Kenya’s political eclipse; Part III

The Supreme Court of Kenya is where democracy goes to die. Its ruling in 2022 giving the IEBC the legal fiat to rig elections will live in infamy. The last institution that could have saved Kenya’s democratic experiment has not performed as expected.

 By Makau Mutua   Professor at SUNY Buffalo Law School and Chair of the KHRC.

This Sunday in my series on Kenya’s Political Eclipse, I focus on the end of Kenya’s experiment with the democratic project. At some point as a country and people, we have to look each in the eye and have an honest conversation. We have to say the things that are difficult to say. We must mean what we say, and say what we mean. We can’t – and shouldn’t – keep lying to each other with a straight face.

At least I can’t, and won’t. We have become a nation of liars. And the biggest lie we have been telling each is that we are a democracy. I am sorry boys and girls – we aren’t a democracy. We are a kleptocracy.

        I have been a student of law and politics my entire adult life. I have lived for extensive periods in four countries – Kenya, Tanzania, Italy, and the United States. I’ve spent most of my adult life in the last of these four – the US. Apart from book learning and teaching, I have observed first-hand – and participated – in four diverse political cultures. Everyone knows the torturous route that the US – the world’s most successful democratic state – has travelled in history.

        Its most demonic moments are unspeakable. So we know the democratic project isn’t easy. But what I learnt and witnessed from the front row in the 2022 Kenyan General Election was enough to kill me a thousand times. 

Let me tell you why Kenya isn’t a democracy, and why we may never become one. A democracy is a state in which the values and tenets of liberalism – equality, equity, the rule of law, liberty, freedom, autonomy, separation of powers and checks and balances – are used to create a society of economic and social opportunity for all.

        The end result must be the happiness of the largest majority of the people. Such a society must reduce powerlessness for most of its people. It must curb political and economic despotism. The praxis of democracy must be internalised by large swathes of the elite and the hoi polloi in norms, processes, and institutions. It must become second nature in citizens.

        A democratic society and culture produce a prototype of a human being who is philosophically and by sensibility powered by its values. It’s a society generally of empathy, not antipathy. A society that’s bounded by redlines on the limits of State power. Where officials go into government to serve the people, not the other way around. And where the people don’t expect officials to be masters, but servants – not looters of public coffers, but stewards of the people’s purse.

Mutual cannibalisation

If you look at all these indices of democracy, you can’t argue with any credulity that any – a single one of them – is present in the Kenyan zeitgeist. Ours is a voracious culture of mutual cannibalisation and the crudest of materialism.It wasn’t always this way and doesn’t have to stay this way. I remember a time when Kenyans had a softer heart and an Ubuntu sensibility. But those days are long gone. In my view, we have entered the “door of no return” in our politics. We have become savage beasts in human form.

        Most Kenyans get whatever they can get no matter the cost to the next guy or the society. Our political elite aspires to state power, not for any other reason but to steal from us. If you listen to UDA’s Rigathi Gachagua, or his boss William Ruto, you know what I mean. Their disdain for citizens who will not cave to them is gargantuan. 

        Importantly, Kenya’s democracy has died because of the calibre of leaders and the corruptible nature of the institutions that are central to it. Key among these is the Independent Electoral and Boundaries Commission (IEBC). That institution is rotten through and through to its innermost core. Most senior officials who have worked in it – and its predecessors – are some of the most corrupt Kenyans alive or dead. The IEBC in the last election was a feeding trough for the most piggish officials. The truth is Kenyans know this and yet go along with the theft.

        Today, some Kenyans tell me Azimio should’ve been a smarter thief than UDA. They believe you must steal elections to win, or you are the fool. Lastly, one cannot discuss the death of Kenya’s democratic experiment without defrocking the intellectual and moral midgets at the Supreme Court. The Supreme Court of Kenya is where democracy goes to die. In spite of the David Maraga Court in 2017 which made history by calling out the theft – a clear aberration – the Supreme Court is possibly public enemy number one.

        Its ruling in 2022 giving the IEBC the legal fiat to rig elections will live in infamy. The last institution that could have saved Kenya’s democratic experiment has not performed as expected. That’s why I say without equivocation that Kenya’s democratic experiment is buried – entombed – at the Supreme Court.

Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. @makaumutua.

Source: Sunday Nation tomorrow.