In the last two weeks, we have witnessed running battles between an opposition determined to exercise its constitutional right to protest and a police force (yes, police force) determined to deny the exercise of this right at all costs under the guise of maintaining law and order.
With both sides determined to have their way, the outcome has been chaotic mayhem, characterized by arrests of protestors, destruction of property, and the injury and killing of some civilians and police alike.
Although Article 37 of the Constitution guarantees and protects the right of citizens to protest, the police force, clearly acting on the instructions of the Kenya Kwanza government, declared the Azimio La Umoja Coalition protests illegal even before they occurred, on the basis of a statutory law that predates the Constitution, namely the Public Order Act – and which is unconstitutional to the extent that it is a clawback of a fundamental right that the Constitution safeguards.
The right to protest can be exercised peacefully, and the Kenya National Human Rights Commission has developed guidelines that can assist the police to ensure that protests are not a foreboding of disorder. So, why do the police choose not to follow these guidelines?
To answer this question, it is necessary to understand the nature of policing in Kenya and its antipathy towards protests. The police force was established in the colonial era to protect the state, not the citizens. Its rationale is regime maintenance, not providing security for citizens.
Further, our divisive winner-takes-all electoral system has always produced governments that are not secure about their legitimacy. These governments do not want to countenance the possibility of being toppled or undermined, so they readily use the police force to keep dissent in check. The solution to creating an environment where citizens can peacefully exercise their right to protest, therefore, lies in reforming the electoral system to produce legitimate governments.
In turn, legitimate governance will facilitate democratic policing, which has remained elusive despite the promise of the Constitution of 2010 that regime policing would be confined to history and the police would be accountable to the people.
Policing can only achieve its objectives of providing security and maintaining social order if citizens trust the police. But citizens will not trust a police force that is partisan and abuses its powers. Mistrusting citizens will not cooperate with the police, voluntarily give them information, or voluntarily comply with their commands.
The police must therefore restrain themselves and exercise their powers circumspectly and objectively if they want citizens to trust them.
Unfortunately, in Kenya’s case, successive governments have struggled for legitimacy and inclusivity, and have used the police to stifle dissenting voices. From colonial times to date, the police force (or police service as we now call it since the name change in the Constitution of 2010) has not had operational autonomy and has always operated under the umbrella of the Office of the President.
The colonial police force was constructed with the primary goal of maintaining law and order with a view to preserving the privileges of the minority white settlers. In the wake of the clamour by Africans for independence, this force used a strict law-and-order approach and repressive measures to contain the African majority. The independence government embraced this practice of regime policing, and successive governments since then have sought to ensure that the police serve their interests.
As the Constitution of Kenya Review Commission (CKRC) noted in its report, “The lack of independence of the police force and its lack of accountability to the public means the force can easily turn into an instrument of oppression of the opponents of the regime”.
This approach has created an environment in which citizens from communities that are excluded from the regime in power mistrust the police, which they see as an oppressor. This explains why the people told the CKRC that they wanted “police who respect the citizens – and who can be respected by them”.
And so, in making the Constitution of 2010, we sought to change this approach by enhancing the independence of the police force and making it accountable to the citizens. We even changed its name and now called it the “police service”, hoping that this name change would herald a culture change. But there has been no culture change, and the Constitution of 2010 has not enhanced the autonomy and accountability of the police, who remain firmly at the beck and call of the government of the day.
Accordingly, governments will continue to use the police to fight their political battles until we decide to embrace inclusive governance through constitutional reforms.
Indeed, lack of inclusivity is the real issue in the unfolding governance contestation and could become a full-blown crisis if it is not addressed soon. President William Ruto won the August 2022 presidential election by a razor-thin margin, the Independent Electoral and Boundaries Commission (IEBC) having declared that he had obtained some two hundred thousand more votes than Raila Odinga.
Despite the Supreme Court affirming the IEBC’s declaration, Azimio remains unconvinced that the presidential election was free and fair.
“Substantial violation” test
In this respect, a considerable challenge that the Supreme Court faces is that it applies a subjective test in determining whether the conduct of a presidential election “substantially violated” the principles of the Constitution and other written laws on elections. This test is subjective given that whether or not the principles of the Constitution or other laws have been violated will depend on how the Supreme Court perceives it, in the absence of a definition or threshold for what constitutes a “substantial violation”.
In essence, the test calls for the Supreme Court to make a judgment call regarding the seriousness of the violations. This call is extremely difficult to make, given that the Court works under very tight timelines and with only partial information. It is also noteworthy that the IEBC has custody of the bulk of this information, and is often reluctant to share it. In some cases, it outrightly refuses to share it.
In cases where the violations are clear and cast doubt in the mind of the reasonable observer whether an election expressed the electorate's will, the “substantial violation” test may be easy to apply. Invariably, however, the impact or magnitude of the violations will likely be less clear, and the test will be difficult to apply.
This is precisely what happened in the last presidential election. Although the Supreme Court established that there were some irregularities in the conduct of the presidential election, it determined that these irregularities were not substantial, and concluded that the election was credible. Azimio remained unpersuaded, however, and thought that the Court had made a political, not judicial, decision. As far as Azimio is concerned, therefore, the Court’s decision is not legitimate as it does not perceive it to be fair.
This perception of unfairness needs to be seen from the perspective of our winner-takes-all electoral system. The individual that becomes president acquires immense powers and patronage resources. The president remains imperial in many respects and can not only remove individuals from, or prevail upon them, to leave public office, but also appoint his cronies to any public office.
The result is that there is an undue fusion of politics and public administration, which in our context has often contributed to corruption and particularism (or the absence of the rule of law) in governance. In other words, the winner-takes-all electoral system leads to the removal and exclusion of large segments of the citizenry from positions in government.
This explains Azimio’s complaint that Kenya Kwanza has turned Kenya “into a one community regime in which key appointments went only to members of one community” and declared “Kenya a private company in which some Kenyans have shares while others have none”.
Our fundamental problem, therefore, is that we have an electoral system that is used as an instrument of inclusion and exclusion in the sharing of power and participation in governance.
In this environment, we have given the Supreme Court an impossible task, as the losers of close presidential elections will never consider its decisions to be legitimate, and will consequently always seek political solutions after, and in spite of, the Court’s pronouncements. The solution to this conundrum lies in amending the Constitution to embrace inclusive governance, not using the police to bludgeon dissenting voices into submission.
It is clear that the presidential system of government is not suitable for divided (or non-homogenous) societies such as Kenya. As Juan Linz has noted, “presidentialism operates according to the rule of “winner-take-all” – an arrangement that tends to make democratic politics a zero-sum game, with all the potential for conflict such games portend”.
The rigidity of the president’s fixed term in office also means that winners and losers will be “sharply defined for the entire period of the president’s mandate”. The net result is that “the losers must wait at least four of five years without any access to executive power and patronage”. “The zero-sum game in presidential regimes raises the stakes of presidential elections and inevitably exacerbates their attendant tension and polarization”.
Interestingly, in making the Constitution of 2010, the people did not want a presidential system. As the CKRC noted in its report, the people rejected the presidential system because it was “unlikely to assist in overcoming the culture of authoritarianism” and “would retard the effective separation of powers [and] continue to foster ethnic politics”. Instead, the people wanted “a modified form of the parliamentary system” with internal checks in the Executive and a collective form of government that would facilitate coalition-building across ethnic lines”.
Indeed, the parliamentary system of government promises more inclusive governance for our polarized society. There is likely to be better power-sharing in a modified parliamentary system as it will necessitate the formation of broader coalitions among political parties. It will also compel larger parties to be more attentive to the demands of smaller parties if they are to maintain their governing coalitions.
We ended up with a presidential system of government in the Constitution of 2010 because of the machinations of politicians, who ignored our deep desire for an inclusive system of government. Sanity now demands that we urgently revisit this issue and give ourselves a system of government that will unite us.
The Kenya Kwanza government, therefore, needs to take heed of the protests and initiate an inclusive process of reforming our system of government so that it can work for all of us, not just some of us.
