Kenya is entering an undeniable democratic recession

Police officers on patrol along Parliament Road in Nairobi on the December 18, 2014 before the Security Laws (Amendment) Bill 2014 was debated by Members of Parliament.

The passed amendments do not address the root causes of terrorism and insecurity, which is corruption and an unreformed security sector. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP.

What you need to know:

  • While the Executive and its officers are the visible faces of constitutional repression, the legislature and the judicial arms are equally culpable. 
  • If Parliament, the institution that has benefited most from the dispersal of power away from the executive, is leading in casting aspersions on the soundness of the Constitution before full implementation, clearly the recession had begun.
  • The joke is that at best, the Supreme Court would order the parties to reach an agreement and record it with the court.

Many Kenyans hold an inaccurate view about the country’s economic standing relative to its neighbours and other developing countries. One sees this in the preposterous but widely cited claim that Kenya at independence bore a socioeconomic status comparable to that of Singapore, Malaysia, or both, at that time.

The one area in which Kenya has had a deservedly solid reputation, with tremendous progress, is in the character of its formal political and civil rights protection.

Many visitors genuinely get surprised that for all its challenges, Kenya’s political leadership and its people deserve credit for the passage of a wordy, but admittedly compact, Constitution.

Many people also think that the Constitution’s greatest test comes in the intended enactment of the Security Laws (Amendment) Bill 2014. Yet the demeanour of various arms of government shows that the country is bound for a democratic recession, with the possibility that its constitutional journey will come to an abrupt and painful stop.

A democratic recession is not in itself a destination, but a process during which formal rights and arrangements for the organisation of institutional power are eroded, whether by default or design.

While the Executive and its officers are the visible faces of constitutional repression, the Legislature and the judicial arms are equally culpable. There has been a decisive swing away from the liberal Constitution that Kenyans voted for in 2010.   

SELECT COMMITTEE REQUIRED

To my mind, the singular illustration of the democratic recession is the fact that despite the clear plan laid out in the Fifth Schedule, implementation through the passage of basic laws has been delayed. The Legislature bought itself time through a hurried agreement that enabled it to suspend the trigger for dissolution of Parliament as was stipulated.

This was a telling signal that strict adherence to the implementation order of the Constitution was of secondary interest. There is your first piece of evidence that the democratic recession was being enabled.

Among the excuses Parliament offered was that the Executive was responsible for delays in ensuring that the legislation was brought in for passage. This reason does not make sense, considering that the Sixth Schedule of the Constitution requires the formation of a parliamentary select committee responsible for oversight on implementation.

Parliament should have anticipated delays and taken legislative initiative to ensure that it performed its constitutional obligations.

Apart from the delays in the implementation and the arguably illegal shifting of deadlines, Parliament has sent a signal that its members are uncomfortable with selected provisions of the Constitution.

For instance, while Parliament allowed itself the extension of time to pass the legislation that it should have passed by the fifth anniversary of the Constitution, its members were arguing for an audit of the cost of a Constitution that had only been implemented in part.

JUDICIAL MISSTEPS

Dispassionate observers should be concerned because this phraseology is very similar to that of the political actors and bureaucrats who were opposed to the wholesale replacement of the old Constitution.

If Parliament, the institution that has benefited most from the dispersal of power away from the Executive, is leading in casting aspersions on the soundness of the Constitution before full implementation, clearly the recession had begun.

A democratic recession often works when one arm of government, usually the Executive, either forcefully diminishes the stature and authority of the other arms or simply co-opts them.

Using this lens, it is doubtful that Kenya’s Judiciary would stand as a bastion for faithful implementation of the Constitution. To begin with, it is clear that the Judiciary and its leadership has made missteps that have rendered them unable to take the moral high ground and convince Kenyans that its decision making is fully independent.

It is doubtful whether judicial officers are likely to beat back an egregious attempt either by the Legislature or the Executive under the guise of avoiding a crisis.

CONTESTED, THIN MARGIN

Seen against this background, it is understandable that the many Kenyans who stand against passage of the Security Laws (Amendment) Bill 2014 have no confidence that the Supreme Court would declare some or any of its many clauses patently unconstitutional.

The joke is that at best, the Supreme Court would order the parties to reach an agreement and record it with the court.  

This brings us now to the reason that an administration elected on a contested, thin margin carries an unpopular and repressive Bill, with confidence in its expected passage, in the Legislature.

Against this background, where the Legislature and the Judiciary have ceded power to protect and interpret the Constitution to the Executive, the democratic recession has long begun. Passage of the Security Laws (Amendment) Bill 2014 would merely confirm that the recession is now under way. What Kenyans will be proud of after this, one cannot tell, but there is surely reason to be very afraid.