Petitions: Why fixing political problems using courts is not a smart idea

IEBC lawyers file a response to the presidential petition in which Azimio la Umoja has challenged the win of Kenya Kwanza candidate President-elect William Ruto. [David Gichuru, Standard]

Obviously, my grouse from last week’s article (No matter, the outcome from Supreme Court, we are all losers) - the mixed prospects a litigated democracy pose to our society elicited good debate.

Make no mistake, it is not by accident that we have the legal route as a means to resolving contested electoral outcomes. The alternative, as we saw in 2007, is chaos and violence. As we saw in 2013, a litigation at the apex court diffused the tension and ensured the country got back on its feet faster. But to what end is this pursuit of electoral justice through the court system? The underlying issues not necessarily contained in the petition - of votes as a means to alter and change the Social Contract remain unaddressed. The taunts of “accept and move on” still ring in my mind.

Whatever the outcome then on September 5, is the country ready for another moment of “accept and move on”?

A friend, reacting to the article, put it aptly; “what we have in Kenya is a political, not a legal problem.” For as we saw in 2013 and 2017, legal solutions only aggravate the acrimony and serves to postpone the inherent (political) problem. A Supreme Court ruling it turned out, is a tricky instrument.

It didn’t bring the “alienated” – those who feel let down and discriminated against- back into fold. In fact, it created more schisms. Worst still, it did not mute the ruinous political competition experienced every electoral cycle; nor did it drain away the hatred, the chronic partisanship, the cronyism, the anger and the deep-seated tribalism and nepotism that defines our politics.

And it did not diminish the stakes in political contests.

Those favoured by the outcome from the Supreme Court turned the ruling into an avenue for bad politics and braggadocio, rebuking the losing side as good-for-nothing. Things like unemployment, poverty and inequality from lack of opportunity were driven below the surface where they festered.

And hence the lingering questions about the real import of March 2018 handshake. Besides getting good insurance to “do development”, of what use was the handshake between President Uhuru Kenyatta and Raila Odinga if not to ensure clean and transparent elections that ensures the country moves on after hard fought electoral contests?

The abiding legacy of the “handshake” is not that it brought enlightenment to our politics rather that it entrenched impunity and corruption. The myth of “Deep State” in control, lulled sections of the country and political class into believing that all was well. They simply ignored or forgot to agitate the much-needed reforms like strengthening critical institutions that underpin our democracy including the Judiciary and the criminal justice system, political parties and the Legislature. Neither did it ensure that media operated unhindered or that the civil society agitated without encumbrance from the State. None at all.

The handshake brought to the fore the consequences of abuse of trust in political relationships. The least spoken betrayal (besides that between President Kenyatta and his deputy William Ruto) is that between the former NASA principals (recall the call from a Nigerian line?). It is such that five years after the acclaimed rapprochement between two former fierce political rivals, our politics remain a race to the bottom.

In their 2018 book, How democracies die, Harvard University political scientists Steven Levitsky and Daniel Ziblatt write about how elected leaders can gradually subvert the democratic process. In many ways, the book is an abnegation of the Donald Trump presidency and what he represents.

The overriding message from the book is that democracy thrives where there is compromise and consensus; compromise requires trust and honesty. Most of the petitions – and social media chatter - highlight the chronic absence of trust in people, processes and outcomes. A huge handicap in our society.

With trust, striking compromises and building consensus enables democracy to function well. It is what John Stuart Mill, a 19th century English philosopher and a key proponent of representative government, had in mind.

According to the two scholars, “tolerance involves accepting the results of a free and fair election” – especially when the Opposition has won. With trust, it becomes easy to propose how to make things work better next time. I am afraid there is a long way to travel to gain mutual trust. And so, we are all losers partly because of the reasons above and much more.

Mr Kipkemboi is Partnerships and Special Projects Editor, Standard Group

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