the dimensions of democratic progress or decline. It scores each country from 0 (low) to 4(high) on each of 25 indicators, which it then aggregates into 3 measures of political rights (electoral processes, pluralism, and governmental transparency) and four for civil liberties (freedom of expression, organizational rights, rule of law and personal liberties like freedom to move, own property and marry). Depending on overall scores for political rights (up to 40 points) and civil liberties (up to 60 points) it assigns scores of 1 to 7 for each, where countries earning 1s or 2s for each are adjudged free, 3-5 partly free, and 6-7 unfree. Kenya has been considered partially free on both measures since 2005, with 4s on both since 2012, with scores of 3 on one or both measures in some of the preceding years.

What does a review of Kenya scores on each of the 25 basic indicators say about Kenya’s slow democratic slide from 2012 to the present?

Electoral Practice

The high court-ordered rerun of the 2017 the general election was a strong moment for the rule of law but an indication of weak electoral practice which Freedom House downgraded from 2 to 1 on scale of 0-4 where it has remained as new elections approach in 2022—one could think of it as a C to a D in academic terms. This in turn affected the perceived ability of opposition parties to emerge and offer realistic, credible opposition to the ruling party, lowering the Freedom House score from a 3 to a 2, or a B to a C, where it remains today, notwithstanding Kenya’s model 2010 Constitution.

Governmental Transparency

Notwithstanding the demands of the 2010 Constitution, Freedom House has detected no improvement in the ensuing decade from a score 1, or a D, which is probably no surprise to many Kenyans.

Freedom of Expression

Half of Kenya’s democratic decline in the decade since the passage of its 2010 Constitution has been in the areas of freedom of expression and belief, with a sustained decline from 3 to 2 on critically important media freedom and losses of a point from a strong 4 to 3 each on academic freedom, and general freedom of expression.

Associational Freedom

Kenya has lost a point each, from 3 to 2 on freedom of assembly and non-governmental organization advocacy freedom over the last decade. The one area of sustained improvement on any of the 25 measures has been in the area of trade union and professional association freedom, from 2 to 3, although perhaps there should be separate measures for each.

Rule of Law

Kenya has maintained 2 on the independence of the judiciary, punctuated by a pathbreaking high court-ordered re-run of the 2017 general election to correct for significant regularities. But the degree of judicial independence has yet to generate any improvement from a 1 – a D – in observance of due process in criminal matters, any diminished susceptibility to illegal violence, improved gender equality, or more equal treatment for all segments of the population.   

What is unnerving is the apparent absence of any multinational countervailing effort to arrest and reverse this uninterrupted democratic decline. Independently of whether one supports or opposes Kenya’s Building Bridges Initiative, it appears to be one of the few initiatives across the continent comprehensively to tackle this problem, at least in one country. 

Examining as objectively as possible how democratically written constitutions do and don’t produce fully democratic outcomes is one good way to begin a democratic renaissance.