The term "Moral Hazard" has been in use since the 17th century and gained more prominence in the very recent Subprime Mortgage Crisis of 2008. Essentially, this is an economic phrase describing the lack of incentive to guard against risk by a party because the said party is protected from its consequences, e.g., if you keep bailing out banks using public money, they will engage in even riskier behaviour as their irresponsibility has been underwritten by the exchequer. It is time we introduced this phrase in our political discourse. The past week has witnessed drama in our National Assembly as MPs battled each other, literally, to pass the Election Laws (Amendment) Bill, 2016. That the passage of the law was acrimonious is not in question. Our political discourse has been for a very long term adversarial. The bill is now headed to the Senate where again Jubilee has a majority, or a tyranny of numbers, as some would have it. There are no prizes for guessing in which way the Senate will vote. What is of interest to me and expressed in this article is the chorus from the opposition and now the clergy expressing fear that the amendments are a recipe for chaos. I beg to differ. The framework of violence was created by the antagonists of the political class and inadvertently cemented by the negotiators of the IEBC deal. I will explain.
The negotiations were put in play after one party, CORD, chose not to follow the constitutionally mandated resolution processes and sought a mechanism that involved violence, which we euphemistically call ‘peaceful demonstrations’. The Jubilee government chose to accept negotiations as they also had misgivings about some of those who were supervising elections. Integrity aspersions had been cast on one side, posits of innocence provided by commissioners and consensus reached. This was, in every sense, an ephemeral band-aid solution.
Consequently, the situation is proving so. A court decision has been made by a competent judge that at this point, the action taken by Parliament is not a fait accompli and implied that there is still room for other processes to amend or improve the made decision. The court is essentially vacating itself, temporarily, from the political space to allow all players to work in a way that is in tandem with their roles. It also assured the plaintiff, that if constitutional benchmarks were breached, the court had the power to stay or stop the said process. That time, however, was not now. This is arguably, and in my humble opinion, a fitting and valid pronouncement to make at this juncture. The opposition has resorted to the violence card. Why? Because it worked before. Predictably, the usual suspects, read negotiators, have sought to inject themselves in the process of another round of negotiations. To use an oft-repeated phrase, this is where the rain starts beating us.
What are the ramifications of these negotiations injection? It buys us a short term peace. And basically, that’s it. It does not deal with the issue of manufactured mistrust. It does not deal with the flagrant disregard for institutions. It does not contribute to the need for healthy debate. It is used to assuage losers in this debate. And worse, it has now created the moral hazard where political players can ignore constitutionally laid down procedures and dispute resolution mechanisms for political expediency. We are now discussing extents to which we can disregard the constitution. We are now seemingly working to institutionalize negotiators. Kenyans never assumed that political discourse won’t ever be without it’s heightened emotions. Which is why be built in institutions like courts and legislative houses to mediate these processes. Have these processes failed? Of course not. Then why do we have negotiators? I put it to these negotiators: You are abettors of moral hazard in our politics. You have taken our public goodwill and parleyed it to attain a short-term peace. The players have noticed this gap and chose to exploit it.
What would we have expected instead? We are painfully aware of the history of failed systems of elections in our country. We are all certain in our earnest to yearn for a system that will negate the history of electoral fraud. A Biometric Voter Registration system is a culmination of our collective desire. We, however, have to be tempered by the reality of the constitution. Any BVR system will have errors. Whether they are False Rejection or Acceptance rates or Failure to Enrol Rates. They are all qualified limitations of the system to be installed. The minimal constitutional benchmark for inclusion in an election is very high. It is a single adult citizen. Thus, we cannot have an election system that will disenfranchise a single Kenyan. The BVR countenances a scenario where some Kenyans may be disallowed to vote for various reasons. And this scenario is inherent in the system and has little to do with its human applicators. This correction must be made, and in the requisite institutions and not in any external forum.
The opposition has a role to play. I am sure even the most ardent Jubilee MP or senator is not averse to a system or regulations that will qualify and/or limit the use of the BVR generated manual register. It will work for all. However, these amendments must be made in the institutions that are mandated to do this. When one buys a car and does everything necessary to have the car running, he wouldn’t continue asking for a lift because he is unsure if the car will get him to work. He will have to bite the bullet and drive to work. If the car fails along the way, so be it, he will fix it. To our erstwhile helpful negotiators; let Kenyans drive to their destiny.
The Standard Group Plc is a
multi-media organization with investments in media platforms spanning newspaper
print operations, television, radio broadcasting, digital and online services. The
Standard Group is recognized as a leading multi-media house in Kenya with a key
influence in matters of national and international interest.
join