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Next ten years carry Kenya's hopes on the rule of law

Tuesday January 21 2020
By LUIS FRANCESCHI

We all want a reason to celebrate this new decade. As Kenyans, our greatest failure would be to relive our past. We have a wonderfully drafted Constitution that is highly respected the world over and yet we live in fear that we cannot progress.

To make the 2020s better than the 2010s, we must take responsibility for our hopes and expectations. This is an effort not for politicians or lawyers but for society as a whole. We need a countrywide reboot.

Illusion 2030 or Vision 2030

Kenya’s Vision 2030, the blueprint for our long-term development, is well into the Third Medium Term Plan (2018 – 2022). The year 2020 marks the halfway point of this part of the journey. Having transitioned into a low-middle income country, a plan to guide Kenya towards increased industrialisation, better living standards as well a clean and secure environment became essential.

The revision of the Millennium Development Goals into the Sustainable Development Goals (SDGs) allowed Vision 2030 to nationalise the SDG targets. Both Vision 2030 and the SDGs are a commitment to do better.

The progress being made towards achieving our goals is illustrated below. The gap between Kenya’s needs from 2015-2030 and what is being spent to meet those needs is clear. Our goals are being underfunded, and it seems highly unlikely that our 2030 vision will be realised. This is a shared experience. Nigeria, the DRC and Madagascar’s spending gaps are much more worrying. In fact, only a handful of African countries are spending enough to help them realise the SDGs by 2030.

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sdgs spending

Source: Homi Kharas and John McArthur, Building the SDG economy: Needs, spending, and financing for universal achievement of the Sustainable Development Goals.

The Bane of Development: Corruption

The biggest hindrance to Kenya’s development is corruption. A survey of the most important problems that the Kenyan government should address was carried out in 2011, 2014 and 2016. Unsurprisingly, of all the problems, the only one to have doubled in importance was corruption. In 2011, 17 percent thought it was a problem, and by 2016 that number doubled to 34 percent.

corruption

Unsurprisingly perhaps then, Kenya’s corruption ranking by the World Justice Project’s Rule of Law Index showed no signs of improvement from 2016. Kenya has maintained her position in the bottom six countries in terms of the absence of corruption ranking from 2016 to 2019. It hardly fares any better in the Transparency International ratings.

Although perceptions and rankings serve as interesting intellectual comparative indicators, reality kicks in when corruption is contextualised. Last week we illustrated the social and economic cost of corruption on the Kenyan society and found that those affected most when corruption is rampant are the young, the sick and the poor: the most vulnerable people in any society.

The 2010s demonstrated that our governance class can be impervious to our most pressing problems. There bubble exists outside our real world. We literally cannot afford to roll over corruption and its externalities into the next decade: social cohesion is already threadbare and will not withstand more “vomiting on our shoes”. So, taking responsibility for our expectations requires us all to confront directly and without fear the monstrous evil of corruption, through all means necessary. There can be no half measures in the battle for our survival as a nation.

The “Democracy Generation”

The biggest event in Kenya’s near future is the national general elections in 2022. Since the introduction of the multiparty democratic system in 1992, the elections have been an extremely competitive event. The closer they get, the more we are reminded that we are a nation walking on a tight-rope.

In reality, elections in Africa today are more regular, relatively free and relatively transparent, fulfilling the vision of the African Charter on Democracy, Elections and Governance, than they have ever been. In 2020 alone, 22 African countries will conduct elections. Africa is leaps and bounds ahead of where she was before the turn of the century.

What makes the upcoming elections around Africa more significant is that they will be marking 30 years or so since the introduction of multi-party elections - which for most nations happened between 1990 and 1993.

In 2022 Kenya will mark exactly 30 years since the introduction of multi-party democracy. So as we enter this new decade, we mark 30 years of electoral democratisation. Political scientist Samuel Huntington called it the ‘third wave of democratisation’ or the second liberation in the parlance of African political science scholarship. Of what value has this been to rule of law in Africa?

All people born after 1992 essentially constitute a generation that knows nothing but electoral democracy. One might even call them the “democracy generation”. They expect democracy to work; the tales of tyranny are simply just fireside stories - abstract. With many born after 1992 at the cusp of adulthood, what will the upcoming elections mean for them and their progeny? What expectation do the democracy generation have for the next decade?

Everyone is aware that there are still shortcomings in the way elections are conducted across the continent. In the worst scenarios, Africans have taken up arms and fought. The loss suffered as a result of people injured, lives lost and bonds broken can never be quantified. Economically, a study of the cost of Kenya’s 2007/2008 post- election violence revealed a decrease in GDP per capita of $70 each year between 2007 and 2011. That ($70) of the GDP per capita in 2007.

The Ibrahim Index of African Governance indicates that Kenya is a country that has had an improving governance ranking between 2013 and 2017. This may have been the result of the devolved system of government adopted after the promulgation of the 2010 Constitution, among other factors.

The Governance index indicates a 6.1 point score increase in terms of Kenya’s overall democracy. However, the Participation and Human Right category within which electoral systems are examined is marred with warning signs and increasingly deteriorating factors. This is the only category with such a dismal rating. Under this category, the capacity of Election Monitoring Agencies has a -3.7 point rating. This rightly follows the embarrassment that was the annulment of the August 8, 2017 presidential election.

Given the time that the Independent Elections and Boundaries Commission (IEBC) has had to rectify the technological mishaps that were observed, the expectation is that the results of subsequent elections will be determined openly and accurately. It would be tragic to have a second presidential election overturned.

Whilst incumbency is a powerful advantage globally, African leaders have taken this advantage to new frontiers. Combined with money and powered by machinations like that of Cambridge Analytica, the regularity of our elections are matched only by the predictability of their outcome. But we remain hopeful as our turn-outs testify. The “Democracy Generation” must match expectations with responsibility by making our elections meaningful and not merely the rubber stamp to constitutionalism that they currently are.

Judicial Independence

Perhaps the only upside to the overturned elections was the display of judicial independence; the Supreme Court was able to flex its oversight powers after the 2017 presidential elections.

The 2018/2019 and 2019/2020 national budgets revealed that the Executive had slashed the Judiciary’s budget. Adding insult to injury, Parliament cut the budget even further, leaving little room for the Judiciary to engage in new developments. Although highly politicised, budgetary allocations in these years seemed ‘hyper-politicised’ due to the timing. We have previously discussed why this is a risk to judicial independence and to our future.

The Judiciary needs to find its voice and match expectations with responsibility by actively engaging for a greater share of resources when compared to Parliament and the Executive. To do so, the Judiciary must make us as Kenyans believe that they provide an essential public service and are part of our solution and not part of the problem. Creative and out-of-the-box thinking is needed here to bring the Judiciary closer to the people.

A Word on Rights

A democratic society should foster expression and debate about the matters of the day. The only way to do this is to secure rights such as the freedom of expression and media as well as public participation.

A political landscape that muffles expression and debate within the media and beyond cannot be considered democratic and free. As we approach the elections, we should aim to avoid incidents of violations against journalists and media workers like the 94 such incidents reported by the Non-Governmental Organisation ARTICLE 19 between May 2017 and April 2018.

Rule of Law in the 2020s

We now know that the rule of law is more than just a well-drafted constitution. The 2010s were our Constitution’s infancy. If we are to succeed, the 2020s will be the period when the realisation of the Constitution will begin to come of age.

What will this look like? If we take responsibility for our hopes and expectations, it will mean for example that we will look at the 2020s as a period when corruption that had run out of control will have been reigned in; incumbents will lose elections; our human development and social cohesion will have drawn us together; the weaponisation of our tribal differences will begin to seem ridiculous; our international relations will be balancing our interests across Eastern and Western powers; our education system will focus on STEM and will have embraced the developments of AI and Machine Learning.

Then, we will be an oasis for innovation and creativity and will be marching towards middle income status, at peace at home and with bloodless borders. This outcome may seem utopian. However, it is possible, but only if we make it so.

This article is part of a long series of articles on the rule of law in the context of politics and ethics. The series is researched and co-authored by:

•Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates.

•Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates

•Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates

•Prof Luis Franceschi, founding dean of Strathmore Law School and Visiting Scholar, University of California - Berkeley Law School.

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