It was Prof Okoth Ogendo who in his seminal work Constitutions without Constitutionalism: An African Political Paradox observed that “African ruling elites are attracted relentlessly to the idea of constitutions… missing the noble idea of constitutionalism.”
In essence, the world renowned academician was talking of superbly written constitutions but which the ruling elite has steadily been chipping away their foundations so as to maintain a stranglehold on power by all means, including human rights abuses and governing by the barrel of the gun.
By using select provisions of the Constitution when it fits, ignoring the same when it doesn’t and in some instances abusing the same provisions, attacks have been incessant, making Kenya a perfect case of Javier Corrales’ “hybrid regime” also known as “autocratic legalism”.
Some also refer to such a system as “illiberal democracy”.
The waning democracy seems to be gaining traction not only in Kenya but across the world.
The Freedom in the World 2018 report by Freedom House, a US-based watchdog, last month contended that “democracy faced its most serious crisis in decades in 2017 as its basic tenets — including guarantees of free and fair elections, the rights of minorities, freedom of the press and the rule of law — came under attack around the world”.
“Seventy-one countries suffered net declines in political rights and civil liberties, with only 35 registering gains.
"This marked the 12th consecutive year of decline in global freedom.
"The United States retreated from its traditional role as both a champion and an exemplar of democracy amid an accelerating decline in American political rights and civil liberties.
"Over the period since the 12-year global slide began in 2006, 113 countries have seen a net decline, and only 62 have experienced a net improvement,” the report stated.
In the index, Kenya is classified as “partly free” along with countries known for their strongman tactics and crack down on opposition and the media like Venezuela, Zambia, Mali, Niger, Uganda and Tanzania among others.
“Political rights and civil liberties around the world deteriorated to their lowest point in more than a decade in 2017, extending a period characterised by emboldened autocrats, beleaguered democracies and the United States’ withdrawal from its leadership role in the global struggle for human freedom,” the report added.
In Kenya, recent happenings would in a way fit into Prof Ogendo’s characterisation of “Constitutions without Constitutionalism” as the safeguards introduced by the new laws in 2010 after years of struggle continue to be watered down — with an onslaught on institutions and dissenting voices.
Though the 2010 Constitution has been hailed as one of the most progressive in Africa, evidence of strongman politics of the Nyayo era have come back in full swing as the Jubilee administration faces accusations of intolerance and ruthlessly cracking down on real and perceived critics, including the media.
This, some civil rights activists fear, could be a sign of remarks by Jubilee Party vice chairman David Murathe in a television talk show September 29, days after the Supreme Court published its detailed judgment in which they nullified the August 8 presidential election.
“What this country needs now is a benevolent dictator. People have been too soft so that things have gone rogue.
"That is why you find places like Rwanda and Uganda are stable.
"But this country people wake up and make pronouncements that ‘if it doesn’t go my way then it won’t happen’,” Mr Murathe had said.
Nasa secretariat chief Norman Magaya who was part of that talk show was not amused by the remarks, least by the countries Mr Murathe had cited.
“Murathe your models of democracy speak volumes. That you can cite (Paul) Kagame and (Yoweri) Museveni as your models speaks volumes,” Mr Magaya said.
According to Mr Ndung’u Wainaina, the executive director of International Center for Policy and Conflict, history is repeating itself.
“Kenya is all back to 1960s and 70s. Abuse the constitution and consistently disrespect the rule of law, control and ensure a ‘yes’ Parliament, crooked legislation, State House (past years it was Gatundu) delegations, cripple county governments, attack and create pliant judiciary, muzzle independent voices and media, unleash State terror, dominate and force sham election, ensure enticed compliant international community, subtle ethnic profiling and isolation, small elite capture state and economy, more theft, corruption, fraud and ineptitude in public sector, unmitigated cronyism and patronage politics and create a government that excludes the people,” Mr Wainaina said.
On the eve of the “swearing-in” of Nasa leader Raila Odinga, the chairman of the Editors’ Guild Linus Kaikai had raised the alarm over government plans “to shutdown and revoke the licences of any media house that would broadcast live the planned 'swearing in' of Mr Odinga and his deputy Kalonzo Musyoka on Tuesday”.
Immediately dismissed by some within the Guild as “misrepresentation of facts”, Kenyans woke up on Tuesday to black television screens as government switched off transmission to prevent live broadcast of the Nasa event at Uhuru Park.
The situation has remained so even after High Court judge Chacha Mwita issued orders on Thursday “directing the respondents (Communication Authority of Kenya, Cabinet Secretaries Joe Mucheru and Fred Matiang’i, and the Attorney-General Githu Muigai) to forthwith, restore all television transmissions” until February 14 when the matter will come up again in court.
The black screens have been accompanied by arbitrary arrests of opposition figures and media personalities on charges and forceful entries into the homes of the government critics to enforce arrest orders, akin to the Kanu era Mwakenya crack down on pro-democracy activists.
Ruaraka MP Tom Kajwang’ was arrested outside Milimani Law Courts and spent the night in police cells on Wednesday on charges of “being present and consenting to the administration of an oath to commit a capital offence namely treason".
After hours of a cat-and-mouse games with Mr Kajwang’s lawyers and opposition colleagues, the legislator was released on Sh50,000 cash bail.
Meanwhile, lawyer Miguna Miguna’s home was broken into by police officers who arrested him reportedly for his role in Nasa’s event on Tuesday where he was at the centre of administering the oath to Mr Odinga.
Makadara MP George Aladwa was also arrested on Saturday morning and there is fear of many more arrests of opposition figures in the coming days.
Mr Kaikai and two of his NTV colleagues, Larry Madowo and Ken Mijungu, meanwhile were forced to spend Wednesday night in the office to avoid arrest after the government stationed plain clothes officers around the Nation Centre to pounce on the journalists for unknown offences.
The High Court on Friday granted each of them anticipatory bail of Sh100,000 and barred police from arresting them.
Yet these seem to be just the latest acts by the political leadership on the onslaught on the rights of Kenyans.
It started with the crack down on the civil society groups, otherwise derogatively referred to in Jubilee circles as “evil society”.
Using the discredited Non Governmental Organisation (NGO) coordination board and its executive director Fazul Mahamed who has become the chief enforcer, NGOs linked to some politicians and critics of the Jubilee regime have been the subject of harassment and intimidation, including arbitrary closures and raids.
In the run-up to and after the August 8 and October 26 presidential elections, there were a number of attacks on rights groups.
Mr Mahamed targeted the Kalonzo Musyoka Foundation, the Kenya Human Rights Commission, African Centre for Open Governance, Katiba Institute, Inuka Trust and International Development Law Organisation.
The common denominator with all those organisations that were targeted by the board is that they are either associated with opposition figures Raila Odinga and Kalonzo Musyoka, were perceived to have had a hand in the indictment of President Uhuru Kenyatta and his deputy William Ruto by the International Criminal Court, or have been critical of the Jubilee administration.
The attacks against the named organisations involved among others, claims of deregistration for allegedly engaging in matters outside their mandates and attempts to freeze their bank accounts for “operating an illegal bank account contrary to provisions of the NGO Co-Ordination Act and attendant regulations”.
There have also been summons to key officials of the organisations to appear before the board as well as raids being conducted at the organisation’s offices a combined team from Kenya Revenue Authority, Directorate of Criminal Investigations and the Board.
Meanwhile, there has also been systematic weakening of the legal foundations of constitutional commissions and independent offices either through legislative amendments, budget freezes or direct threats.
Those particularly targeted have been the Office of the Auditor-General and its head Mr Edward Ouko, the Judiciary through threats to judicial officers and unilateral slashing of judiciary budgets during the recent supplementary budget so soon after the nullification of the presidential election and the police service, which is now firmly under the control of the Executive.
According to Mr Wainaina, given the direction Kenya is taking, citizens must stand up to safeguard the independence and integrity of the institutions tasked with the defence of democracy.
“Kenyans deserve a democratic, legitimate government that upholds, defends and respects the Constitution and honours the people of Kenya in their diversity,” Mr Wainaina said.