The new Jubilee regime has a serious legitimacy challenge to address. In political science, legitimacy is recognition of authority by the governed. In 2006, Prof Tom Tyler of Yale University published a book titled Why People Obey the Law. A more radical approach could as well have titled this book Why People Don’t Obey the Law. The bottom line is legitimacy. People comply and cooperate with power because they recognise the ruler. Can those who boycott what they consider a bad election recognise the person said to be elected?
If we participate in the process that puts you in office, you are legitimate, even if we voted against you. If we boycott the voting because we think it is flawed, you have legitimacy challenges. We don’t feel obliged to obey you. Prof Tyler draws a clear distinction between legitimacy and legality. The class that exercises political power in Kenya may want to read Tyler. It may also want to read such other luminary scholars as Allen Buchanan, Russell Hardin and Richard Flathman, among others.
There is a wide berth between the legality and legitimacy. Within the framework of this distinction, we may ask, “Is Uhuru Kenyatta’s present term of office legal? Is it legitimate?” Tyler would say that as far as laws and formalisms go, “it is legal.” However, as far as acceptance that is the general will goes, the legitimacy is questionable. Legality, as another great scholar, called Max Weber, demonstrated many years ago, is about norms and forms. If an individual ascends to the throne through legal motions, you cannot question the “legal status” of his authority. To that extent, Kenyatta is legal. Yet, is he legit?
History has taught us that authorities need to justify themselves by more than legalisms. They need legitimacy – quite often more than they need formalisms and legalisms. For “legitimacy is a belief held by individuals about the rightfulness of a rule or a ruler.”
If significant swathes of the population are not persuaded about an individual’s right to exercise power over them, then the individual suffers a serious legitimacy deficit. We speak of “an illegitimate regime” or “illegitimate authority” not because the authority hasn’t walked through the motions of the law, but rather because a massive population can’t accept it. This rejection should not be conflated with a portion of the population not voting for you. If your attitude, words and style leave some people feeling you are the ruler of only a portion of the population, then you have no legitimacy before them.
Suba MP John Mbadi, was on Thursday ejected from the chamber for saying, “Kenya has no president.” This was despite the fact that Kenyatta was sworn in on December 2. A visibly agitated Speaker, JBN Muturi spoke with great restraint as he ordered Mbadi out. NASA has refused to recognise Kenyatta as President. Unfortunately for Kenyatta, legitimacy is not imposed. It works very much like respect. You can force people to fear you. However, you cannot force them to respect you. Likewise, legitimacy is a voluntary belief in your authority.
You cannot force me to believe that you are my president. That belief is my private opinion. When African leadership has failed to get citizens to recognise it, it has usually resorted to force and bribery. Aspects of the law may be invoked to crush or silence detractors. Such a leader, therefore, steadily gravitates towards dictatorship. Prof Tyler has argued, “If authorities are not viewed as legitimate, social regulation is more difficult and costly.” The man in power feels insecure. He is unhappy because of rejection. He must, therefore, crack the whip. Yet in cracking the whip, he only widens his rejection.
Such is the dilemma confronting Kenyatta. He told the Jamhuri Day parade that he intends to use the instruments of power that President Kibaki passed to him on April 9, 2013. One was the Constitution. The other one was the military sword of command. For avoidance of doubt, Kenyatta said that he was putting his detractors on notice. They are not above the law, he said. He will, accordingly, clamp down on them. Regrettably, Buchanan has told us that provided that citizens perceive their governments as illegitimate, there will be social unrest. Kenyatta’s proposed clampdown can only, therefore, lurch the country from one crisis to another.
Arising from this scenario, Kenyatta has yet another challenge. The international system expects some basic benchmark of justice and human rights in order to recognise a regime’s legitimacy. Crackdowns on citizens who don’t recognise you will lead to consternation and disapproval on the international scene. Even regimes that have had pretexts of a popular mandate will soon find themselves isolated on the global platform. Kenyatta is cast between the devil and the deep sea. Yes, he has fulfilled the formalisms and legalisms of ascending to office for a second term. Yet there are millions of citizens out there who simply will not accept him. They feel cheated about the process that has given him the mantle. They rejected it as flawed. They cannot, therefore, understand why he should be called their president.
On the other extreme are people who are culturally of the same affinity with Kenyatta, or his deputy. These ones don’t really care about those who question their government’s legitimacy. The doubters can go to hell, for all they care. Now, this is a perfect divided Manichean society. The two camps will soon eat up one another. Even as he digs in and displays impatient might and bravado, Kenyatta should know that all is not well. The empty stadiums across the country on Jamhuri Day are telling him something frightful – your legitimacy is in doubt. So what will you do about it?
- Mr Muluka is a Strategic Public Communications Adviser. [email protected]