Parties have failed to serve as pillars of unity and democracy

Saturday March 11 2017

Newly-sworn-in President Uhuru Kenyatta (right) holds a copy of the Constitution that outgoing President Mwai Kibaki (centre) had handed to him during the former's inauguration at Moi International Sports Centre in Nairobi on April 9, 2013. PHOTO | EMMA NZIOKA | NATION MEDIA GROUP

Newly-sworn-in President Uhuru Kenyatta (right) holds a copy of the Constitution that outgoing President Mwai Kibaki (centre) had handed to him during the former's inauguration at Moi International Sports Centre in Nairobi on April 9, 2013. PHOTO | EMMA NZIOKA | NATION MEDIA GROUP 

By YASH PAL GHAI
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As we move rapidly, almost ferociously, towards the general elections, it is important to reflect on the values of elections and democracy. Kenya became democratic at independence. Democracy did not last long. It was killed by conspiracies of presidents Jomo Kenyatta and Daniel Moi. An essential purpose of suppressing democracy was to establish the absolute rule of the president, which in turn was to capture the state and plunder the resources of the state. The principal beneficiaries of these regimes were relatives and friends of presidents and ministers, mostly members of their own tribes, and over whose thefts and illegalities there were no sanctions.

RESTORATION OF DEMOCRACY

The objective of the 2010 Constitution was to bring about fundamental changes in state and society. A major objective is peace and national unity, based on democratic principles, while recognising our ethnic, cultural and religious identity. The system of government is to be based on essential values of human rights, equality, freedom, democracy, social justice, good governance and the rule of law. Hugely important is integrity in public officers, including legislators, given their widespread corruption. Much care went into the restructuring of the state to achieve these objectives, most fundamentally in electing and removing members of parliament and county assemblies. Kenyans are encouraged to exercise their rights and freedoms, and seek the assistance of independent commissions and above all a re-organised and strengthened judiciary.

ROLE OF POLITICAL PARTIES

Great care was also taken to ensure a truly democratic political system, for only then could rights and freedoms and social justice prevail. Political parties were enjoined to provide the basis of both democracy and national unity, respecting human rights, and avoiding ethnicity, race, religion, or region as their basis. From the very beginning, however, it became clear that the conflicts of interests between politicians and the people could not be so easily erased. Political parties in Kenya had not been champions of democracy, rights or justice. And now, while citizens looked forward to a future of equality and equity, the politicians plotted the seizure of the state, as a means of grabbing national resources, fomenting ethnic conflicts, and marginalising civil society.

Consequently, promoting national unity is defined as a primary responsibility of political parties. As a way of promoting national unity, the parties must themselves have a national character—meaning, among other factors, having membership reflecting the diversity of Kenyans (including “minorities and marginalised groups”) and having nationwide presence. Parties must not be “founded on religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred of any such basis”. They must observe high standards of integrity. In order to avoid the violence that had become so endemic among political parties, the Constitution prohibits them from engaging in or encouraging violence by intimidation of its members, supporters or opponents, or from establishing paramilitary or similar organisations.

Parties themselves must respect democratic principles in the organisation and management of their internal affairs. They must respect and promote human rights and freedoms, including gender equality and equity—and more broadly they must promote constitutional objects and principles, including the rule of law. To ensure that these rules are respected by the parties, the independent office of Registrar of Political Parties is established, with authority to refuse to register parties, or de-register parties, that do not fulfil these terms.

FUNCTIONS OF PARTIES

Most Kenyans think that the function of a political party is to win elections, regardless of its tactics: intimidation, bribery, corruption, breaking up meetings of opposing parties, mobilising ethnic hatred, or cheating at the polls or vote counting. In a democracy, these tactics are unlawful, as they are in Kenya. A key function of parties, totally ignored in Kenya, is formation of policies offered to voters. The law requires parties to promote policy alternatives responding to the interests, concerns and needs of citizens; respect and uphold democratic processes as they compete for political power and promote consensus building in policy decision making on issues of national importance. The role of parties is not mindless attacks on other parties. Instead they should ensure free competition among political parties in respect of different political views and principles; fostering trust and confidence through co-operation; mitigate political differences through constructive dialogue enhancing harmony and promote national reconciliation and build national unity.

LARGESSE FOR POLITICAL GROUPS

To prevent the illicit collection of money, the law provides for grants of funds, up to 3 per cent of the national revenue, to political parties which satisfy certain criteria. The fund must be used to promote democracy, encourage people’s participation in political matters, provide civic education, influence their public on policies, and promote membership of women, disabled or disadvantaged in legislative bodies. Political parties can raise limited money from other sources, but they must be lawful sources.

It is well known that huge sums of money are collected by politicians, including from illegal sources which then depend on favours from the recipient once in office.

No individual or even party can envisage standing in elections unless they have huge sums of money to buy votes with.

The system of illicit funding has had a most negative effect on integrity among politicians and civil servants and in the private sector as well. So pervasive is corruption, largely for electoral purposes, that our well-endowed president admitted that he (and presumably his government) could not control it.

ELECTORAL SYSTEM

In a fundamental reform of the electoral system, the Constitution aims at “free and fair elections”, “free from violence, intimidation, improper influence or corruption”. An independent body must ensure that elections are transparent, and administered in an impartial, neutral, efficient, accurate and accountable manner.

A great deal of detail to achieve these goals has been set out, including that the voting system should be “simple, accurate, verifiable, secure, accountable and transparent”. However there have been few elections in Kenya’s history which have not been criticised for unfairness, corruption, and most of all, violence.

FINAL THOUGHTS

Despite the optimism about the new Constitution, politics have changed little. As we approach the general elections, it has become clear that the parties have no respect for constitutional values. The old system of violence, corruption, party- funded and organised political rallies (geared more to attacks on opposing parties than discussion of their own policies), and exchanges of insults with their rivals have marked the start to the election seasons. Kenyan politicians have the irritating habit of starting election campaigns almost a year before the elections, neglecting their duties as president, governors, and members of legislatures, instead of what sensible countries do—about three weeks. We have already seen massive use of violence. The government has ensured that the police and army have become enemies of the people, instead of friends as the Constitution prescribes. Civil society has been harassed and the rights and freedoms of citizens and foreigners alike are under threat from a nervous president. The quarrels among politicians on basis of purely personal issues have debased us as a nation. We Kenyans are ashamed of our political “leaders”.

Yash Pal Ghai is former chairman, Constitution of Kenya Review Commission and the Kenya National Constitutional Conference.