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.

Brave New Kenya

It’s less than a week since the Supreme Court put a stamp of legality, if not exactly credibility, on the presidential election. As Uhuru Kenyatta prepares to be sworn in, and the country is tries to regain some semblance of normality, it is hard not to feel that something fundamental has changed.

Not long after Chief Justice Willy Mutunga announced the decision, TV anchors were giggling at footage of a woman being forcefully undressed and her undergarments strewn about (They would later apparently issue grudging apologies on Twitter). “I don’t know whether I should laugh or get mad,” says one, apparently unsure of what would be the appropriate response to the public humiliation of a woman just because an ignorant mob did not approve of the way she was dressed. A few months ago, they would probably have been screaming blue murder. In this new era, there also seems to be little appetite for the prosecution of the attackers. In fact, the media appears determined to sweep the whole incident under the national carpet.

Neither has much been made of the case of blogger Robert Alai, who was arrested and charged in criminal court with posting offensive, annoying and false message on his twitter account about Head of Civil Service Francis Kimemia. The clamour to erase criminal libel laws has apparently today grown into a deafening silence.

It feels like something is amiss when one sees reports (later denied) of the government apparently contemplating giving sole broadcasting rights to a public event, not to mention one as important as the inauguration, to a private company. Or when one of the most respected and sober commentators appears to agree with the most rabid characterisation of prominent human rights and political reform activists, claiming they are leading us “into the dark embrace of imperial slavery.”

Perhaps we are just trying to find our bearings after weathering the electoral storm. However, I just can’t shake the feeling that our trust in the rusty moral compass that has been our guide through the political storms of the last quarter of a century has been somehow shaken.

In these new waters, the familiar landmarks are still there but seem strangely reversed. The villains of yesterday have become the new heroes of today; the rehabilitation of Daniel Moi as a lovable and wise elder statesman is almost as complete as is the demonization of those who stood against him. In a darkly ironic twist, during the election season one paint manufacturer saw fit to run ads calling for brightly coloured "peace, love, unity," the slogan behind which Moi had wreaked havoc with our lives and livelihoods. Those who oppose impunity, who take a stand against corruption and electoral malpractice, who demand the freedom to speak their thoughts or dress as they wish - these are today’s enemies.

Today, success seems measured in monetary terms. When one paper this week reported on the recently introduced traffic rules, the piece focussed on the fact that the government had collected Kshs. 500 million in fines from the over 2000 drivers that were being arrested daily. That the laws had had little effect in reducing deaths (road users were still dying at the rate of over 280 per month) merited only a passing mention in an obscure paragraph at the end of the article.

When assessing the performance of the Kibaki government, much is said of the improvements in infrastructure and economic growth, most of it ignoring the fact that when measured by longevity, knowledge, and a decent standard of living for its populace, the country's score, though improved, still comes in pretty much near the bottom of the global pile. Equally, when we discuss the new constitution, we focus on the devolution of resources and relatively little ink is spilt discussing the Bill of Rights.

I can’t help wondering whether we have just struck a grand bargain with our murderous elite. Whether we have not traded in justice for peace and values for prosperity. A laptop for our kids and superhighways, virtual and real –these are today’s struggles. Notions of equality and accountability are so yesterday. The imperialist West with its flaky notions of freedom and human rights and its flailing economies no longer holds any attraction for us. We prefer the hard pragmatists in the East. Our new political model is China. What does it matter if you break a few eggs to bake the national cake? Liberal democracy may sound nice but it won’t put food on the table.

Peace For Our Time

On 30 September 1938, British Prime Minister, Neville Chamberlain, walked the steps of a plane at the Heston Aerodrome in London brandishing a piece of paper, the result of negotiations he had had with the German Chancellor. “I believe this is peace for our time,” he would later say, a phrase he would come to regret. For a world still traumatised by the Great War which had ended just two decades prior, the news of an agreement between the British and the Germans averting another catastrophe was welcome.  “Good man,” US President Franklin Roosevelt telegraphed from the across the Atlantic.

The Munich Agreement would turn out to be nothing more than a temporary stay and within a year the globe would be consumed by an even greater conflict. Three quarters of a century later, Kenyans find themselves at a similarly pivotal moment. Like the British at the time, memories of a recent conflict are still fresh. Like them, our overriding objective is to avoid a repeat. We too have been guilty of selling out the weak in the course of doing so.

Today, all eyes are on the Supreme Court. With bated breath the country awaits its decision on the petitions challenging the outcome of the election. The court’s decision may resolve the question of who becomes the next president of the republic, but like the Munich Agreement, it will only be a balm on a festering wound. It will not address the feelings and emotions tearing at our hearts, the underlying currents rending our national soul.

The fixation with who becomes president is diverting our energies from more fruitful pursuits. More important than who moves into Statehouse after its current tenant vacates is what that person does. And we should give thought to a post-election agenda to tackle the issues that have been highlighted by the election.

The urgent priority must be to begin the process of healing the country following a bruising election. The president, whoever it is, must recognize that half the country voted against him. This is not a time for chest-thumping and claiming wide ranging mandates. It is rather a time to reach out.  Also, there is an urgent need to build bridges between our polarised communities and begin to address the root causes of that polarisation. We cannot afford to spend another five years burying our heads in the sand. Our ignorance has not brought us bliss, and it is unlikely to.

The work of the Truth, Justice and Reconciliation Commission will be crucial to this. The Commission’s report is due out in just over a month’s time and should cover gross violations of human rights, economic crimes, illegal acquisition of public land and the marginalization of communities. That report can form the basis for a national catharsis. For the first time, the country can bare its soul and confront the past. It must be made public and not be hidden like other reports that have gathered dust on the presidential shelf. Victims must be given the opportunity voice to their pain, families to grieve and sinners can seek penitence.

According David Tolbert, president of the International Centre for Transitional Justice, “truth commissions work more effectively when they complement the work of criminal justice, reparations programmes and institutional reform.” If the TJRC will have done a thorough job, and it is hoped that it will, then its report should make for uncomfortable reading for many of our most powerful and long self-serving public officials. The TJRC may not have the power to prosecute, but it can recommend prosecutions, reparations for victims, institutional changes, and amnesty.

The implementation of these recommendations will fall squarely on the incoming administration and its leader must be seen to act quickly and to act comprehensively. It will not do to repeat the pattern of the past with the charade of half-hearted prosecutions. If it is to be a credible exercise, the justice must be real. There must be no return to business as usual. Necessary reforms must be undertaken to prevent future injustice.

If this is done then Kenya will be well on its way to a real recovery. Defending the rights of the weak and the marginalised, not ignoring them, is the true path to a genuine peace.

Church, Jury and Executioner

The nominations of Dr. Willy Mutunga as Chief Justice and Nancy Barasa as his deputy have caused considerable disquiet within the religious community. This week, as Parliament’s Constitution Implementation Oversight Committee (CIOC) started receiving public submissions on the nominations, along with that of Keriako Tobiko for Director of Public Prosecutions, Church representatives were not shy about their reservations.

Bishop Martin Oginde of the Nairobi Pentecostal Church said that though Dr Mutunga was a gentleman, he would be uncomfortable with a Chief Justice who wears a stud. He was appalled by the thought of, as he colourfully put it, “our young men becoming young women” and the prospect of “the highest person in our judicial system expressing themselves in the same way,” by wearing an earring. Mr Peter Waiyaki of the Christian Association took issue with Dr Mutunga’s and Ms Barasa’s support for abortion and same sex relations.

Father Ferdinand Lugonzo, who represented the Kenya Episcopal Conference, perhaps best summarised the church’s position: “We are … raising concerns about the family values that Dr Willy Mutunga stands for. We observed here, that one who has a philosophy that promotes gays and lesbians, aggressive population control, commercial sex work... We emphasize that family principles are not issues of private domain. Marriage and family are ordained by God”

The church’s stand betrays a fundamental misunderstanding about the nature and role of the state in a free and just society. To understand why this is so, we must examine the rationale for government and individual rights.

In their natural condition, all men, just like animals, are absolutely free to do as they wish, guided only by their instincts and conscience. Natural man is a law unto himself, born free and acting free. Sadly the law of the jungle respects only might and does not necessarily foster security or justice. The lamb has no forum to argue its right to life against a hungry lion. In similar manner, the strong, unrestricted by any outside agency, will tend to oppress the weak; the powerful will take from the powerless.

However, by acting together in civil society and binding ourselves to its laws, we pass from the natural state to a civil state, substituting justice for instinct and right for might. Natural independence is given up in favour of civil liberty, the former being guaranteed only by the individual’s might while the latter is guaranteed by the collective power of the community. This arrangement, what 18th century French philosopher Jean Jacques Rousseau referred to as “The Social Contract”, substitutes legal equality for natural inequalities in strength and intelligence evident among men.

We become part of a corporate body politic, a public person made up of the unification of many persons, called the state. The individuals within it are individually known as citizens and they all share equally in the sovereign power and are equally subject to its laws. The state itself is therefore formed for the common good as defined by the general will of the governed. Since the natural, some might say God-given, rights have been relinquished in favour of civil rights, the state now draws its legitimacy not from a higher being, but from its subjects, the people. It is, by definition, secular.

From the above, it is clear that Father Lugonzo is fundamentally wrong when he declares that “family principles are not issues of private domain.” Marriage and family may be ordained by God, but the state does not exist to serve Him. And even when one resorts to the dictum vox populi, vox dei – the voice of the people is the voice of God – there is no relief from having to allow for individual choices that may not be to the liking of the majority. The late US Supreme Court Justice Harry Blackmun said: "A necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices” adding that “we should be especially sensitive to the rights of those whose choices upset the majority”. In this, he was echoing a famous argument by another late Supreme Court Justice Oliver Wendell Holmes Jr. who stated: "If there is any principle … that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate."

The common good being common to all, there is no question of sacrificing one person or group in the interest of another. Rather, since the state is the result of a negotiation by different interests, it is the common points of agreement that constitute common good. The contemporary ethicist, John Rawls, defines it as "certain general conditions that are...equally to everyone's advantage". Common good is thus a confluence of interests, not of moral values or traditions. The latter are important only in as much as they influence an individual’s sense of where his interests lie. At the state level, however, the discussion is only informed by interests. Far from enforcing a moral code, the only thing the state is committed to is the pursuit of common interests through the creation of social systems, institutions, and environments which work in a manner that benefits all persons without elevating the interests of one group over those of another.

The clergy should, therefore, not be allowed to impose its views on the rest of society without, at the very least, being required to show how the common interest is otherwise injured. As John Stuart Mill stated in his 1859 essay, On Liberty: "The only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his own mind and body, the individual is sovereign." We cannot punish or deny opportunities to individuals for making choices, when those choices have no perceptible harm on the rest of us, without demolishing the façade of justice and individual freedom.

The Necessary Enemy of The People

Next week's issue of The EastAfrican will feature a glowing profile of Dr. Willy Mutunga and will be full of praise for the decision by the Judicial Service Commission to nominate him for the post of Chief Justice with Nancy Baraza as his deputy. With both the President and Prime Minister endorsing the two nominees, and with opposition from William Ruto's camp seemingly crumbling, Parliamentary approval appears to be a foregone conclusion. In a few weeks time, all things being constant, Dr. Mutunga will take office and change from being the champion of Kenyans' rights to being an instrument for their suppression.

Now, I have absolutely no reason to think that that Dr. Mutunga is anything other than what the EastAfrican piece will say he is: a fearless advocate for social justice. I have no doubt that he is as committed to uplifting the lives of ordinary Kenyans as anyone can be. My reservations have nothing to do with either his qualifications or his integrity. They, however, have everything to do with the nature of power and the propensity of my countrymen to ignore the lessons of history.

Power corrupts. A simple yet unfailingly true phrase. Kenyan's history is replete with fallen icons, former giants of matchless courage and integrity whose reputations did not survive a sojourn into government. In this pantheon you will find the likes of Mwai Kibaki, Raila Odinga, Martha Karua, Kivutha Kibwana, Anyang' Nyongo, Wangari Maathai, Kiraitu Murungi and Mukhisa Kitui, just to name a few of the most recent examples. By the time they were raptured into government, many of these had fought the good fight, risked life and limb, and endured torture, incarceration, beatings and tear gas, all in the name of upholding the rights of ordinary Kenyans. They inspired us, and brought the despotic government of Daniel Arap Moi to its knees, by the sheer force of their beliefs.

Yet all of them eventually turned into the very oppressors they were once fighting after we put them in power. Which brings me to my second point: Kenyans unrelenting and, frankly, psychotic sense of optimism. Despite all evidence to the contrary, we still persist in the illusion that if we just elect or appoint a nice guy, all will be well and we can look forward to living out the rest of our lives in comfort and luxury. We allow our institutions to rot while we wait for the promised Messiah, our very own Mandela or Ghandhi.

"Eternal vigilance is the price of liberty" is a line familiar to most. What is perhaps less well known are the words that Wendell Phillips uttered following these:"The hand entrusted with power becomes, either from human depravity or esprit de corps, the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot." Phillips was only too well aware that the intrinsic goodness of the powerful could not be the ultimate guarantor of liberties. Similarly Kenyans should put their faith in their own ability to monitor and control the people in office, and not in candidates' records and words.

Now, I am not saying that qualifications, experience and integrity are unimportant. I hold them to be vital. However, like Phillips, I know they are just proof that the man (or woman) can do the job. They are no guarantee that he (or she) will actually do it. Past performance is fickle surety for future returns. Only "continual oversight" will deliver that and it will require that we treat all office bearers, Dr. Mutunga included, as "the necessary enemy of the people." I hope all the good folks applauding our next chief justice will keep this in mind.