Democratic rule of law dismantles game of autocratic ethnic politics

By Ndung’u Wainaina

There is self-preservation ethnic-driven realignment in the political landscape. This majoritarian ethnic nationalism politics shows the country’s social relations are far from being national social values.

Individual citizens pay allegiance to their ethnic leader and not to nation-statehood project. Kenya at 50 is still searching for a new socio-political order.

The realisation of this noble objective is impossible due to the dominance of ethnicity and immature political system. This is threatening constitutionalism and establishment of progressive leadership.

This stampede has five lessons: civilian rule based on ethnic nationalism is autocratic and does not guarantee democracy; political transition is precarious with many structural issues unresolved; proper connection between democracy and development is not established; and the country desperately needs visionary committed and responsive leadership.

This rolling calamity of pervasive ethnic politics shows state of legitimacy crisis. It proves weakness of alternative trustworthy policy platforms.

Further, it exposes State inability to act as an effective agency of distributive justice. This is worsened by a diabolical electoral system that is exclusive, lacks accountability and has made development of democratic political culture a hard task. Ethnic loyalty is devouring nation’s dream of democratic governance.

Reckless ethnic political power struggle inspired and driven by ethnically inclined leaders and political formation portend demise of Second Constitutional Republic.

The nation needs a purposeful ethical leadership. Leadership built around people and serving country’s interests. It has to recognise and respect diversity of the country treating all communities as citizens with equal rights.

For some time now, I have been advocating through my articles, for the strengthening of public democratic governance and building democratic institutions, propagating strong human rights and rule of law culture, and tackling human security concerns of the people.

This is consistent with my desire for constructive open public policy dialogues on the issues affecting ordinary people daily. These issues relate to fairness by consideration of societal impacts, citizen engagement in the governance decision-making processes, embodiment of decisions in legal authority and fair enforcement, transparency and accountability of the participating institutions and political establishment.

The ethnic virus coupled with inequalities and exclusion is a major cause of social crisis and political instability in Kenya. In the just concluded UN General Assembly, a declaration reaffirming “rule of law as the foundation for building equitable state relations and just societies” was adopted for the first time ever.

As this declaration stipulated, if you want to avert a crisis, the rule of law will require measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

The Assembly codified rule of law as “central to overcoming many of the developmental challenges currently facing many countries in the world”. The challenge is following up on the commitments Kenya made, generate momentum and continue to give high profile to rule of law as an essential foundation for a better future.

We have to avoid creating the veneer of the rule of law based on the institutionalisation of injustice since rule of law without human rights is only an “empty shell”.

I have to emphasise that democracy is not possible without security and that security without rule of law is hollow. Therefore, achieving this requires political will, resources, and time to repair and build institutions and develop the rules of democratic society.

We have to establish strong, inclusive and accountable institutions, which demonstrate equitable application of the rule of law. These institutions were identified by the UN General Assembly as “crucial for conflict prevention and the consolidation of post-conflict peace building gains”.

The rule of law enables citizens to invest in their own futures and exercise their rights. It enables Government to govern better, respond to emerging challenges and advance human development. The effective use of the rule of law is dependent on ethical leadership based on certain core values, principles, vision and integrity.

Rule of law abhors arbitrariness, unreasonableness and mala fide exercise of power. Where rule of law and ethical leadership prevails, State delivers high levels of security, respect freedoms and human rights, nurture strong institutions, provide quality educational and health services, strengthen effective infrastructure, bolster an economic framework conducive to growth and prosperity, offer an atmosphere in which civil society can flourish, and regulate the environment for the benefit of all. Leaders who thrive in bending rules and or cutting corners are a disgrace to the principles of the rule of law.

The Constitution ushered in a new era of respect for the rule of law. A country governed by rule of law deploys strong penalties for corruption as it “mortal enemy” of democratic rule. For a society traumatised with violence and gross violations of human rights, nothing is more critical than establishing the rule of law, which requires commitment from the national government for it to thrive.

We need a national enforceable integrated justice and justice framework that drive rule of law. It must have clear goals with benchmarks to measure progress and an ongoing consultative forum to check, sustain and bolster State’s political will over time.

It will remain a pipedream to achieve millennium development goals if we do not embrace rule of law, value human rights, equity and economic freedom. It is not surprising that governing institutions, which do not enable the rule of law, become a target of citizen grievances. Establishing and strengthening the rule of law is a long-term endeavour. It requires sustained and proactive partnerships and investments. Short-term responses often result in failure.

The writer is Executive Director, International Centre for Policy and Conflict

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Democratic rule of law constitutionalism participation in decision-making national social values.