Monday, February 12, 2018


The Washington Post, in its banner, declare that "democracy dies in darkness". How cute. The modern history of the world, with its nations, theocracies and monarchies, has been one in which the people invited the end of democracy and the birth of dictatorship, among other illiberal forms of government. It is why it is amusing to see the largely ineffectual freakout among Kenya's chattering classes over the events of the past month. Everyone and his cat (well, everyone that is not a card-carrying member of the Jubilation) is suddenly an expert on "media" freedom, citizenship, "dual" citizenship, "high" treason, due process, "court orders", habeas corpus, freedom of assembly and of movement, public international law, the Vienna Convention on Diplomatic Relations, et cetera, and all because Raila Odinga took an oath to serve as the "people's" president.

Constitutional rights and freedoms, no matter how much we repeat that they are not granted by the State, are meaningless if the constitutional norms that underpin their enjoyment and protection are ignored by the majority of the people. We may have a good constitution in our hands; whether we are good constitutionalists remains (to my mind) highly contested. I am constantly surprised at the extent many of us will go to repudiate constitutional principles if it will stymie our rivals' plans and promote ours.

For instance, Article 27 (1) declares grandiosely that every person is equal before the law and has the right to equal protection and equal benefit of the law. This constitutional right is meaningless if we do not apply the principle of the rule of law, wherein parties to a dispute are treated in the same way by the courts and where the orders, decrees and judgments of the courts are obeyed without question. In Kenya, Article 27 (1) is mocked every day that the courts treat the wealthy differently than they treat the poor; where the courts almost always defer to State agents and turn a deaf ear to private parties; where the State privileges the comfort and safety of State officers while leaving private citizens to fend for themselves; and where some parties enjoy the luxury, nay right, to ignore unfavourable court orders without facing any sanction from any quarter.

That we, "the people", have largely accepted this state of affairs, by using violations of the principle as cudgels to batter our rivals while ignoring our own violations, is proven by how the recent violations of the principle have elicited yowls of protest from Oppositionists, shrugged shoulders from Jubilationists and a cast-iron guarantee that State officials like the Cabinet Secretary for the Interior, the Inspector-General of Police, the Director of Immigration and the Attorney-General will not be answering difficult questions about court orders from judges or magistrates any time soon.

We, "the people", have done nothing to disabuse these people as to the folly of watering down the meaning and import of constitutional norms. Instead, we spend more time arguing about absolutely stupid ideas like "benevolent dictatorship". Democracies don't die in darkness. They die in the full light of day when people find excuse after excuse to not do the hard work of building, nourishing, sustaining, deepening and defending a democracy. In Kenya, we have heard all the excuses: we are too poor; we were not ready for Uhuru; it is the fault of the colonial government; tribalism is to blame; neoliberal policies have destroyed social safety nets; terrorism is an existential step and we must deal with it first; we are too corrupt. 

Dozens more excuses have been made save the one that truly matters: while we have written and amended constitutions and laws, build and destroyed public institutions, and elected and deposed governments, we have not inculcated constitutionalism in the fabric of public life. Instead, we have favoured cults of personality based on class wealth, tribal superiority complexes and the instant gratification that political and economic corruption engenders for an elite few. Worse still we have no interest in inculcating constitutionalism in the fabric of public live. It's too hard; it's too expensive; we are not ready; we are too corrupt. After fifty-five years, we have become adept at making excuses.

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