After almost five years, I returned to Kenya for a whirlwind two-week visit in late October and early November. My visit coincided with the fiftieth anniversary of my first visit to Kenya for two years in 1965, less than two years after independence, when I was a research fellow at the Institute for Development Studies at the University of Nairobi.
My overarching sense is that Kenya’s democratisation momentum may have reached a plateau. Democracy is firmly rooted in important ways that one can easily overlook in the maelstrom of controversies, many very serious, that swirl continually. But I did not sense any areas in which Kenya is still becoming more democratic than in the past, with the possible exception of devolution. I sense that Kenya’s democratisation has not arrived at a stable plateau but rather one that is perhaps at a tipping point in a struggle between, on the one hand, those seeking to sustain and employ to the maximum existing democratic processes and institutions and, on the other hand, those that threaten to undermine much that has been achieved to date.
In profound and underexplored ways, I am persuaded that the international political and economic climate, on balance, may not be as supportive of sustaining and furthering democratisation as it might be, the decade of the 1990s being a singular Halcyon moment in this regard. And, as I’ve confessed before, I am also not sure that academics like myself have quite captured the political economy of democratisation in current African circumstances as well as we might.
Four bright spots stand out, attesting to sustainable democratisation by its vigorous practice, notwithstanding threatening official moves to weaken or curtail them. One, the media’s vigorous exercise of its constitutionally enshrined freedom deepens and sustains democracy. Two, devolution is unquestionably a major step in the advancement of democracy and in constraining continuation of the untrammelled executive power so deeply rooted in Kenya’s past history. This transition has been aided by previous experience with District Focus and Constituency Development Funding, even as it has been hampered by a range of unresolved financial, institutional, and political issues.
Three, I have been persuaded that the independence and capability of the Judiciary has advanced markedly under the leadership of Chief Justice Mutunga from what it has been in the past, notwithstanding inescapable controversy over some High and Supreme Court decisions, the reality that the complete restructuring of the Judiciary will not be completed during his term, and the deeper and more difficult but essential task of diffusing what one might term a rule of law culture.
Four, for all the difficulties of implementing a constitution that has given expression to such soaring democratic aspirations, I sense that confidence in the viability of the Constitution remains strong, notwithstanding efforts to amend that, if brought to fruition, might or might not improve it , that efforts to contravene the Constitution’s wide panoply of individual and group rights are met with vigorous countervailing resistance, and sharp questioning attends Executive influence on Legislative initiatives, whatever the merits, both of which reflect healthy acceptance of democratic separation of powers and checks and balances in action.
The sobering reality, however, appears to be that the besetting weaknesses of the ancient regime, before 1992, have perversely appeared not only to persist but even to worsen in the five years since the passage of the 2010 Constitution. First, there seems to be broad recognition that Kenya’s levels of official corruption, already at seriously high levels, have markedly increased over the last five years. It seems that the boundaries between vigorous exercise of long-sought liberties enshrined in the Constitution and untrammelled illicit license have been dangerously frayed, particularly in the pursuit of business interests. In the philosophy of liberalism, economic liberties are supposed to prompt and support the pursuit of political liberties undergirded by the rule of law, not ignore and corrode them.
Second, there appears to be equally widespread recognition that ethnic divides and partisanship have, if anything, deepened in the first five years of Kenya’s constitutional democracy. The less recognised irony is that these divsions have been exacerbated by the very effort to overcome them through the creation of a single market in land on the basis of freehold title. Originating with land consolidation and registration in the final colonial decade, the policy has been continued by each of Kenya’s independence governments, further deepened by patronage politics and impunity in land allocations. As well, anxiety about the outcomes of the International Criminal Court cases of William Ruto and Joshua Sang, which are supposed to strengthen and restore the rule of law, has appeared to have the perverse effect of exacerbating tension-heightening ethnic speech.
Third, the principal target of Kenya’s quest for a democratic state has been curtailing untrammelled, impunity-girded executive power. Among numerous indicators that the impulse to wield such power persists, the Constitution notwithstanding, perhaps the clearest is the struggle over the administration of land between the ministry and the National Land Commission. The latter was vested with wide-ranging authority to establish rational, effective land use and curtail impunity long associated with the former. Much depends on the balance that contestation eventually yields.
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