The High Court in mid-May threw a cat amongst the political pigeons, ruling that a drive by President Uhuru Kenyatta to change the Constitution was illegal. The constitution change bid was fuelled by the political truce between the President and opposition rival Raila Odinga following the divisive 2017 election. That truce produced the Building Bridges Initiative (BBI), billed by Uhuru and Raila as a project to end violent winner-take-all politics.
The Supreme Court had upended its politics on September 1, 2017, nullifying Uhuru’s re-election weeks earlier in August and ordering a new vote to be held within 60 days. The decision landed like a bomb in Kenya and, indeed Africa, as it was the first time on the continent a court had nullified the re-election of a sitting president.
The May ruling wasn’t a bomb but a grenade. Now, the two sides are in the Appellate Court, battling it out. Both parties are charged, but in it all there is something beautiful, and indicative of an important evolution in African democracy.
The case was brought by a group of activists, not a traditional opposition party. It was one of a wider basket of cases that have been brought by private citizens and activists against the Uhuru government, most of which the state has lost.
Kenya probably has more citizen-initiated legal actions aimed at constraining the state than any other country in Africa, with South Africa a poor second. That’s the result of very specific incentives — the Judiciary has grown a level of independence, where winning a case against power (both state, Big Business and the wider Establishment) is quite high.
Judges are not as terrified of the president, ministers, generals, and the rich as in most of Africa, and the rest of the world. For that, the Kenyan courts also hand out their fair share of rogue judgments.
It’s that space where judges don’t ask the President how high they should jump, where independent society is the one taking the fight to power, that interests us. We talk of democratic countries, which in Africa means the rituals of reasonably fair elections are played out every few years, the legal political opposition gets some privileges, and the state does not always act arbitrarily against citizens.
Continuous growth
What is happening in Kenya, and its modern roots can be traced to circa 1992, when one-party rule was defeated by a motley of pro-democracy groups, is that there has been a continuous growth of a “democratic society”. Most times, you need the wider country to be democratic, but sometimes you can have the emergence of a democratic society in an authoritarian context, as happened in Czechoslovakia in the late 1980s under the Civic Forum led by dissident Vaclav Havel, or Poland in the same period with the Lech Walesa-led Solidarity movement. You can have the rise of anti-democratic society in a democratic country, as vividly demonstrated during Donald Trump’s presidency in the US.
How does this democratic society look like? It is what you get when you have a critical mass of citizens acting independently, sometimes in strategically opportunistic alliance with professional political parties, to make claims against the state (to end discrimination) or to stop it from actions they consider harmful (selling a forest to be cut down by a farming company). The democratic society can develop its own set of organising ideas different from traditional political society’s.
Equally important, it needs some dissent from the state and political society, the sprouting of a maverick and independent streak in institutions like the courts and state bureaucracy, and rise of an autonomous business sector that is not narrowly wedded to state contracts and patronage.
That leaves a difficult question: How does a democratic society emerge? We can hazard a guess. It’s not linear. In Kenya and elsewhere in Africa, educating more people helps a lot. Knowledge improves agency. You need economic expansion of some sort, from which this society can make a living without being subservient to the state. However, economic misery, unemployment and corruption also help by making people angry, hence more malleable to being mobilised against state power.
In Kenya, urbanisation has helped. When people are still too tied to the village back home and have too many loyalties to clan, family and the elders, they are not very good at seeking autonomy. And you need infrastructure, roads that carry people and ideas far, opening new horizons. And, as the court battles over BBI and the history of Kenya’s democracy struggle have taught us, you need some clever lawyers around. BY DAILY NATION