Rule by majority is not always a sign of healthy democracy

Death does not sound a trumpet,” the Congolese often say. The grim acceptance that death comes impetuously and without a herald must surely have something to do with the historical tribulations of the Democratic Republic of Congo.

The saying came to mind recently when I heard a group of pro-Jubilee lawyers gleefully holding forth on their ‘tyranny of numbers’ and the inevitable walloping that CORD will suffer in elections later this year. When the whisky finally hit them, they were loud, jingoistic and full of incendiary rhetoric.

Raila Odinga, they proclaimed, does not get it: Kikuyus won’t ever allow him near power.

Though I mused whether state power was a patrimony of the Kikuyu to bequeath, three things from that talk worried me. One, even among the educated — the Nairobi chattering classes — there is an unsettling investment in feral politics; a delusional sense of ethnic entitlement and a confused assumption that democracy is equal to electoral majorities.

Two, if political chaos breaks out after elections this year, it now clear that all sides have already crafted a cop-out narrative: the Kikuyu cast the problem in terms of agitation from the ‘West.’

The Luo in terms of the greed of those from ‘Mount Kenya.’ Three, having been exiled from cyberspace, political argument in Kenya has become the preserve of barroom simpletons and sops, part of the reason it has become so incoherent.

To retrieve political debate, let’s re-state some truths. One, we are wedded to majoritarianism as if majority rule is itself democracy rather than merely a decision-making rule.

Two, Kenya has become a country where results are known before elections are held. Unfortunately, that is an institutionalised autocracy not a democracy. Three, we now routinely argue as if public opinion is all that should worry our leaders, forgetting that what is popular is not always democratic. Consider.

PLAY MUSICAL CHAIRS

First, many Kenyans have bought into the wrong-headed idea that an electoral win is a warrant to play musical chairs with state power. Some talk as if Mr Uhuru Kenyatta and William Ruto’s victory in 2013 gave them title to power, rather than a temporary franchise to run Kenya for the benefit of all and not merely for that of their co-ethnics, the Kikuyu and Kalenjin. Majority rule is merely a decision rule for making collective decisions, it is not itself democracy.

The crucial point is that in a constitutional democracy, such as Kenya, power is vested in the people collectively not in a majority of them. The fact that a decision is made by the many rather than the few gives it no moral superiority whatsoever.

Majority rule is only a method by which voters elect members of the political branches of government: the president and parliamentarians. Studies of voting rules — especially the seminal work of the Nobel Prize winning economist Kenneth Arrow — conclusively show that under certain conditions, majority rule produces perverse results, meaning that it cannot be justified on efficiency or moral grounds.

There is a more basic reason: the point of democracy is not voting. Its purpose is to secure some core values and principles. These are: an inclusive and fair society; a commitment to resolve disagreements peacefully; judges who are independent of politicians and businessmen; protection for minorities; government by explanation not commands and threats; respect for property; authority exercised through laws that are publicly announced; respect and protection of the rights of individuals and provision of security for the public.

A system that fails to protect these values and principles fails as a democracy even with regular elections.

Secondly, in a democracy there are no pre-determined election results because majorities are temporary. Though this should be obvious, it needs to be explained.

POLITICAL ACTION

Losers in today’s election accept the result because they believe that they can win tomorrow’s election. Indeed, one of the functions of rights — even though they are desirable as ends in themselves — is as tools for politics. Take the freedoms to speak, assemble and associate.

Behind these freedoms is a commitment to debate and political action: losers in elections can persuade some supporters of today’s winners to defect and vote differently in tomorrow’s election.

Rather than take up arms, losers bid their time because they know they can play and win in the democratic game in the future. In Justice Holmes eloquent words in US Supreme Court case of Whitney v. California, “‘those who won our independence’ understood the risks of the tyrannies of governing majorities and knew that it is ‘hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate’ and ‘that hate menaces stable government’. For this reason, they ‘valued liberty both as an end and as a means’ believing ‘liberty to be the secret of happiness.”

Liberty is the tool we use to persuade others to change their minds and to be persuaded by them to change ours. Thus, as we saw, Uhuru Kenyatta and Kanu lost the election in 2002; William Ruto and Raila Odinga lost in 2007 election but then Ruto and Uhuru combined to win in 2013.

Those who wanted a new constitution lost out in the 2005 referendum but they won in the 2010 referendum. If they had thought that they would lose again and again in perpetuity, they would opt out of the democratic game altogether. If results are always certain and the same majorities win all the time, there is no incentive to play the electoral game.

When are results certain? Take a hypothetical example, say, a Christian minority in an Islamic theocracy like Saudi Arabia. They would be a permanent minority whilst the Muslims would be a permanent majority. The Christians would lose on every important political vote.

This problem also occurs in deeply divided societies. Inter-ethnic distrust can lead kindred groups to form permanent alliances that ensure that excluded groups lose all the time.

Such elections, says Donald Horowitz, author of Ethnic Groups in Conflict are, in truth, ‘an ethnic census’ not elections. It is this that breeds violence in elections in Africa. Electoral violence is common in those countries that regularly hold elections that the opposition cannot possibly win.

It could be that there is an institutionalised majority — like Zimbabwe — or the government makes it impossible for new majorities to emerge — like Uganda. An electoral deck perpetually stacked against opponents of the incumbent breeds violence. It is hope coupled with trust that institutions work fairly that sustains the faith in democracy.

FUTURE LEGISLATION

Thirdly, although it is the case that something that is democratic is also popular, it is not the case that something that the majority likes is necessarily democratic. As Walter Lippmann once caustically remarked, one might as well call the lynching of black people democratic because the whole white American South likes it.

The majority will always want to have their wishes written into policy. But in a democracy, the constitution limits very sharply what majorities can do.

These limits are minority vetoes and they are many. One is the Bill of Rights. El-Molos have a right not to be tortured. Majorities cannot vote to torture them even if it could be shown that the economy would record double-digit growth for the next two decades as result.

Two, powers are split and then separated: parliament legislates; the president executes and courts judge. Majorities cannot vote to have terrorists tried by parliament because they think Majority Leader Adan Duale will do a better job than Chief Justice Maraga.

Three, powers are split and then devolved and each level granted its own exclusive powers. Majorities cannot vote to transfer county powers to the national government because they dislike what the Council of Governors has been doing, especially under Governors Peter Munya and Isaac Ruto.

Parliament is split into the Senate and the National Assembly. Majorities cannot decide that all future legislation will now be considered in the Senate alone.

One might object that majorities can amend the Constitution, abolishing Counties and the Senate. True. But such changes need super-majorities in Parliament — in fact two-thirds of the vote in both Houses — and an absolute majority vote in a referendum. Observe though. Strictly speaking, a super-majority vote operates as a minority veto.

When a constitution sets a high threshold, say a seventy-five percent vote of two Houses — it allows a minority, twenty-five percent-plus-one, to block any amendments it does not like. Seen thus, a super-majority vote is a minority-protection device, not a pro-majority rule.

So much for the principles: what is the point? It is that Kenya needs a proper debate. Eight months to what is likely to be a deeply divisive election, there is screaming rather than debate everywhere.

Leaders on either side are ladling out bigotry, ethnic prejudice and dramatic narratives on the dangers of another Kikuyu presidency or, conversely, the perils of a Luo, Luhya or Kamba presidency. In a country sizzling with combustibles, that surely is fuel to the fire.

The writer is a constitutional lawyer, [email protected]