The importance of strong institutions that can protect individual liberties

Last week’s events that took place in the political arena in Kenya and the US have inadvertently helped us to understand governance from different angles. They were also a clear reminder of the importance of having strong government institutions not only in enhancing democracy but also in ensuring systems run according to the rule of law.

First was the insurrection in the United States of America (USA) and then our political leadership that revealed how tribe should be at the center of determining who leads the country. Last was the warning by retired Chief the Justice David Maraga that his colleagues should not allow politicians to interfere with the Judiciary.

Looking at the US insurrection, I must say it was unfortunate that people lost their lives but the events served as an important lesson on how institutions should build sustainable democracies.

It is worth noting that when President Donald Trump tried to persuade individual states to change the election results, he failed. In his last bid to force Congress through protests, he failed again. On the other hand, the Judiciary rebuffed President Trump and his allies from overturning the electoral outcome. A comment by President-elect Joe Biden, that “Democracy prevailed", is a clear demonstration that the institutions in the US withstood the test of their resilience.

And although the judiciary at Federal level is largely controlled by Republicans appointed by Trump, because of the strength of the institution, they firmly refused to be partisan in the 60 lawsuits filed by a sitting President.

Africa's weakness

This was the point that Justice Maraga was emphasising at his retirement ceremony but very few paid any attention, including the governed. In the process of discharging professional services, good judges must always remember to fear for their reputations and blame for the damage that arises from their decisions.

The practice of sacrificing professionalism for political expedience is Africa’s Achilles' heel. This has affected many people in most countries where their voices, even if in opposition of wrong government policies, are never heard.

Indeed, there would be no need to come up with experimental leadership designs like our proposed constitutional changes, which presuppose that there should be no loser. Yet, the effectiveness of political competition is the ability to execute the agenda that created the difference between winning and losing.

The world over, the problem with political competition rarely lies with the electorate. More often than not, it is in the character of the candidate, election officials and the judiciary which makes the difference between peace and chaos. In most elections, there are fragrant lies (winner-takes-all is the source of our problems). There are also the distortions of political processes, which in most cases see the electoral body being changed before election. Still, there is the manipulation of voters where people are being marginalised and perceptions of politically motivated adjudications.

Lessons from US

There are lessons we can learn from the US. Even though President Trump did a stellar job of manipulating his constituency by creating fear and hoping that the judicial process would favour him, the electoral college and the judiciary remained firm according to their oath of office.

If truly we want to effectively deal with Africa’s perennial problems with electoral processes, we need to stop experimenting with non-existent political systems and solve problems that are glaring in most African countries.

In Kenya for example, the Independent Electoral and Boundaries Commission (IEBC) is not fully constituted and the politicians are seeking to dismantle it barely a year before the next election cycle. In other words, the political class want a new team without the benefit of institutional memory. Failure to have in place an adequately prepared electoral body is nothing but a distortion of the electoral process. Therefore, it should never surprise anyone if a perception of incompetence is not created by the losers.

Just as the narrative of focusing on constituting a new electoral body early enough to have a credible election has rarely been addressed, there is now a distraction narrative which is focusing on tribe and leadership. And those propagating the tribal agenda know very well that it will be an impossibility to put in place a rotational presidency as in Switzerland, where the seat of power rotates among the seven councilors from each canton on a yearly basis.

But if this narrative is taken seriously, it would mean a massive change to the current constitutional order. And this might affect the county governance structure by creating time for each governor to lead the country within the five-year term.

Different generation

The discourse on shifting the leadership of the country towards tribal lines may be another diversionary strategy. 

It is however, important for politicians to understand that the majority of Generation Z have moved on from tribal labels and indeed some are of a mixed tribe heritage.

A lack of traditions that can determine which tribal persuasion one belongs to has helped to shape Africa's future. The generation in power today can help build a better future by building strong institutions that can withstand an attack on democracy.

Even if the general population does not understand the rule of law as expected, those with constitutional responsibility must uphold the oaths of their offices.

The events in the US have given the world a chance to understand the importance of strong institutions that can protect our individual liberties.

They highlight the need for countries to work towards building resilient institutions that can exert their constitutional independence to protect democracy and the lives of their people.