The Situation in Kenya and the Struggle for a Democratic Constitution in Zimbabwe
The Kenyan Cautionary Tale
Since its December 27th General Election, Kenya has been experiencing a wave of political conflicts that should serve as a lesson to Zimbabwe’s pro-democracy movement, as these problems are rooted in the same democratic deficit.
Much of the media coverage on Kenya seems to have been consumed by a focus on the ensuing violence with very marginal efforts to investigate issues at the centre of this conflict: absence of political democratic institutions and the shortfalls of ‘executive’ fundamentalism. With Zimbabwe facing a potential election in March, a look into the Kenyan scenario would be helpful in avoiding a worse repeat. In order to build agency, around a proper constitutional reform process, whose outcome will insulate Zimbabwe from the problems those in Kenya are going through and those experienced in past elections.
Since the Kenyan election, over a thousand people have since lost their lives and 250 000 more have been displaced. As in most post-colonial conflicts, much of these tensions have taken an ugly ethno-tribal character.
According to observers, the elections themselves were held in a manner that can be deemed ‘free and fair’. In the run-up to the vote, all political parties had relative space to organize and campaign. Kenya has a growing free media, and unlike Zimbabwe does not have such notorious legislations as the Public Order Act or the Access to Information Act. The Election Day itself was rather peaceful.
The opposition, Orange Democratic Movement, won majority of the parliamentary seats. The ruling party would be announced as having won the Presidential vote. Problems were then reported in the tallying of the vote, throwing the Mwai Kibaki’s victory into dispute. The Chairperson of the Kenya Electoral Commission has since acknowledged that there was manipulation of the vote.
Independent observers have suggested that the Election was too close. The US Ambassador to Kenya, Michael Rannesberger, is quoted saying whoever won the Election, did so by a margin between 23 000 to 100 000 votes. And that is where part of the problem and why building Constitutional frameworks that harness the spirit of nation building lie.
Kenya like Zimbabwe, has its Lancaster House Constitution, drawn in 1963 as a settlement document when the British colonists were withdrawing from the territory to allow for Kenya’s independence. Consequently, this Constitution, now with its fair share of amendments, has not abhorred well for a transformational state, therefore allowing for dictatorship tendencies to set in. The Daniel Moi regime, would master repression under the shoulder of Constitutional righteousness.
As it relates to Elections, state administration and governance, Kenya has a winner-takes-all/loser-leaves-all electoral system. This system is what we have in Zimbabwe. What this means is that, even if one wins an election by one vote, the opinions of the section of the voters who would have lost will not find political representation or expression. It is a system that excludes ‘losers’ and, as we are learning from Kenya, a base for fuelling other deep seated tensions and questions to do with the legitimacy of the winner as a representative of all interest groups, if voting patterns are also put into consideration.
Its Presidential parliamentary system places more power in the executive, including power to legislate. The executive has a monopoly over national resource distribution, with the legislature being reduced to a powerless club of sessional critics or patronage driven loyalists. With a Constitution that bestows enormous powers on the executive and because there are no constitutional provisions to ensure equitable distribution of the country’s resources, perceived loss of the vote carries a heavy meaning for those who lose. In regions and amongst groups perceived to be less prioritized by the victors, this arrangement fuels anger. It means another five years of being isolated, another five years of exclusion, another five years of poverty.
The disproportionate powers the executive have, including that of legislating, compromises the others arms of government. The legislature and judiciary become overly dependent on the executive, undermining their role to provide for checks and balances. Executive accountability erodes. Corruption and its attendant defense systems set in: with regionalism and identity cleavages taking centre stage in national determination. Regions or communities without a ‘representative’ in power suffer.
Democratic transformation in Kenya, as in Zimbabwe, gained its momentum in the demands for Constitutional reform, with Kibaki defeating Moi on the banner of ‘a people driven Constitution’. Kenyans are yet to see it, two Presidential terms down the line. Most of those in civil society would be absorbed into the luxurious benefits of the State and soon forget the principled demands of institutionalizing democracy, and facilitating the writing down by the people of a framework under which they want to be governed – a Constitution. The disasters are what we are seeing today: those who feel excluded and watching their vote becoming meaningless are resorting to ‘all means necessary’ to reclaim the vote from the gutters. The death toll keeps rising as neighbor turns against neighbor, and identity replaces value in deciding who is a friend or foe.
The primacy of identity politics becomes breeding ground for the most deprived tendencies. It fosters an identity based nationalism which regresses democratic values necessary for nation building. As we have seen in Kenya, the electoral loss/victory soon takes the form of one identity grouping having defeated the other and the nation dividing along ethno-tribal lines. Ethnic identity is now equated with political identity.
Is Zimbabwe the next Kenya?
A similar threat confronts Zimbabwe, risking the negation of genuine national debate on democratic transformation.
Given our history, and the need to foster a common identity in our diversity, a political system and Constitutional framework which allows for this is critical. The incumbent regime has set the country back into the socio-psychology of identity in determining who can participate or not in national discourse. Our white population has been effectively wiped out from being Zimbabwean. Even in the most liberal of opposition spaces, they are regarded with suspicion and are politely censored from making public representation. Zimbabweans of Indian descend or Mixed-race are have been purged from public political participation. Amongst the black population, it has begun to matter whether one is Zezuru, Karanga or Ndebele. As if this is not enough, gender, even within these clusters of divisions, has been so entrenched to qualify exclusion, with our women compatriots having to endure structural abuse to assert the mere fact that they to are citizens.
Human character is secondary in the estimation of man and women. These identities have also informed people’s perceptions of who is excluded or included in the economic, social or political benefit – be they in the patronage of the State, or in civil society and opposition or business.
The violence that is manifest in Kenya, though based on identity, is reflective of failures in the country’s Constitution and institutions to be responsive to the crises of nation building. Many Kenyans have doubts about the validity of country’s Constitution, especially the process under which it was written. This is of relevance to Zimbabwe; where sadly as in the Kenyan case history could be vengefully repeating itself.
The MDC has consistently argued that a new Constitution must be put in place before the elections. Yet it seems to be doing everything to confirm its participation in the electoral process before this key demand has been met. Gabriel Chaibva, spokesperson of one faction of the MDC, in an interview with VOA is categorical about participating in the March elections. Nelson Chamisa, the spokesperson for the other faction, suggested the same in his widely condemned rally speech where he threatens Kenyan style protests should Mugabe do what he knows best: manipulate the vote.
Despite this grandstanding and pontification about a new Constitution, the MDC – in itself a product of the Constitutional movement – does not seem to place value in the importance of a democratic, public participatory process of Constitution making. The Constitution it is fighting for in the talks is a product of ‘four wise men’, determining the permanent fate of 13million of their fellow citizens! The Constitution they are proposing has not been seen or shared by Zimbabweans. Speaking during a visit to the US end last year, leader of one of the factions, Morgan Tsvangirai is quoted in an interview suggesting that ‘we have graduated from process’, in deviation from the principles. Welshman Ncube in his speech to Parliament in support of the widely condemned 18th Constitutional Amendment to the Constitution of Zimbabwe went to depth to explain that the principles of an ‘open, transparent and participatory manner’ in Constitution making were not a ‘fundamentalist decree’.
On the 3rd of January, Morgan Tsvangirai published an opinion piece suggesting that a Transitional Constitution had been finalized, with the sticking point being that of implementation. The nation or even members of the MDC are yet to see it. Our experience has been a bitter one: reforms made in the dark, excluding national dialogue are partly the reason why we are where we are today: a reason for us to be very afraid of the Kenyan ‘demons’ visitation or better still of being ‘kibakised’.
But what is even more frightening, if it is to be believed, is the revelation by Nathaniel Manheru a columnist for government controlled Herald who wrote in last Saturday’s edition that the so called ‘transition’ constitution agreed by Zanu PF and the MDC is nothing more than the 2000 government draft that, lost the referenda.
The South African Model
Model countries such as South Africa do offer learning curves on national reconstruction. Emerging from its brutal past, as the rest of post-colonial Africa, South Africa underwent a process of Constitutional building that pitched public participation at the centre of Constitutional development. Public opinion and debate would take place, with its Constitutional Assembly, civil society and political parties opening the nation to dialogue with itself. What resulted was amongst other things, an electoral and political system that is modestly inclusive, guaranteeing proportional representation, and allowing all views brought to an electoral contest and receiving electoral support, to find a measure of expression.
Greater devolution of power in provinces has and local municipalities have created a system of greater accountability and service delivery. There is freedom of electoral contest and democratic expression. The result has been limited violent contestation of election results and a harmonious existence of political formations and civic groups despite their competing ideologies or perspectives. Those who lose an election will still salvage their proportional representation of the vote.
The National Constitutional Assembly has advocated for a similar system of Constitution making based primarily on the principles of ‘public participation, openness and transparency’. Its 2001 draft addresses some of the key issues of proportional representation and institutions that safe-guard democracy: Electoral Commission, Human Right Commission, Gender Commission etc. The draft also argues for a strong legislature and judiciary and the effective separation of powers between the varying arms of the State. Parliament, elected through a mixed system of constituency based and party-proportional based representation would elect the leader of government who would account to it. This system was drawn out of the views gathered from ordinary Zimbabweans, by both the NCA and the Constitutional Commission. The government draft presented to the referendum in 2000 ignored all these views, and was wisely rejected. In arguing that elections should be deferred until such a time as there is a Constitutional and electoral framework, it aims to pre-empt the possibility of national degeneration.
The Kenyan scenario points to the things we can avoid and toward the importance of working on developing and putting in place structural systems that ensures barbarism and exclusion are not part of our politics and national life. The democracy movement must also learn that short-cuts to freedom lead to spurious regimes and the entrenchment of anti-democratic practices. The MDC, carrying with it the mantle of the nation’s hope for change, must rethink its options. The current opportunism and intellectual laziness that is becoming so pervasive should be stopped and give way to the principled call for a just and free nation.
Tapera Kapuya is with the National Constitutional Assembly. He writes in his personal capacity. He can be reached on kapuyat@gmail.com
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