The
Constitution Implementation Process with a Focus on Elections
Presented on 31st October 2012 at Intercontinental Hotel,
Nairobi
Good Morning Brothers and Sisters,
The coming general elections in Kenya, slated for 4th March
2013, are the second-most important since the independence elections held in
May 1963. While most of Kenya’s electoral processes have largely been peaceful
(save for 1992, 1997 and 2007), there remains cracks that always point to a
breakdown of electoral rules and general disorder in most of the elections held
since resumption of multiparty politics. These include:
a) highly controversial and often
violent political party nominations, which sideline women, youth, marginalized
groups and so on, due to their highly competitive nature and undemocratic
rules;
b) an electoral register that
does not contain all names, especially of a burgeoning young population and
often ‘ghost voters’;
c) the first-past-the-post electoral system (FPTP), which creates all
manner of disparities such as anomalous results, which therefore do not lead to
universality and equality of the vote;
d) a highly insensitive electoral
process to the needs of vulnerable groups such as persons living with
disability;
e) an electoral system that seems largely controlled by whoever occupies
State political power, who often manipulate the electoral management body; and
f) electoral areas that are a result of past and continuous
gerrymandering by the political party in power, which therefore lead to
discriminatory results within the FPTP system.
The above systemic and structural weaknesses led Kenyans, through
constitutional review process, to seek a more credible, transparent and
reliable electoral system, which could translate their vote into real choices,
and meet internationally-respected standards for any electoral system. Some of
the principles espoused in the Constitution of Kenya (2010), reflect the
thinking of not only the framers of
the Constitution (the Committee of Experts) but its makers as well (the Kenyan people). Generally, these principles
aspire to create a more equal electoral system, one that is accountable and
where progressive representation of previously marginalized groups can access
power through elections of such groups or through any other means that Kenyans
might deem fit. The principles cannot be read in isolation within the Chapter
on “Representation of the People”; other Chapters such as on Leadership and
Integrity, Executive, Legislature, and Devolved Government among others, should
be read together with the principles of the electoral system and structure.
The upcoming elections are unique in many ways. To summarize:
1.
They will be held under the new Constitution which
brings a new legal framework (e.g. Elections Act, 2011) and new institutions
which are perceived to be largely independent and credible.
2.
And deriving from the above, the elections will have
an unprecedented number of candidates - at least six. This number of candidates
‘flattens the pyramid of power’ to the extent that the most coveted seat of the
presidency will still have some residual powers, but so will the seats of
governors and senators. Unlike before, these powers are checked and balanced.
3.
From a regional
and international perspective, the elections will be held on the same day/date
unlike other countries, which have these sorts of elections split in weeks such
as in Uganda in 2011 or Nigeria in 2010.
4.
Most voter/civic education has targeted subjects such
as leadership, democracy, the importance of the vote and so on, but have hardly
interrogated the voter mentality in Kenya. That is, why voters despite all past
civic/voter education, have cast ballots based on factors such as ethnicity,
clanism, bribes solicited, and other such factors. Perhaps this points to the
urgent importance to review our voter education curriculum before these
elections.
5.
The cost of these elections will be one of the biggest
in the country and the region, yet Kenya is still to fully recover from the
effects of the 2007/2008 election violence. Indeed, these elections will
require, and have shown, a huge budgetary support from within the country and
outside, and this, therefore could lead to a heavy toll on our post-elections’
national and county budgeting with perhaps huge inflation and budgetary
deficits as a result. The second part to this issue is why any foreign
government(s) would hugely fund the elections budget deficit in Kenya, against
the stipulated standards of the UN of having elections largely funded by the
sovereign State. While the political role of the diplomatic community in Kenya
is largely present, it is interesting to see which foreign countries fund the
election budget deficit and for what interests.
6.
Finally and perhaps more importantly, the elections
will be held against a backdrop of the fraudulent presidential elections of
2007, and hence if successful, will create a new sense of legitimacy for that
president and government that is formed, since the current grand coalition
government has no direct electoral legitimacy: it is a ‘negotiated government’
under the auspices of the Kenya National Dialogue and Reconciliation (KNDR)
mediation agreements, which essentially underpin this government’s reason for
existence. Thus, these elections are a serious test for electoral legitimacy
among the Kenyan populace to whoever emerges as president and forms the next
government.
CONSTITUTIONAL PROVISIONS
The Constitution is crystal clear on the provisions relating to the
elections, especially what could be termed as ‘hardware’ issues (law, not
practice). These include provisions of the Constitution in and of
themselves that do not require legislation to implement; legislation that is
required to be enacted to operationalise some principles; and finally,
institutional that were to be established to ensure that the people’s
aspirations of a new order, alluded to in the above Background, are
realized. Whereas there has been
progress on some of these fronts, there have also been serious gaffes and
overlaps along the way in terms of misinterpretation of the Constitution and
other laws, unconstitutional legislation, weak legislation, or simply weak
institutions: especially those institutions that are critical to ensuring
elections are credible and accountability is fostered.
Second, the Constitution also envisages ‘software’ issues (practice,
not law) that require serious changes in Kenya’s political culture before,
during, after and in-between the elections. Political culture is nurtured and
relates to the attitudes, belief systems, ideological perspectives, opinions
and such like concepts that are ingrained in a people towards the political
system, which include political parties or State institutions and their roles
in a democracy. Political culture affects the citizens’ perceptions of
political legitimacy of the government.
The above ‘software’ issues are not necessarily legislated but are based
on whether citizens believe in them and practice
them. In other ways, there is the practice
of disobeying laws without commensurate accountability (impunity). The issues include: elections that are free, fair and
credible; elections not tainted by voter bribery, corruption or violence;
individual and democratic freedoms that must be exercised with restraint and
respect for others’ freedoms; independence of the electoral management body;
and finally the extent to which voters’ attitudes influence how they exercise
their choice. With regard to the latter especially, within the Kenyan context,
some commentators have alluded to warped choices made by Kenyans regardless of
‘voter education’. The enforcement or implementation of these ‘software’ issues
depends on the prevailing political culture among the public; and hence, no one
can legislate for instance how voters make their choices.
From the foregoing, it is therefore clear to assess Kenya’s preparedness
to achieve a free, fair and credible elections, it is important to assess, or
indeed compare and contrast, the ‘hardware’ and ‘software’ issues, and the
extent to which there are achievements (progress) or challenges (deficits) in
each of the issues. Ladies and Gentlemen, this is why we are here today.
For the full article please go to www.crecokenya.org
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