Kenya’s fake democracy Part II


A woman casts her ballot at Dandora Secondary School polling station in Nairobi during Kenya's General Election on August 9, 2022. According to Makau Mutua, the electoral agency has historically “murdered” the democratic spirit of Kenyans for the benefit of a small bankrupt political elite.

Photo credit: File | AFP

As a result, they normalise and internalise the complex of inferiority, which breeds self-bigotry and low expectations of those who rule, or govern, them. This isn’t to say that Black people don’t have agency, or haven’t resisted oppression.

They do – every second. But against great odds. Today, I want to isolate the national electoral agency in Kenya to show how it has historically “murdered” the democratic spirit of Kenyans for the benefit of a small bankrupt political elite.

That story was repeated most recently on August 9, 2022. It’s a “curse”.

Some time back, Dr David Ndii, a leading Kenyan economist who’s now playing key roles in the Kenya Kwanza state, wrote a column in this paper provocatively entitled “Kenya is a Cruel Marriage, It’s Time We talk Divorce.”

Dr Ndii is no one’s fool. He knew exactly what he was saying. He eloquently argued that even with the 2010 Constitution, Kenya had failed to create a national Zeitgeist and to become a nation. Rather, elites from the Kikuyu and the Kalenjin had marginalised all others, especially the Luo Nation.

He advised the Luo and other aggrieved groups to secede from Kenya. He called for the Yugoslav solution – each group to pick up its marbles and become a separate state.

In 1995, as an emerging scholar, I wrote what’s a now a widely-quoted 63-page article in the renown Michigan Journal of International Law.

The article was entitled “Why Redraw the Map of Africa: A Moral and Legal Inquiry.” In it, I argued that most African states were incoherent, unviable, and failing concoctions of Empire.

I said many of them would never cohere into functional states. My view hasn’t changed. Little did I know that Dr Ndii would decades later agree with me.

For Kenya, I go between hope and despair. I still think there’s some little hope left, but the window is closing. In this series on democracy, I argue today that the electoral agency is our biggest threat.

I have said before that only two elections have ever reflected the will of the electorate – 1963 and 2002. All others, including the one done this year, have been shambolic affairs.

I know supporters of Kenya Kwanza are celebrating, and those in Azimio are incredulous. But both groups are not at ease.

Those in KK are waiting for the other shoe to drop for they fear that their “victory” is pyrrhic. Those in Azimio are stumped as they wonder whether they are still Kenyans, or indeed whether there is still a country called Kenya they can believe in.

Both camps know that the Independent Electoral and Boundaries Commission (IEBC) and it chair Wafula Chebukati did not acquit themselves of their mandate. They delivered a skunk.

In elections, there’s no more important institution than the electoral agency that plans, conducts, and declares the results. In some countries – such as the United States – such sacred task isn’t given to a single monopoly like the IEBC.

No one body should be allowed to play God with the franchise, especially in deeply corrupt countries like Kenya. In America, elections at all levels – presidential, senatorial, congressional, gubernatorial, and local – are completely decentralised.

Ordinary citizens, usually retirees who are volunteers, are key players in conducting elections. They oversee the balloting, the counting, and the declaration of results at the polling station – and their verdict is final. The common people play God, not a national bureaucrat.

In Kenya, the history of elections is littered with the political corpses of election commission chairs and their fellow commissioners. None has ever come out unscathed.

Most are reviled villains and crooks. Let’s think of the more recent ones. Samuel Kivuitu will forever be remembered as the fellow whose decision to declare PNU’s Mwai Kibaki the victor in 2007 in a stolen election brought Kenya within an inch of a genocidal war.

Isaack Hassan, the inaugural IEBC chair, left it in infamy after the disputed – many believe stolen -- 2013 elections.

Then there’s Mr Chebukati, the ogre of Kenyan democracy, who presided over the 2017 annulled elections and the 2022 shambolic vote. Kenya’s democracy dies at the altar of the IEBC.

The IEBC is the key author of Kenya’s fake democracy. This is the question – will Kenyans continue to pretend that they have a democracy and a credible agency and process for vindicating it? Or will “victors” steal again and again until the nations within Kenya’s borders declare a divorce, and walk away from the republic?

I have seen dozens of African countries collapse, many never to recover. Do we want Kenya to go there? Because no one can force Kenyans to live together. No one. At what point will Kenyans say enough to living the lie? When will they talk divorce?

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


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