Chief Justice Willy Mutunga recently pointed out that the biggest enemies to Kenya’s war against graft, bad governance and tribalism were her “elites.” To the extent that these “elites” and our current crop of political leaders or opinion makers are synonyms, he couldn’t be more correct. It is the Chief Justice’s “elites” that either perpetrate the continued thriving of the negative choice factors discussed in the first instalment to this article appearing in last month’s issue or, worse, condemn the application of ancient jurisprudence in developing an entirely new yet thoroughly needed “African” jurisprudence. That democracy is currently the best system of government is a fact that is not in dispute. In contrast however, this editorial seeks to propose a variant of democracy that is considered upon the socio-economic diversity of Kenya as a nation. The right to choose under Article 47 of our Constitution and indeed the entire framework of election laws and government structure, ignores this diversity. The case for the need for homemade election system is best captured by Ashutosh Varshney (2007) who observes: “…Ethnic pluralism, it is argued, requires political institutions distinct from those that are suitable for ethnically undivided societies. A mechanical transfer of institutions forms regardless of whether a society 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…” Choice studies have proposed alternatives to democracy as we know it, with the most common ones being deliberative democracy and the social choice theory. Deliberative democracy has been defined as “…The capacity of those affected by a collective decision to deliberate in the production of that decision…” Deliberative democracy is basically the justification of choice, where choices are not just the aggregate of wishes but rather the qualification of these wishes with the end intention of ensuring that only well informed and justified choices are used to compute this aggregate of wishes. Deliberative democracy stands on the pillars of information, substantive balance, diversity and equal consideration. With regard to information, deliberative democracy demands that all affected parties participate in the choice process on the basis of information. Substantive balance and conscientiousness demand that comparisons on different opinions be made, based not on emotion, thought or intuition but on cognisable supporting evidence. Diversity, on the other hand, requires that all positions affecting the public are considered… with regard to equal consideration, that bias should be towards the best supported choice. Modern discourse on deliberative democracy can be traced down to utilitarianism, with a particular bias towards the utilitarianism of John Stuart Mills who reasoned that an informed or clear choice can only be the product of a good life (a good life to mean an informed life – one in which the “liver” has enjoyed varied experience and therefore stands capable of a liberal construction of what is indeed good). In what can be attributed to a discourse in deliberative democracy, Mills held the view that not all choice is good choice; rather, for choice to be considered good, the person asking the question must be clear to themselves that the person making the choice has demonstrated an ability to make such choice. Curiously however, the most important factor in determining clarity of choice to Mills, it appears, was environment. Modern deliberative democracy, as already expressed, considers factors far beyond the environment, factors which ought to be fully demonstrated. In contrast, the social choice theory, disputes the notion that there can exist a rational choice. In what, on keen observation, can be construed to be an affirmation of rational choice and deliberative democracy therefore, Nicolas de Condorcet (a Frenchman widely considered to be the father of the modern social choice theory) presents the Condorcet’s Jury Theorem, where he observes that: “…if each member of a jury has an equal and independent chance better than random, but worse than perfect, of making a correct judgment on whether a defendant is guilty, the majority of jurors is more likely to be correct than each individual juror, and the probability of a correct majority judgment approaches 1 as jury size increases… under certain conditions, majority rule is good at ‘tracking the truth’…” From this argument, while social theorists argue that there can never exist a rational choice, Nicolas de Condorcet is saying that there can, in fact, exist a “better choice.” Such “better choice” can be gradually improved towards “the best choice” (i.e. rationality) with the increase of the number of irrational persons making a decision on the same matter. Per de Condorcet’s argument and, indeed, the entire social choice theory, man is generally selfish and therefore irrational. However, this irrationality is significantly diminished when two persons having different irrational biases make a choice on the same subject matter. The end result of these two people voting is not an ideal choice (as the votes cast are not based on rational considerations), but rather, a better choice which is simply the result that two similar irrational biases will hardly fuse to give life to generally agreed upon yet irrational choice. Consider this: If Person X (a leader with a proven track record) is contesting an election in which there are only two voters, persons Y and Z, social choice predicts that neither of these two voters will cast a vote informed by the person X’s good leadership qualities and in the very rare case that such a vote is cast, only one voter will cast such a vote. When voting therefore, voter Y will vote for person X perhaps because person X “has been my friend for a long time.” Person Z in the other hand will vote against person X perhaps because, “X is not from my tribe.” At the end of the day, when the votes are counted, the ideal situation of having “a leader with a proven track record” will not be achieved. Not to be sad, however, since the votes cast cancel out, a re-run may be required in which X may actually win or “we would rather stay without a leader.” Conveniently, however, both voters casting biased irrational votes may actually just vote in a good leader in person X. It wouldn’t matter therefore whether Y voted for X because X “has been my friend for a long time” while Z, a young lady, voted for X because he is “hot.” Both would have voted in person X. However, should person X actually be a very bad person and the second voting analogy carries the day, the end result will be the worst possible scenario of having a very bad leader in place. Such a conclusion is however significantly reduced because of the simple factor that hardly will a choice of such gravity be the sole prerogative of two persons and even if there was an even number of persons casting the votes, a “collusion of biases” is virtually impossible (especially in a national situation with millions of voters). Collusion When arguing a case for deliberative democracy based on de Condorcet’s argument on social choice, it can be argued that the chances of biased collusion, positive or negative, can be significantly increased when the voters share certain common characteristics. For such collusion to be possible, however, the shared bias must be a priority bias (a key component of the Social Choice Theory is that people are incapable of an agreement in which all the parties are wholesomely satisfied because all these persons have a list of preferences that is totally varied from the next person’s. Having a common list of preferences, in the order preferred, is therefore an impossibility which increases with an increase in the number of voters – the famous Arrow’s theorem). Collusion based on a priority bias has been consistently proven in the Kenyan elections seen in party and tribal biases that often tramp upon individual wishes. The only way this can be eradicated is through a moderate deliberative democracy mechanism where the choice makers have a proven understanding and demonstrable understanding of their duty with regard to choice and law-making (for the elected representatives) coupled with a moral obligation to carry out such duty in a most honest way – the elites. By and large, these elites shall form the backbone of Kenya’s system of choice. Representative “Elites” Representative elites shall occupy the Senate. Persons aspiring to be Senators shall make a formal independent application to an autonomous board set up for such a purpose. Core among the attributes that the aspirant shall seek to prove before this panel is an outstanding acumen in a certain professional field, a minimum educational qualification, a demonstration of an understanding of governance generally and, most importantly, documentary evidence to show strict adherence to Chapter Six on Leadership and Integrity. Such adherence shall be nothing less than a clean disciplinary record, physical evidence of an outstanding contribution to the growth of the county or the nation in general and a demonstrable affinity to community service or humanitarian assistance in whatever capacity. Applicants shall apply in independent capacity ‒ he party system of representation shall not apply to the Senate. Choice Making “Elites” “Elite,” for purposes of this discussion, shall be persons who have demonstrated an understanding of the functionality of government and policy-making and thus better able to make rational choices when compared to the common citizen. For purposes of legal referenda, “elites” shall represent the wishes of the general population. Voting shall be carried out in two stages. First from a pool of persons who have demonstrated elitism, the general populace shall vote for their representatives who shall double up as spokespersons. It is this group that shall vote on behalf of the citizens at the referendum. The best practice, perhaps with regard to the collegiate system, shall be to have each county cast a single vote. All the elected representatives of the county and the constituencies within the county and representatives of otherwise marginalised persons within the county shall meet to deliberate on the question of the referendum before arriving at a majority decision. This majority decision shall be presented publicly together with reasons thereof of the decision. The majority decision shall count as the general opinion of the county. The outcome of the referendum shall be the aggregate result of all county decisions. Justification of “Elite” System Several authors have proposed this choice system by the elite. Chief among them are Lijphart (1969), Hegel in Hellen B. Wood (1991) and Antonio Gramsci (1971) as interpreted by Dylan Riley (2011). Lijphart has continued to agitate for a system in which an ethnic group’s socio-political and cultural affairs are left to the group’s elite for determination. Alliances and other inter-ethnic compromises are also to be left to these elites. Controversially, Gramsci contemplated a connection between democracy and hegemony. In interpreting Gramsci, Riley made a very interesting observation. He noted that while hegemony was indeed a rule by a minority elite, such a rule should not be construed as limiting democracy as it is not only a moral and intellectual leadership, but also one that is rational. It is this rationality, according to Dylan, that makes it democratic since rationality cannot exist where there is no pluralism. Hegel is very particular that “the modern state distinctively relies on individual subjects being aware of the connection between their interests as individuals and the interests of the state”. Lijphart’s, Gramsci’s and Dylan’s arguments are relevant in this discourse because the understanding that the question of tribe cannot be entirely eliminated from Kenyan politics. Appreciating this truth, it is only the best persons from all tribes that ought to make political and legal decisions.