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Saturday, January 21, 2017

Why Kenyans Should Keep An Eye On The Trump Presidency


Despite the major changes inaugurated by the 2010 Constitution, the Kenyan Presidency still sits comfortably and unchallenged at the pinnacle of our politics. It is propped up by many of the norms that developed in the last half-century, especially during the dictatorships of Jomo Kenyatta and Daniel Arap Moi. Over the period, many looked to the United States for a model of how a powerful Presidency could be constrained. However, since last year, goings on over there have had a distinctly familiar ring.

During his unorthodox campaign, Donald Trump, who is to be inaugurated as President of the United States this Friday, violated with almost total impunity many of the norms, if not laws, that have served to keep American politicians in check for decades and centuries. "I could stand in the middle of 5th Avenue and shoot somebody and I wouldn't lose voters," he memorably described it.

“The American presidency has never been at the whims of an authoritarian personality like Donald Trump,” John Dean, White House counsel under President Richard Nixon from 1970 to 1973, told McKay Coppins of The Atlantic. “He is going to test our democracy as it has never been tested.”

Geoffrey M. Hodgson, Research Professor in the University of Hertfordshire, defines institutions as “systems of established and prevalent social rules that structure social interactions. Language, money, law, systems of weights and measures, table manners, and firms (and other organizations) are thus all institutions.” In their insightful book, Why Nations Fail, Daron Acemoglu and James Robinson, describe institutions as simply the rules, written and unwritten, that influence how systems work.

While the language may be slightly different, the intent is essentially the same. Institutions are about the way things work rather than merely a set of formal organizations or even formalized rules.

The United States system is a case in point. Americans love to hold up their constitution as the ultimate defense against tyranny. But while the formal rules regarding governance it proposes are an important bulwark, arguably American democracy is built on a foundation of social norms and expectations much more so than formal rules.

For example, the two-term limit for presidents was not part of the Constitution. Rather, it sprang from George Washington’s decision not to run for a third term and held for the better part of a century and a half until Franklyn Roosevelt violated it in 1940. In fact, it was not until 1951 that the US constitution via the Twenty-Second Amendment finally imposed term limits. Similarly, the fundamental role the Supreme Court plays in assessing the constitutionality of legislation is not expressly provided for in the Constitution either.

It is for this reason that Trump poses such a big threat to American democracy. His refusal to release his tax returns, for example, bucks a near-5 decade old practice observed by all major party candidates which is designed as a measure to enhance transparency. The multiple conflicts of interest he carries into the White House and his statements about similarly flash the finger at years So does his post-election lack of moderation and disdain for “political correctness”. Yet the latter has been crucial in helping to keep the ugliness of overt racism, xenophobia and bullying out of mainstream American politics. Trump’s demeanor during and after the election have however legitimized conduct previously considered beyond the pale.

Donald Trump already has changed America, and not necessarily for the better. In the next four years, he will continue to affect not just the US, but also attitudes towards it in countries across the globe. The question is whether he will fashion it in his own rather grotesque image or whether the country’s institution will prove resilient and tough enough to contain him. In either case, there will be valuable lessons to be learnt from the continuing American "experiment in democracy". For Kenyans, struggling to implement our own democratic system of governance and to develop the social norms and attitudes that will underpin it, it would be wise to pay close attention.

Sunday, January 08, 2017

The Tyranny Of Numbskulls

Over the last few weeks, the country has been embroiled in an acrimonious and largely inane debate on changes to the country’s elections laws. The controversial revisions to the Elections Act seek to introduce a “complementary mechanism” to the integrated electronic electoral system for identifying voters and transferring results from polling stations to tallying centres.

Yet no one knows what this proposed “complementary mechanism” is. It not defined in the law but has been widely interpreted to refer some sort of manual backup to be employed in case the biometric and electronic devices fail as they did in 2013. That would allow voters to be checked off a physical register, basically a printout of the electronic one, and for forms containing results to be physically transported from polling stations where all the voting and counting happens, to the tallying centres where results are ultimately announced.

If such a manual system is what is contemplated, it is not clear whether it would be different from the system that was in place prior to 2013. In essence then, the law would not be proposing a backup but taking the country back to an era where elections were routinely stolen. In his presentation to the Senate, Royal Media Services proprietor, SK Macharia, noted that of the five general elections held in the multiparty era, in only one had the candidate for President receiving the most votes been declared the winner.

In fact the move to an electronic system was in response to these repeated failures, which were the trigger for the 2007/8 post-election violence. In a 2010 paper, the immediate former chair of the Independent Elections and Boundaries Commission, Ahmed Isaack Hassan, declared that “based on the recommendations of the [2008 Kriegler Report], the Commission was determined to have a fully automated electoral process, from e-registration, e-voting and finally e-transmission of results.“ While the system the IEBC eventually settled on had both manual and electronic components, it is nonetheless clear that the latter was introduced as a cure to the former. The amendments seek to reverse this and now present the discredited manual system as the cure.

And remembering that the electronic system was meant to deal with specific problems in the manual system, it is notable that there has been little articulation by the amendment’s proponents of what has been done to fix those. That the experience of the 2013 elections where the IEBC was forced to revert to a completely manual system has not featured prominently in the debate is also telling.

But what is most galling is the fact that the entire debate is conducted without benefit of an understanding of how the electoral system as a whole is meant to function and where gaps and opportunities for mischief exist. There is also much conflation of issues which leads to confusion. For example, the case for a “complementary mechanism”, not as a backup, but as a check on abuse of the electronic system is much stronger when dealing with transmission of results than with voter identification.

In transmission, the two systems could function together simultaneously, each as a check on the other, as the IEBC had apparently intended in the 2013 election, with the instantaneous results transmitted via the electronic system being provisional until verified via the physical delivery of the form. The idea was to discourage the practice of election officials disappearing en route to transmission centres and eventually turning up with doctored forms. With the information having been already sent ahead via the electronic system, any discrepancy would immediately raise a red flag and the ultimate back up would be the ballot boxes and the ballots contained therein.

Since there is no dispute about biometric voter registration, the identification of voters via a physical printout of part the information contained in the electronic register has much less appeal. The requirement for the biometric registration was designed to solve the perennial problem of ghost or dead voters, first by ensuring the register is populated with details of real, living voters and secondly to ascertain that the person who turns up to cast a ballot is the actual registered person. It also eliminated opportunities for mischievous electoral officials to “vote” on behalf of registered voters who didn’t show up.

If the electronic voter identification system was to break down entirely, as it apparently did in 2013, any credible “complementary mechanism” would have to be robust enough to handle these challenges. A physical printout simply does not cut it.

Further, the lack of an audit has meant that we are reduced to putting out sporadic fires instead of addressing the system as a whole and dealing with root causes. We fail to see the wood for trees. Yesterday we were fighting over IEBC commissioners. Today it is voter identification and results transmission. All are important to fix but are only a small part of our dysfunctional electoral system which requires a complete overhaul. Everything from ID issuance to security to disposal of petitions needs to be looked into. 

For example, there is little discussion about the weaknesses shown up by Raila Odinga's 2013 petition against the election of President Uhuru Kenyatta. The Supreme Court had only 14 days to deal with it. The IEBC essentially ran down the clock by refusing to provide him the documents he needed to make his case until compelled to by the courts. As a result, was not heard on its full merits. In fact, as reported by George Kegoro, one Supreme Court Justice openly admitted that he might have ruled differently if he had had more time.  Yet we still have no law compelling the IEBC to hand over documents to petitioners nor are we contemplating changing the constitution to give the Supreme Court more time as recommended by former Chief Justice, Dr Willy Mutunga.

Clearly, the current debate has been held hostage to the narrow interests of politicians as opposed to those of Kenyans in general. The manner in which the Jubilee coalition has bulldozed the amendments through Parliament, despite its own Senators acknowledging that the Bill contains unconstitutional provisions, amply demonstrates this. In fact, the entire discourse on electoral reform has been polarized by politicians seeking advantage rather than attempting to reason out and fix the problems with the system. What they want is to win. Whether that win is secured in a fair and open manner is of secondary importance to them. 

Yet it is a matter of life and death for the rest of Kenya. Thus the passage of the amendments and their imminent signing into law by President Uhuru Kenyatta should not be the end of the matter. We still can and must free ourselves from the tyranny of numbskulls and insist that needed reforms are not left to the whims of politicians but are discussed and agreed in for a that include a much wider array of stakeholders and interest groups including but not limited to academics, professional associations, media, civil society and religious leaders. The reforms must also be about resolving the historical problems that have plagued our elections and ensuring a transparent, free, fair and credible vote, rather than a win for particular candidates.

Friday, December 30, 2016

Kenya's Biggest Electoral Problem? Not Solving Electoral Problems.

Britain’s Queen Elizabeth famously declared 1992 an “annus horribilis”, one which, she said, she wouldn’t look back with undiluted pleasure. For many around the world, 2016 has similarly turned out to be a horrible year. From the deaths of several pop culture icons; to the millions forced to flee senseless killing and destruction in the middle east; to the political earthquakes that were the Brexit vote in the UK and the election of Donald Trump in the UK, 2016 has been one for the books.

For Kenyans, the year is ending largely as it begun: in uncertainty, fear and with a sense of foreboding.

We were barely through the second week of January when reports begun filtering through of an attack on Kenyan forces serving in an obscure centre somewhere in south western Somalia. El Adde would soon become one of the most familiar Somali place names in the country as the true scale of the tragedy unfolded, despite the government’s best efforts to hide it. With between 140 and 200 Kenyan soldiers slaughtered by the Al Shabaab terror group and another dozen taken prisoner, it was Kenya’s largest military defeat and made a mockery of the claim to being one of the continent’s most effective armies. Following the incompetence and malfeasance on show during the Westgate Mall attack in 2013 and in Mpeketoni and Garissa University thereafter, El Adde was the final nail in the coffin of the Kenya Defence Forces vaunted reputation.

In the final weeks of the year, the air has been thick with more fears, this time of a distinctly homegrown variety. The long-simmering dispute between ruling party politicians and their counterparts in the opposition coalition over the ground rules for next year’s general election has once again burst out into the open. The ugly scenes and reports of fisticuffs in the National Assembly that accompanied the passage of the amendments to the Elections Act as well as the opposition threat to renew their campaign of street protest have raised temperatures and the potential for politically-instigated violence across the country in 2017.

On the face of it, these two situations couldn’t be more different. However, a deeper examination reveals that they spring from the same root: namely the Kenyan penchant for ignoring and postponing problems rather than confronting and resolving them.

At least since Westgate, it had been clear that there was something seriously wrong with how the Kenya Defence Forces conducted operations. And every year since has brought more cause for concern. Yet, whether it is accusations of being engaged in the smuggling sugar into Kenya and charcoal out of Somalia or allegations of indiscriminate shelling of civilian villages both inside and outside Kenya, or of bungled responses to terror attacks, the response has been either denial or a deafening silence. There have been no attempts to hold the military top brass to account for the many failures or, at least publicly, to understand and eliminate the reasons for them. What a senior police officer told the Nation is probably true of the military: “The police service has basically learnt nothing from Westgate, Garissa, Mpeketoni and others.”

Similarly, it has been clear, since the 2013 general election, that there were many serious flaws in the country’s electoral system. From the fact that the Independent Electoral and Boundaries Commission did not know how many voters it had registered, to the preponderance of voter registers, the frozen screens at national tallying centres and the admission by one Justice that the Supreme Court might have ruled differently given more time, the signs of systemic failure were clear.

Yet for nearly three years there were no demands for a comprehensive and independent audit of the system to identify and fix the problems. Instead, as the current furore over the electoral law demonstrates, we have allowed the politicians to hijack the discourse of reform, just as they did in 1997. That, unfortunately, did not turn out well a decade later.

The amendments to the Elections Act passed earlier this year following the street demonstrations initiated by the opposition, mandated that the elections be run on an integrated electronic system, defined as "including “biometric voter registration, biometric voter identification and electronic result transmission system”, which the IEBC was meant to have put in place by December. That has not happened. And so even the current standoff over whether there should be a back up to the electronic system is somewhat moot as there is nothing to back up. 

Yet all parties keep declaring their commitment and fidelity to the electronic system. Even the Jubilee cohorts pushing for a manual back up, keep saying that it would only be needed in case the (non-existent) electronic system breaks down. The truth is, it is all theatre. It is all for show. Instead of dealing with the real issues, the furore is about obscuring them. It is about keeping us focused on the problems of our politicians, not our own.

Nine years ago, Kenya was nearly dissolved in an orgy of killing and destruction that followed a bungled election. The stage for that catastrophe was set a decade earlier when we allowed the push for comprehensive electoral reform to be hijacked by the political class under the banner of the Inter Parties Parliamentary Group. In the end, the IPPG only put a band aid on our gaping electoral wound which was callously ripped off by Mwai Kibaki when he tore up its “gentleman’s agreement” in 2007.

Not fixing our problems is what has landed us in the trouble we are currently in. And if we hope to ensure 2017 is more annus mirabilis than annus horribilis, then that is a habit we must break.