Friday, April 5, 2013



P. Anyang' Nyong'o
7th. April, 2013

Since the rather surprising announcement by the Supreme Court judges on the disputed presidential elections, a substantial number of the Kenyan people sank into depression. 

A man committed suicide in Migori County. Another Digo man called me from Ukunda in Kwale County wondering whether it was still worth retaining his voting card. 

A young lady from Nyeri came to my office saying she needed some money to board a matatu and go to Naivasha where the governors are meeting: she wanted to go and encourage them to defend devolution with all their might. "After all," she argued, "this is the only level of government which now interests me." Let us give this lady a place to feel at home in the county of her choice.

If that be so, then Kenyans should all be aware that the constitution says quite clearly that "the sovereign power under this Constitution is delegated to the following state organs, which shall perform their functions in accordance with this Constitution-
(a) Parliament and the legislative assemblies in the county governments;
(b) the national executive and the executive structures in the county governments; and
(c) the Judiciary and Independent Tribunals.

And further, that "The sovereign power of the people is exercised at-
(a) the national level, and
(b) the county level."

So we have two levels of government within the state of Kenya, each one of which must complement the other within the framework of the constitution. 

The current division among Kenyans following yet another electoral debacle is obviously unhealthy, and has already led to the feeling by the aggrieved that they need to seek refuge into the counties since executive power of the national government has twice been illegitimately constituted. 

The so-called victors have, in the meantime, opened war against the counties, justifying it under the winner-take-all mentality which will remain a grave danger to any present and future nation-building initiatives. So what do we do?

Last Sunday I proposed a parliamentary system of government, proportional representation and compulsory voting of all over 18 as a practical solution to both our electoral problem and nation building crisis. This debate should be carried out so that sooner rather than later a referendum can be held for Kenyans to pronounce their stand on it. 

Today, however, I want to tackle the current problem: the top dog/under dog mentality that has emerged in this country because of a bad electoral system which allows those in power to use state apparatus to mess up with the electoral process in order to produce predetermined results. Whether we like it or not, this is what has led us to the crises in Presidential elections every time they have been held since independence.

The true test of a democratic election is that, when it is over, the victors should celebrate their victory while the losers accept the outcome as legitimate. For this to happen, the electoral process itself must be credible, acceptable, transparent and not subject to any manipulation by any party.

The depression that has hit the over five million voters for the petitioners in the recent election comes from the fact that they cannot accept the outcome as legitimate since there were glaring pitfalls in the process, more than obvious manipulation of the vote tallying to predetermine the outcome and an unconvincing explanation by the judges as to why they came to their conclusion. What makes the depression so profound is the abuse of the tremendous faith Kenyans had placed in the two institutions: the IEBC and the Supreme Court.

The result is a search for a refuge which is currently expressed by an urge to withdraw into the county, the other level of government, where one might feel at home having been disappointed by things at the top. These are real and tangible human reactions which we should not wish away if we are still committed to the Kenyan nation-building project. My proposal is the following.

One, let us not pretend that all is well at the top; and that Kenyans are prepared to "move on". The nation is probably divided currently into two equally powerful social forces. The "movers on" group celebrating the assumption of power by the Jubilee Alliance; and the "wait, let's solve the problem" group deeply hurt by the electoral debacle. 

Can you possibly build a nation while ignoring this deep division among us? My take is that you cannot. While the Bomas process brought us the new constitution with tremendous gains like devolution, another process is now necessary to take us beyond the authoritarian presidency--the love of which leads us to such divisions--to a people's democracy through which the nation will be built.

Two, let us accept that as long as such deep divisions exist in our society, development will remain elusive. We may achieve tremendous economic growth with sky scrapers donning the skyline of our cities, but we will not have the human souls to integrate these human achievements with human joy and happiness. I am already seeing it in public places where people don't really socialize; they spend more time scrutinizing their surroundings before they can settle down to socialize in some way. This is obviously not healthy: it smells of a creeping neo-fascist culture.

Development will remain elusive because development entails people believing and trusting in institutions of governance, and then being inspired to action for the national good. 

In democratic societies, such institutions derive their terms of reference from the constitution and approved public policy. In the case of the Supreme Court, the following is its public policy for delivering justice in line with Pillar numbers One and Two of the Judiciary Transformation Framework, 2012-2016:

"The constitution guarantees equal protection of the law for everyone. It therefore demands that justice must be done to all irrespective of status. It also demands that all state organs must assure access to justice for all persons...These twin constitutional demands...require that justice be delivered expeditiously and without regard to technicalities."

To what extent have the justices been faithful to their declared public policy? The pain of seeking an answer to this question is the cause of serious depression currently among Kenyans and the fear of their loss of faith in institutions key to the Kenyan nation building project such as the Supreme Court.