Here’s Kenya’s more beautiful side
The Kenya 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 amendment 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.
Kenya’s Supreme Court had upended its politics on September 1, 2017, nullifying the re-election of Uhuru 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 High Court ruling wasn’t a bomb, but it was a grenade. Now the two sides are in the Appeals Court, battling it out. The partisans on both sides of the duel 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 to constrain the state than any other country in Africa, with South Africa a poor second. That in turn is the result of very specific incentives – warts and all, the Kenyan 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 rich people as they are in most of Africa, and the rest of the world. Precisely because of that, the Kenyan courts also hand out their fair share of rogue judgements.
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.
What is happening in Kenya, and it’s modern roots can be traced back to about 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 itself 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. By the same token, you can have the rise of anti-democratic society in a democratic country, as was 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, and sometimes in strategically opportunistic alliance with professional political parties, to make claims against the state (to end discrimination against groups of people), or to stop it from actions that they consider harmful (selling a forest to be cut down by a farming company). The democratic society will have the ability to develop its own set of organising ideas different from those of traditional political society.
Equally important, it needs a degree of dissent from the state and political society from some of the actors (the splits in the ruling Jubilee, the Orange Democratic Movement, and other parties), the sprouting of a maverick and independent streak in institutions like the courts and state bureaucracy, and the rise of an autonomous business sector that is not narrowly wedded to state contracts and patronage.
That leaves a difficult question: we see what that democratic society looks like, but how does it 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, corruption, also help by making people angry and therefore more malleable to being mobilised against state power.
In Kenya, urbanisation has helped a lot. 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 in Kenya, and the history of the country’s democracy struggle have taught us, you need some clever lawyers around.
