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A Government of the Corporates, by the Corporates and for the Corporates

Shadrack Muyesu

When plunder becomes a way of life for a group of men living together in a society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it. Frederic Bastiat

The philosophy

Thanks to its ability to satisfy man’s primary want which William Hegel first taught to be the need for recognition, liberal democracy has been widely accepted as the pinnacle of human socio- economic intelligence. In his acclaimed treatise, The End of History and the Last Man, Francis Fukuyama has even labeled it the end of history. But if this recognition extends beyond mere feelings of self-worth and the right to participate in government to economic fulfillment, Liberal Democracy is not a better system of government than those that preceded it.  From its definition, one could argue that it never even existed. By separating economy and polity and confining democracy to the latter, what is understood as liberal democracy would better be referred to as a plutocracy.

Liberal Democracy may be defined as a system of government that allows majority rule yet accepts and protects minority opinion. It is anchored on the three pillars of universal suffrage, the rule of law and free market. The existence of a public participation dictate and a bill of rights that protects among others civil, political and property rights makes ours a liberal democratic government. While civil and political rights guarantee free, fair and regular elections and ensure equality before the law, property rights protect individual assets and investments from state or otherwise expropriation and largely allow a free market economy.

From the outset we can notice a separation: Property rights existing for the benefit of the minority propertied class and civil and political rights existing especially for the rest of society. Depending on the economic philosophy of a country and the control the propertied elite have over the instruments of power, liberal democracy easily degenerates to the class dictatorship of plutocracy. And could this be the end that L.D’s founding fathers in fact hoped for?

As a concept for masters, Liberal democracy becomes easier to appreciate when we trace back its origins to the economic and political repressions of the United States. The US Constitution is perhaps the original and most accurate manifestation of L.D. It was written by primarily a propertied elite, most of them slave owners, who were concerned about the threat a national wave of freedom posed to their wealth and power in the late 18th century. The constitution was the culmination of a physical and ideological endeavor to calm the threat and prevent future unrest. That the founding fathers relegated slave interests to secondary concerns is clear demonstration of their bias for elitism, never mind their stated preference for equality.

To the extent that it kept most happy, liberal democracy was a resounding success. Relative peace returned to the midlands, the economy soared thanks to a Jefferson inspired agrarian revolution and class differences blurred (on the face of it) with wage increase and a new system of rights. But this peace wouldn’t last long, not with the dawn of the age of industrial capitalism. To protect the top, it was imperative a new intellectualism favoring far right elitist views be created and consistently cultivated. Classical economy was almost immediately replaced by neo classical economics and its pioneers like Henry George and Adam Smith grossly misinterpreted so as to fit into the new order or simply declared de facto mad men. Gradually, liberal democracy became a best practice over society tailored governments and legal positivism took over naturalism.

As mentioned earlier, a plutocracy is a class dictatorship. It preaches socialism for the business elite while confining capitalism to the bottom. In this system, although the elite possess and control a country’s instruments of power- the money supply, the law and the law enforcement agencies- it is the bottom that funds it through taxes. This can be observed from a keen interrogation of the law, the law making process and the economic as well as the education system of a country. The importance of the law in a plutocracy is to justify the dictatorship. Education is to brainwash the masses into accepting the system as a truth. Law enforcement is to prevent an uprising while the money puppeteers the system. All these while giving the masses an illusion of control.

Classical vs. Neo classical economy

Classical economy is built on a distinction between the factors of production- land, capital and labour. Maximum benefit is only achieved through the maximum exploitation of these factors to give rent, interest and wages respectively. In classical economy, land is regarded as a common heritage of mankind whose rewards, just like oxygen and water, ought to be enjoyed by all. It is therefore important in this system, that land use be taxed. By the mandatory investment of the proceeds of land taxation in a government driven expenditure on public goods like schools, roads and hospitals, even those not in possession of land get to benefit from its use. Because land is God given, and to sustain this system, interests in land are limited to leaseholds- which interest persists only on the condition that it is used optimally and productively. Moreover, to enhance equality and satisfy man’s need for appreciation yet maintain competition of capitalism, classical economy favours taxes on consumption and demands that workers own the industries in which they work.

This philosophy has now been relegated to the archives. In its place is a new neo classical economic model that classifies land as capital and promotes taxation on production. Unlike classical economy, land can be held on freehold, which introduces other toxic interests such as ownership by selling and speculation. Privatization also allows the owners to manipulate the factors of production in their favor. For instance, by owning land and whatever is on it, they make it a scarce resource driving the cost of capital upwards and bringing down wages. Taxes can also be avoided tax by inflating the cost of production.

Neo classical economy is built on predictability- cause and effect and the idea that factors outside the market influence demand and supply and therefore prices, interests and wages. This allows the propertied class to maintain the balance in their favor whilst blaming it on outside forces. Take wages for instance. Although interests increase every day with companies making absurd profits, wages have stayed a consistent low because, according to neo classical economy, population increases faster than capital. And this is just not true.

On government, liberal democracy has become the benchmark to the extent that societies are now either adjudged liberal and democratic or authoritarian. L.D with its capitalism has now become the standard with societies, on their own or at the behest of established free societies, striving towards this system. Even where they acknowledge the inability of certain societies to successfully domesticate L.D principles and the success many countries have achieved pursuing alternative forms of government, its proponents maintain it as a goal these countries must endeavor to achieve. The basis of this argument is as argued by Hegel and Louis Henkin, that guaranteeing human rights must take priority over providing public goods. Fukuyama even argues that while liberal democracy might be slow on development; it is the best guarantor of any development. Because of this, the art of constitution and government making is now no more than a fishing exercise for good practices. Many years later, the principle of government autochthony- the requirement that governments must conform to the societies they govern and not the other way round- remains an emerging idea.

On legal philosophy, the prominence of rights and secularism, constitutionalism and the rule of law as defined by Baron De Montesquieu has left mankind with a law without morals. This has provided the basis for cut- throat competition and returned us to the Hobbesian anarchy law and government are supposed to have delivered us from. Such a system is only good for one section- the elites, those who own and want to consolidate the means of production.

Unfortunately, Thanks to graduate training and an elite controlled media, the obvious is now obscured, silenced and denied. Denial is reinforced by dominant figures using sophisticated, pedantic logic which students learn to ape in order to distinguish themselves from their peers and advance their careers. Talk about economy and government today is impossible without endorsing their myths.

Perhaps in demonstration

In the United States, arguably the world’s foremost liberal democracy, income for the top 1% has soared over the last 30 years while that of the middle class has remained relatively constant. Specifically, according to CNN Money this group earns an average of $1.3 million a year which is more than three times as much as they did in the 1980s where they only made $428,000. The bottom half meanwhile, took home, on average, $16,000 in pre- tax income 1980- which figure hasn’t changed since. Another research by Pew Research shows most Americans believing that the economic system unfairly favors the wealthy. Ironically, as if to endorse the system, 60% of them believe that anyone people can make it as long as they work hard. It’s the “American dream”.

Consider also the resilience of the largest lenders and the telecoms in the wake of the economic depression. In Kenya, banks continued to make insane profits while the government and citizens fell deeper into debt. And this is especially curious considering the difficulty of securing credit from local lenders. Elsewhere, data shows bank profits remained at a constant relative high throughout the great depression. If anything, it was the other financial institutions such as insurance firms and investment banks that bore the brunt of the collapse. Not the banks- the large banks. In fact, bank profits have been shown to remain unaffected by changes in GDP growth.  So, just how do banks make their money?

The banks

Like many big corporations, banks thrive on speculation- except that they control the system or at worst, benefit from insider knowledge which makes theirs anything but it.

In times of tranquility, banks will push money into the system. This will bring down the cost of borrowing hence allowing more people to take up loans. Gradually, they will push interest rates upwards. This in turn pushes the cost of borrowing upwards leaving people struggling to pay back their loans. As more people struggle to pay up, banks will take possession of the real wealth, the land and the assets offered as collateral. Anticipating a market crash due to the high rate of defaulters, established lenders will then insure themselves by dumping the bad loans in trade-offs. Unaware of the looming crisis, the smaller institutions will readily take up these loans viewing them as an opportunity to eat into the big banks. And when the market eventually collapses, it is these big lenders that benefit from a bailout- thanks to the Central Bank and against citizens’ wishes- never mind that they didn’t make any losses. With new money, these large banks will then buy off the competition on the cheap further entrenching their position.

A bank is not the benevolent creature which accepts deposits to issue out as loans with some interest as has been bandied around. A bank is a monster. It siphons real wealth from the economy while giving nothing in return. In doing this, they create money, they don’t lend it. Consider this.

A fundamental principle of classic economy is the idea that all money ought to be pegged on a certain standard of value. This principle held sway in the years preceding the industrial revolution and the bank renaissance in the England and later the US where all money was pegged to a gold standard. Simply, what was considered as money were paper receipts that banks issued to clients representing the gold they held in their accounts.  The large circulation of these receipts resulted in their eventual acceptance as legal tender pushing banks to issue out even more receipts (notes). The notes soon lost their value and the markets plummeted.

To solve this crisis, the English crown moved in to take the money making function away from the private banks and make it a preserve of the Central Bank. The Central Bank would now keep all the gold, this time represented by silver and copper coins, and issue out notes (real money) to various banks representing the value in these reserves. And it was a good thing, except that no one anticipated the dawn of an electronic money age or the possibility (which existed even then) that the Central Bank such as the Federal Reserve could be privately owned. That age has come. In the UK alone more than 95% of the money in circulation is electronic money with transactions carried out on a mobile platform. This allows banks to create fiat money (money not pegged to any standard, air money) through issuing loans, just like the old times. The value of this new money rises when banking costs and interests are factored in.

There is a ratio of real money, Central Bank issued money, that is in circulation. In England this ratio is 4%.  Private Banks are expected to maintain a certain amount of this money as core capital. It is from this money that they meet small demands. Ideally, every time a borrower borrows, a bank ought to remove from its core capital and other deposits and give the borrower in exchange for real wealth such as land and capital as collateral. However, in this new electronic age where demand far outweighs supply, banks will credit the borrower’s account with fiat money instead. The money lost is topped up by other real money deposits thus maintaining the core. To offset his loan, the borrower will withdraw real money from another bank in effect reducing its core capital and raising that of the borrower bank. He could also get real money from non-bank sources such as home savings to top up the core capital of the borrower bank.

Banks also accept real wealth such as land and capital as collateral for their loans. As a result, the value of these factors will sky without any resultant productivity. These will be possessed by the bank in case of a default. Either way the borrower bank profits while the ratio of real money in the system remains unchanged.

The easy money banks make is invested, not in growing wealth as classical economy would have it, but in speculation. This drives the cost of housing upwards leading to an increase in the cost of living and therefore an increase too in the rate of defaults. Eventually the system crashes (usually, after the large lenders have exited the system as explained above).

To this into perspective are the words of Paul tucker (deputy governor of the bank of England as he was then) writing in the Bank of England Quarterly Bulletin 2007 Q3/ Vol 47/ no 3, that

“By farthest role in creating money is played by the banking sector”

And those by Prof. Richard Werner, an economic industry stalwart, that

“Banks create money, they do not lend it. When a bank gives out money, it pretends that you have deposited the money…it has to invent liability…this is how the money supply is created.”

Law to protect the top

Because an economy is financed by debt (fiat money) government usually has no option but to bail out banks when markets crash. Otherwise there will be riots. Money for bailouts comes from citizen taxes. When it gets to the bank, depositors only recover their deposits to a certain amount- ksh300,000 in Kenya vide the Kenya Deposit Insurance Act. Everything else is lost. More so, the law on winding up and bankruptcy demands that preference shareholders be settled first and in totality, never mind that these shareholders, as has been demonstrated, are often the cause of the collapse.

Corporate veiling ensures that shareholders are rarely held accountable for any liability arising out of their companies’ activities. But most curious perhaps is how it’s the industry players who are charged with regulation. It’s no wonder therefore, that entities such the Federal Reserve so readily endorse bailouts and reductions in interest rates or that auditors often miss a looming crisis. All these serve to lure the trusting borrower and start the circle afresh.

Legal tax avoidance, protectionism for top industries and a proportionate corporate tax are also ways in which the legal system is rigged in favor of the top.

Neo classical economists often invoke trickle-down economics to justify the money at the top. Unfortunately by the time the money is getting to the bottom it usually has lost its value because those who had the money first spend it on the same basket of goods which drives costs upwards. It’s like the bottom is working for free!

 

Finally, thanks to lobbying, plutocracy has totally supplanted the idea of citizen sovereignty. Legislators no longer represent the will of the people who elected them rather, corporate interests and those of other interest groups. Recent study reveals that in the US alone, for every congressman there are five lobbyists, each representing a corporate. The same study reveals that the biggest companies have an excess of 100 lobbyists representing them spending almost 35 times more than public interest groups! Through bribes, blackmail, threats, leveraging and trading favours, the corporates almost always have their way!

The people that control the system are the shareholders in these entities and the faces behind them. Ultimately control can be traced down to a handful of dynasties. Taking advantage of the resources at their disposal, these financial elites manipulate democracy in their favour.  As Smedley Darlington Butler, for a long time America’s most decorated marine, reveals in his book “War is a Racket” and as Martin Meredith concurs in “The State of Africa”, they sponsor governments to manufacture crisis for their profit. There is no end to crisis because behind every crisis is a profit motive.

 

 

 

 

 

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Did judge err in allowing IEBC to conduct party primaries? Mugambi Imanyara & Another vs. Attorney General & 5 Others

Published in http://nairobilawmonthly.com/index.php/2017/03/31/did-judge-err-in-allowing-iebc-to-conduct-party-primaries/

March 31, 2017

By Shadrack Muyesu

Through a petition (No. 399 of 2016), lawyer Gitobu Imanyara moved to court to challenge the constitutionality or otherwise of the provisions of Section 10 (2) of The Elections (Amendments) Act, 2016. This section provides, “The Commission shall, upon the request of a political party, conduct and supervise the nomination of candidates by the political party for presidential, parliamentary or county elections in accordance with Article 88 of the Constitution.”

The petitioner also sought orders on the Constitutionality or otherwise of financing political party primaries from the exchequer, the Constitutionality or otherwise of the time frames set for the necessary preparations for the elections – that is, party primaries,as well as the apparent failure to factor in the process of resolving disputes arising from party primaries, and whether or not the timelines laid down under The Elections (Amendments) Act, 2016 may lead to a candidate being denied the Constitutionally guaranteed right to participate in an election.

In his ruling, delivered on February 16, 2017, Mativo J., sitting at the High Court, ruled that the Independent Electoral and Boundaries Commission (IEBC), while free to conduct party primaries, should not do so with funding from the exchequer or using public funds. He also ruled that, while the nomination period could disfranchise would-be candidates in the limited time available for the resolutions of disputes arising after the primaries, there was nothing in the law barring political parties from undertaking their primaries sufficiently early to enable IEBC to effectively carry on the election process.

My bone of contention lies with the former, which gives rise to the following questions: Did the good judge err in law in determining that the Commission’s mandate to oversee party primaries extends to conducting these primaries? Does the ruling create a likelihood of bias in dispute resolution, thereby flying off the handle of the rule of law, presumption of justice and separation of powers?

The problem can be debated either way. Walter Ochieng’ Khobe, a constitutional expert, agrees that nothing in the Constitution explicitly bars the IEBC from conducting such a poll and the Constitution envisages that by law the role in any other elections can be conferred.

Lawyer Charles Kanjama similarly agrees; in fact, his only contention is that the judge should have been more detailed. Kanjama takes us back to the substantial three-judge judgment in Kethi Kilonzo vs. IEBC which dealt with IEBC’s constitutional power to both deal with (conduct/supervise) nominations then deal with disputes emerging therefrom, without violating rule against bias. As an example, he reminds us that the legal power of IEBC to conduct “any other elections as prescribed by an Act of Parliament” [Art 88(4)] has been used for other elections including by the LSK. For him, nominations of candidates by political parties can take various forms, including selection by an interview panel, competitive elections, etc. Where competitive elections are used, art 38(2)(b) and 38(3)(c) read with art 88(4) and the IEBC Act allow IEBC’S engagement

However for Khobe – and Dr Munabi Okubasu, a lecturer at the Kabarak School of Law) a more structured argument would be that that there are other provisions of the Constitution that envisage fairness in adjudication and thus where IEBC has a role in the adjudication then it cannot be involved in such elections. It is this view that I shall adopt in demonstrating that the judge was in fact in error.

In arriving at his ruling, the judge addressed himself to the fundamentals of constitutional interpretation and sought to distinguish them from those guiding statutory interpretations. It was his concerted opinion that constitutions are documents sui generis to be interpreted according to principles suitable to their particular character, and not necessarily according to the ordinary rules and presumptions of statutory interpretation. He couldn’t be more correct.

Interpretation

Statutes demand a stricter approach. They are prima facie constitutional with the will of the Legislature taking pre-eminence over other principles. As he observed, the starting point of interpreting a statute is the language itself. In the absence of an expressed legislative intention to the contrary, the language must ordinarily be taken as conclusive.

Against this background, Article 88 (4) of the Constitution, which provides that the “The Commission is responsible for conducting for supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—   (d) the regulation of the process by which parties nominate candidates for elections;  (e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results…” —was, according to him, clear and unambiguous. But is it?

“…and any other elections as prescribed in an act of parliament and, in particular, for — (d) the regulation of the process by which parties nominate candidates for elections” should be considered in harmony with the rest of the Constitution and in context— by the pristine principle of noscitur a sociis, which the judge seems to be well aware of. How he quickly disfavours this route for a literal approach is therefore quite surprising. Though literal construction takes a prima facie preference in constitutional interpretation, to arrive at the real meaning, it is always necessary, to get an exact conception of the aim, scope and object of the whole constitution.

Quoting the distinguished Professor and then President of the Supreme Court of Israel, Aharon Barak, David Feldman in Statutory Interpretation and Constitutional Legislation writes, unlike statutes which thrive on legislative intent and are much more straightforward, constitutional provisions are like parables, or morality tales. They tell a story about the state, paint a picture of its unity, and try to stimulate loyalty to it: and while they appear descriptive, in reality they present the State as the drafters would like it to be, not as it was and is. Therefore, no matter how straightforward its articles may seem, judges must resist the temptation of the easy acceptable route of literal definition.

In this case, the intent of the constitution makers surely cannot be deciphered from reading of article 88 alone. We must consider an interpretation that promotes the values, purposes and principles of the Constitution, favours good governance, and advances the rule of law and human rights.

As Mugambi Imanyara rightly argued, which was also the petitioners question in Kethi Kilonzo (supra), since the Commission is also mandated to hear and determine disputes arising from the nominations, it cannot competently resolve disputes arising from a process it has presided. There is a looming question of bias, which jeopardizes the right to fair hearing and the rule of law.

Judicial activism?

Yet, the biggest problem with the judge’s interpretation of Article 88 is that it throws it (the article) into direct conflict with other articles of the Constitution particularly the right to fair hearing in Article 50 (1), the values and principles of governance under article 10, 159 (2)(e), and the Preamble, which recognises the essential values of the rule of law and human rights as bases of the Constitution.

This brings into question the Constitutionality of Article 88. The unconstitutionality of an article of the Constitution is a rarity that can only arise from one of two happenings. It can either be as a result of procedural flaw in its creation through amendment (see the dictum of Justice Kato in Rwanyarare and Haj Badru Wegulo vs. Attorney General, Constitutional petition No. 5 of 1999), or because it goes against the grain of constitutional values and principles upon which the Constitution is built— what were severally referred to as superior constitutional norms in Kesavanada Bharati vs. State of Kerala and Anr.

Curiously, the good judge disregards any of these possibilities in magnifying the problem to be that of the unconstitutionality of the entire Constitution instead. He then ventures into a long discourse on the improbability of unconstitutional constitutions— a matter that was not before the court in the first place!

In conclusion, while text remains an important strand in legal interpretation, Interpreters must consider it in the light of constitutional principles, including prohibition of arbitrariness. Only then can a sensible, workable outcome to a dispute that is consistent with a legislative text be realised.

Assessing impact of the party-hopping provision in the Elections Law (Amendment) Bill, 2016

published in http://nairobilawmonthly.com/index.php/2016/10/04/assessing-impact-of-the-party-hopping-provision-in-the-elections-law-amendment-bill-2016

Shadrack Muyesu

Political parties have pushed and passed The Elections Law (Amendment) Bill, 2016 which bars party hopping. The celebration is that the new law will ideologize political parties whilst cementing party faithfulness. But how constitutional is the new law? How practical are its provisions? Will it really attain its purpose of coherence in political parties post nominations?

Beyond what has been put out there, questions abound as regards the true intentions of the new law. Indeed, that parliament only passed it after intense lobbying and arm-twisting by respective party hierarchies suggests that the bill could have been nothing more than an aggressive attempt to consolidate party support ahead of the 2017 elections. Theories regardless, the banning party hopping is not the way to ideologize political parties.

While it can be sufficiently influenced, political morality cannot be legislated. It is the natural gift of a democracy that has evolved overtime to maturity. The political morality of any democracy is directly proportionate to its demography and socio economic development (Fukuyama, Lipset et al). To coerce it through legislation while society remains highly stratified, politically illiterate and predominantly rural is akin to coloring a house which stands on a fickle foundation.

One of the most celebrated provisions of the new law is the extension of IEBC’s mandate, at the instance of the individual party, to overseeing party nominations (clause 10). Major factions have taken advantage of this to all but confirm that their nominations will be carried out by the IEBC. Where many would see fairness and decorum instilled into a historically chaotic process, some might argue that inviting the IEBC doesn’t guarantee fairness after all. Lest we forget, such services are to be paid for by the inviting party. Is it therefore improbable to presume that the Commission could be biased in their selection if only to please the true clients- the money paying party hierarchy?

The 90 days to elections ceiling (before which an aspirant must have declared his election vehicle- either as an independent or as the legal nominee of a party) makes participation in IEBC supervised primaries a do or die affair for most candidates (clauses 9& 11). For reasons raised above or otherwise, cases of dissatisfaction are bound to sky rocket with failing aspirants pursuing legal redress with a never- seen- before vigor. The High Court is likely to be overwhelmed with the petitions challenging the Commission’s ability to fairly determine cases where it’s the principle accused (the mandate of the commission to nominations as under section 5 of the IEBC Act 2011). Envisaging the likely scenario where most parties will conduct their primaries just months to the elections, it remains to be seen what the Court will offer in redress without diluting the litigants’ right to fair hearing or seemingly acting in vain.

Even if the courts somehow wriggled out of this conundrum, the competence and integrity of the IEBC would have been severely damaged. So close to the elections and with zero recovery time, this would set the stage for another post election crisis.

And this raises other questions, does the IEBC even have the capacity to carry out rigorous nominations for all these parties then pilot the elections- especially where they are to take place back to back? The stakes involved and the new found penetration of especially the two leading factions makes their nominations grand affairs. Granted the parties will pay, but what of personnel and infrastructure? Will the same election officials be used or will fresh recruitment be required especially in places where one faction doesn’t enjoy the support of the other hence doesn’t see the need to conduct primaries? Will these officials be vetted? Will party A be comfortable with the officiating of officials who conducted party B’s nominations in party B stronghold? If the reverse holds true doesn’t this open elections to external manipulation? Will the officials be locally recruited…infrastructure transported since let’s face it, most parties remain supremely regional? Will the commission be able to withstand the onslaught that follows?

Part hopping as a right

To the not so small matter of rights and freedoms, article 38 of the constitution of Kenya 2010 grants every citizen the right to make political choices. The right to form and participate in the affairs of a political party is unlimited except to the extent that one is a citizen. Article 36 grants every person the freedom to form, join and participate in the affairs of an association of any kind. It denounces compulsion to join any association. Article 33 grants the freedom of expression. Alongside the limitations contemplated under article 33 (2) rights and freedoms may only be limited as under article 24 and even then, where the state is the limiting agency, it is required to demonstrate sufficient cause as to why it seeks any limitation before the courts. It must show the importance and purpose of the limitation as well as demonstrate the absence of less restrictive means by which it could achieve its purpose.

As the paragraphs above have attempted to highlight, the absence of a clear dispute resolution regime to address nomination disputes vis a vis the important place of political parties in our society (politics) and the dire consequences of an unfair loss at nominations provide strong argument as to why the amendment on party hopping should be passed unconstitutional. The clamor to ideolagize political parties shouldn’t be pursued at the sacrifice of the freedom of association and the rights of access to justice, fair administrative action other political rights under article 38 among others.

Article 91 is clear on the basic requirements of political parties so is section 7 of the Political Parties Act and the import of the larger chapter 6 of the Constitution. Ideology is not one of them. If ideologizing parties was an honest intention the proper thing would have been to clearly amend an ideological requirement into the constitution and the latent acts without limiting freedoms.

 

Why “developed” will remain a dream: The script we all seem to be missing

previously posted on http://nairobilawmonthly.com/index.php/2016/06/30/why-developed-will-remain-a-dream-the-script-we-all-seem-to-be-missing/

By Shadrack Muyesu

The most economically developed states are those that best mirror the peculiarities of liberal democracy. It’s no coincidence, therefore, that the world’s oldest democracies are also the most developed (with “gas states” the only ones defying this rule).

While myriad reasons are given in explanation of this phenomenon, history is unanimous that liberal democracy as a precursor to economic development is slow and therefore not best for application where quick development is required. Even then, the net success of liberal democracy varies depending on the nature of the society. As Fukuyama, Lipton and many others argue, maximum benefit from liberal democracy can only be enjoyed where the society is predominantly urban and educated as opposed to being multilayered cultural.

If any quick development is to be achieved in the latter societies, it has to be coerced. To this end alone, history is awash with stellar examples.

Kenya prides itself with being a robust liberal democracy. What many fail to understand is that this democracy is destined to fail since, as I argued earlier, it is not anchored on the key pillars of education and cultural unity. On this premise alone, it wouldn’t be farfetched to assume that liberal democracy cannot be used as a catalyst to spur our own economic development. The market needs to be coerced, after which urbanization and democracy follow, with complete economic development coming thereafter.

Sadly, our vision 2030 economic blueprint seems to defy this course. Liberal democracy and basic industrialisation are cited as primary wants upon such basics as food security, education and clean water will be delivered. The planners must have reasoned that the extensive cyclic effects of initial industrial investment will be enough to spur further industrialisation while providing capital for the payment of social goods. They couldn’t be more wrong!

Restricted democracy

The starting point for Kenya should have been at worst, an autocracy or, at best, a restricted democracy which allows the Executive to play a greater direct role in policy making. As I argued in my last article, it is only in such a system that agriculture can be fully harnessed through increasing production quotas, reducing imports and consumer subsidies while multiplying savings. Though many may argue that autocracies, and to an extent, restricted democracies hamper foreign direct investment, I should emphasise that coercion can still exist within a capitalist society, as long as it’s not the kind that limits free competition (e.g. consumer subsidies which are so common in Kenya) but rather one that squeezes the agriculture so as to maximise production and promote savings.

Agricultural investment

With a legal and government framework in place, public spending should have then been focused on agriculture. Not only would agricultural spending address food security (the primary concern for city dwellers) by maximising agricultural exports; it would also provide core capital required to kick start initial industrialisation. Factually, transition to “developed” should only be paid for by agriculture. Borrowing should only be pursued as a last resort and not as an integral financer as our blueprint seems to suggest.

Technical education, urbanisation

Since industrial societies require a high number of skilled workers, education should have naturally been the next area of focus. The importance of education cannot be overstated. Bryce James observed (while also affirming the development stages) that it is education that qualifies people for democracy while introducing them to industrialisation, which produces middle-class societies in the long run.

Sociologist Seymour Martin Lipset has observed, and I concur, that education is one of the most important indices of a developed country. However, careful distinction has to be drawn between the focus of education in developed industrial states and education in industrial start-ups or low-economic jurisdictions. Applying himself to this distinction, Francis Fukuyama noted that education in the late states should be emphasised on technical application as opposed to social skills. It’s upon social sciences that nations are conceptualised.

Hierarchy of needs

Technical skills come in when these concepts need to be applied before social sciences regain prominence in sustaining the already established state. This cycle is premised upon the complexities of an enlightened industrialised state, which only democracy can only cure (that such a society can only perpetuate itself within a democratic environment makes keeping everyone happy a primary concern hence the need for, according to Talcott Parsons, social curatives).

Basically, the need for non industrial skills, such as financial management, law and other human dealings, increases gradually with the systematic development of society. Why? Not only do people in industrialised jurisdictions have a greater awareness of their rights, but with industrialisation also comes a surplus which needs to be managed through savings or investment in diverse portfolio. Lastly, industrialisation increases multilateral trade and therefore conflict, hence the need for diplomatic and international trade expertise. It is important to understand that simple societies such as ours are in less need of these social skills. For a long time now, the best way of making use of the runaway surplus of these social and economic “goods” has been to export them or resign to losing them anyway through brain drain. The government needed to invest in incubation centres aimed at nurturing scientific talent and innovation for, without a large established and specialised human resource, industrialisation cannot be achieved.

Liberal democracy and development

Another key benefit of education, which is often overlooked, is its ability to downplay the importance of socio-cultural economic sacreds such as land. An educated population naturally migrates from the rural areas so as to take advantage of the city’s economies of scale, its consumer culture, diversity and the blue collar engagements it has to offer.

Technical qualification also creates a need for enabling factors necessary for research. Such factors are almost always only found in the cities. Most importantly however, education sows the seeds of democracy and informed rationalism. Not only does it make people more difficult to manipulate, it also invokes innovation whilst teaching people to harness other energies as opposed to over-relying on subsistence farming. As an economy gradually picks, agriculture becomes more large scale and commercialised, with land being left to those who use it best.

Diversification and market liberalisation are the natural result of an urban state where most of the people are engaged in private commercial practice. Such a society could only be more capitalistic and truly democratic.

These arguments are not made in blue. In his landmark 1958 article, Lipset (a celebrated sociologist) demonstrated a very startling empirical correlation that existed between a country’s level of economic development and other economic indicators such as education, urbanisation and democracy. According to him, the more educated a country was, the more urbanised and democratic it became. If I should interpret Lipset, though education sows the seeds of democracy and rationalism, it is urbanisation that strengthens them; it makes them grow!

And Fukuyama agrees when he notes that, in traditional peasant societies such as Kenya, it is possible for the landlord to “recruit peasants to kill other peasants so as to dispose them of their land”. These peasants obey these orders because, Fukuyama says, they are used to obeying authority. In contrast, he notes, while they can be recruited for anything else urban professionals in developed countries cannot certainly be picked for death squads simply because they were commanded to do so!

Conclusion

Fukuyama’s percept is that as society becomes more democratised, it becomes more developed. Yet again, he does not discount that as society becomes more developed, it becomes more democratised. While this may be construed as imprecise, he couldn’t have been clearer when pointing out the requirements for liberal democracy to thrive.

Because the Kenyan society doesn’t mirror these characteristics, robust liberal democracy can never be a starting point for our development goals neither can primary industrial development in infrastructure spending. In peasant societies, liberal democracy is an end, and not a means to industrialisation. Urbanisation is a natural result of education not a premeditated end.

By ignoring this route (restricted democracy, agricultural investment, technical education, democratisation, urbanisation, industrialisation and matured democracy) Vision 2030 risks being nothing but a game without an end – a house of cards.

Why “developed” will remain a dream – An ideological perspective

previously published on http://nairobilawmonthly.com/index.php/2016/06/30/why-developed-will-remain-a-dream-the-script-we-all-seem-to-be-missing/

By Shadrack Muyesu

Having started out on the same platform, we suddenly find ourselves more than fifty years behind the East. Pointedly, our mercantilist policies are to blame, with the biggest symptom being the land problem. As a young nation, we distinguished ourselves as capitalists, but only in theory. Far beyond subscribing to market ideals, the independence government sought to nationalise and regulate state resources, and when it had to distribute them, it did so only to a few “government-friendly” individuals.

Recovered crown land was, for instance, shared out to a handful of Kikuyu henchmen who never developed it, leaving a large number of Kikuyus, the original owners, landless. Public investment in state-run corporations was consistently preferred over private ventures. Such entities emphasised providing cheap services over making profits. Run by unqualified politically correct personnel, the result was lax. Riddled with corruption, these entities degenerated to the fallen institutions we know today.

As it is, Kenya is a lower middle income state, a status which, it must be emphasised, is as a result of economic manipulation in rebasing rather than meticulous planning or working systems. Markedly, the economy continues to grow albeit at a slower rate. We all agree however, that we are far behind and need to grow faster. Public spending on infrastructure is the way we have chosen – a novel idea really, the best even, but with this comes the question of cost. The money we need to fund our projects can only be raised by adopting one of two choices. We can multiply production, create surpluses and thus improve our export revenues, or we can just borrow and bank on returns from wise investment. The former route means restructuring our goals to make food security and tourism our immediate priorities, while leaving grand highways and high-rise buildings for a later date.

Not only long and boring, the later does not offer the allure of easy cash. So we have chosen borrowing.

But should it be so? Unlike the West, our society is predominantly rural with agriculture accounting for more than 30 per cent of our net foreign income. And as Robert Bates argues, when a society is predominantly rural, then the surplus necessary for industrialisation must come from the rural sector; this means the commercialisation of agriculture and the export of finished products as opposed to raw materials.

Cheap pricing and adequate production can, however, not be achieved naturally since we still suffer from an acute lack of technology, which condemns per unit production costs to remain high. We can only achieve this through coercive means. While the application of such coercion was used so successfully to catapult industrialisation in latter industrials, African and indeed successive Kenyan regimes have been reluctant to invoke it for fear of the risk of political incorrectness and urban revolt – a phenomenon best captured by Michael Lipton’s Urban Bias theory.

In his book “Why the Poor Remain Poor”, Lipton correctly identifies shortage of quality affordable foods to be the overriding concern for the city. Containing a higher population of educated persons, the city forms policy and enjoys a higher bargaining clout. This translates to a host of policies that prioritise city concerns while overlooking the villages. Since food prices have to be affordable in the city, the cost of production is dumped with the rural poor – the farmers.

Meanwhile, scare resources, instead of going into “water pumps to grow rice, is wasted on urban motor ways”. And Theodore Schultz (1990) agrees. He notes that agricultural prices are highly distorted in Africa. Why? To “ease the cost of living”, the prices of goods are determined more by legislative action rather than by market forces, leaving us with many subsidised commodities. But the reality is, subsidised consumer commodities mean that farmers cannot get value for their products. As such, they cannot produce enough for consumption and surplus for export, driving the cost of production upwards in the process.

This is the reasoning behind the fall we are seeing for maize prices in spite of the heavy rains and the price wars between cane, tea and coffee farmers and factories. Instead of simply liberalising the market, successive governments have consistently sought to plug dangerous cracks through bailouts!

Reluctant capitalists

We have consistently exported raw or unfinished products only to import the finished goods later at much higher prices, condemning us to perpetually low returns from an agriculture industry with otherwise so much potential. So much is said about the Asian experience, but the one thing they did perfectly, which has so far eluded successive Kenyan regimes, is taking advantage a predominantly liberal worldwide market economy that allowed latter start-ups to import technology, apply it and produce finished products, hence competing favourably with the rest of the world.

Francis Fukuyama assesses Asian success to be hinged upon five primary factors, all of which have been missing in our own system. He talks about the need to import technology; the need to invest in sustainable human capital to apply this technology by exporting cheap labour to industrialised nations to learn then come back; the need to invest in technical education; the need to export finished products; and most importantly, the need to allow market forces to apply in a capitalist environment. But as already shown, our regime is mercantilist; a reluctant capitalist at best.

Developing the theory of coerced development I had mentioned earlier, it’s perhaps time we recognised that socialist central planning catalysed industrialization in a single generation for many second generation industrial states. The Soviet Union realised this through squeezing its agriculture in a regime of, according Fukuyama, outright terror in the 1920s – a process that had taken early industrials centuries to accomplish through non coercive means.

Although “uncommunist”, Far East regimes were not immune to coercion either. Successive authoritative regimes consistently sacrificed social justice at the altar economic success. Successive governments applied draconian policies so as to reduce consumer demand and enforce a culture of saving. It is this culture, though unpopular to start with, that guaranteed surplus and provided capital for public investment. China has actually enjoyed an average growth of 8pc per annum even though it’s a one-party regime. Josef Stalin used exactly the same system when he forced savings of the industrial working class after people moved to the city. He increased taxes and made mandatory the act of saving with saving schemes. The subtle wisdom in all this is that when people are allowed to earn their money, it’s easier to tax them more.

The role played by “benevolent dictators” in the economic resurgence of nations such as Ethiopia, Rwanda, Libya and Egypt means that the successes of authoritarianism haven’t been savoured by the Far East states alone. Places such as Chile, Taiwan and South Korea actually experienced slower growth after they had democratised! Emergent Western states were also not as democratic when they started out and grew so rapidly to gain First Word status. In “Indianomix – Making Sense of Modern India”, Vivek Dehejia and Rupa

Subramanya acknowledge this fact when they write: “periods of very high economic growth in the 20th century are associated with autocratic, not democratic regimes”. They go as far as invoking these principles as an explanation behind the slow growth of India relative to China.

Parallel to coercion, our proudest moment as a nation undoubtedly came with the promulgation of the Constitution, 2010. Beyond all else, this Constitution affirmed our status as modern democracy by guaranteeing the rule of law and the protection of human rights. On this alone, we were elevated to the same pedestal as progressive Western regimes. The latent features of democracy, however, mean that we condemned ourselves to the slow industrialisation of early Western industrials. While good, democracy is not only deceptively slow, it is also quite counterproductive in multi layered cultural societies such as ours – a fact which Fukuyama himself acknowledges.

Democracy is pillared on public participation. Where, as in Kenya, the public remains primitive (poor, uneducated, uninformed and dominated by subsistence growers and workers as opposed to entrepreneurs) any participation from them is toxic. But that’s not all. Extensive democracies result in large governments which are expensive to run. Money that should fund growth ends up in recurrent expenditure. Lastly, judging from the Kenyan experience, within a primitive society, democracy hardly punishes socio-economic crimes such as corruption – a dark hole that consumes more than a quarter of our budget every year!

It’s not the purpose of this article to denounce democracy. In any case, an attempt at such denunciation would risk the wrath of our “constitutional elites”. The article only observes that democracy is a better consolidator of industrialisation and a very poor catalyst to such industrialisation. In reverse, autocracy is a better catalyst of industrialisation and a very poor consolidator of it.

Far East regimes such as South Korea are deemed to have developed due to their dictators’ policy choices, yet the invocation of such remains impossible with the continued presence of the constitution. A clipped presidency and separation of powers means that even the democratic alternative power of “executive orders” is very hard to invoke. It’s too late to do away with democracy but we can at least modify it. For growths’ sake, amending the Constitution to reduce the size of government and increase presidential powers is not implausible. But first we need to have the right person in place lest we surrender national resources to an unworthy character.

The long and short of it is that, in so far as two very critical points are concerned, the investment module and the nature of government, Kenya has dropped the ball. We cannot continue to rely on external resources while we overlook rallying our internal resources. As history has consistently proven, agriculture ought to have been the focal point of our economic growth, maximum benefit from which can only be achieved through a faithful adherence to capitalist – not mercantilist – ideals. Market coercion can only be realised by an authoritarian regime, not the “robust democracy” with which we pride ourselves.

Socialite or advocate, certainly not both

previously published on http://www.nairobibusinessmonthly.com/society/socialite-or-advocate-certainly-not-both/

SHADRACK MUYESU

Talk about fancy holiday getaways, vintage handbags, even a skin formula, a woman has needs, immediate needs. And there is no better way to cure them than to pursue a new “social entrepreneurship portfolio that creative Liberals have conjured up which thus far has demonstrated maximum benefit at minimum cost. The only problem is that, heavily reliant on the fickle entities of a lookable face and a fierce physique, this type of entrepreneurship doesn’t offer much in terms of a proper retirement plan. That the culture of disciplined saving for a “rainy” day is not an innate human characteristic makes the sole reliance on social entrepreneurship even more unreliable an occupation.

A very Bad Joke Stretched too far?

Having chosen to bear the rigors of laws school on the side (you know, for the future) and of course, schooled in these laws of diminishing returns, soon enough one Corazon Kwamboka will also table her application for admission to the bar. Her supposed stellar grades of zero consequence, my guess is that at the behest of LSK or some concerned citizen, the Chief Justice will invoke a morality clause to veto her admission. But a person of her rumored intellectual mettle ought to sprint to Court on a petition seeking everything article 23 has to offer; a stay of the CJ’s orders, an order of compensation and a declaration of rights, name it. Not sure she is one, my thinking is that perhaps satisfied with the substantial reaps of her social entrepreneurship, a lack of interest or better yet ignorance, she’ll probably stall – and she should!

Hers makes a very curious case, on several fronts. Foremost, her ‘immorality’ does not constitute a seamless fit into the professional misconduct definition of Section 60 of the Advocates Act and part C of the Code of Ethics and Conduct for Advocates; neither does it constitute a direct shortcoming on the moral fitness meditated by section 15. Actually the aforementioned sections do not offer any proper definition for profession misconduct or moral fitness yet it is only upon these grounds that any pre – disqualification could have been premised. Secondly, denial of an admission to the bar on moral grounds, while meditated under section 15, is actually quite rare – at least as far as Kenya goes.

Internationally, where admission or even disbarment has been contested, it has always been on matters other than supposed ‘loose morals’.

The general norm has for long been that a professional will be disciplined when they flout professional guidelines i.e. in the line of duty, within lawyer-client interactions. For a long time, the law didn’t put much care into personal orientations and habits, or did it? In Shapero v. Kentucky Bar Association O’Connor J. observes that:

“One distinguishing feature of any profession, unlike other occupations that may be equally respectable, is that membership entails an ethical obligation to temper one’s selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market. There are sound reasons to continue pursuing the goal that is implicit in the traditional view of professional life. Both special privileges incident to membership in the profession and the advantages those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth.”

Where the law has extended the boundaries of professional circles such as in Prince v. Law Society of Cape it has regrettably failed to interrogate the question of shifting societal morality.

More times than one, courts have assumed a positivist approach by unwittingly defining what is moral to be what is legal and what is illegal to be immoral. Consequently, an act of professional misconduct has often been an illegal act, not an immoral act! In prince, the constitutional court of South Africa denied the applicant, a Rastafarian and a self confessed avid user of the banned cannabis, registration for his articles as an attorney as he, even after admission as an advocate, would continue breaking the law whilst bringing the profession into disrepute with his behavior

IMG_1993The interpretation of prince is that an advocate can practice adultery of the highest contemplatable extent, even “twerk” in clubs as bonus, without qualifying for disbarment or other disciplinary proceedings as she would if she touted, undercut or ‘smoked a blunt at home’. A violation of the dictates of the LSK Dress Code of 2013 falls in the same category as the aforementioned wrongs of undercutting, touting and many more highlighted under the Advocates Act. It qualifies as a professional misconduct even a moral flout, not because it is morally wrong in the strict sense of “morality”, but rather because it is a breach of codified law – an illegality!

That said, while there is no such thing as ‘my dress my choice’ for an advocate (even a lawyer), this caveat only extends to courtroom appearances or when making a chamber application before a judge or magistrate. Outside court however, when the veil of Madam Wakili is dropped, Corazon is free to resume her preferred “tight and skimpy”. The same goes for dreadlocks and other elaborate hairstyles, footwear, jewelry and earpieces.

Unfortunately for her, the law on professional misconduct is not cast in stone. The latent ambiguity of the definition of moral or professional misconduct, even the discretion that the Advocates Act places on the Chief Justice to veto any requests of admissions means that what is moral or what amounts to professional misconduct is the discretion of the admitting authority (and the courts). It is on this confusion that Corazon, if she is as stellar as whispered, will sprint to court!

That she publicly practiced and enjoyed the fruits of her trade, that she enjoys an alarming notoriety of expertise in a trade that the lay public considers a locus classicus for prostitution however, presents a very serious stumbling block to any argument she might want to put across in her defense. For the public, a night nurse? Practicing advocacy? Now that is enough to throw a profession into disrepute – enough a ground to warrant non-admission!

The need to protect public honor is betrayed under section 20 of the LSK Code of Conduct and Ethics for Advocates which states in part:

“…Advocates should expose without fear or favour before the proper tribunals corrupt or dishonest conduct in the profession, and should accept without hesitation employment against a member of the Bar who has wronged his client.  The counsel upon the trial of a cause in which perjury has been committed owes it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities.  The advocate should aid in guarding the Bar against the admission to the profession of candidates who are unsuitable by reason of their moral character or insufficient qualification.  The advocate should strive at all times not only to uphold the honour and to maintain the dignity of the profession but also to improve the law and the administration of justice…”

More specifically for Corazon, the latter section 29 holds:
“No Advocate may practice as an advocate and be engaged in any trade or business which the council may declare to be incompatible with practice as an advocate or tending to undermine the high-standing of the profession.”

Equally, the code emphasizes on “Responsible use of social media”. I’m not sure Corazon would be willing to give up Instagram, ‘attending events’ and ‘modeling’ for the boring, not so well paying rigors of a court room, let alone give up the trips to Dubai, Barbados et al for the Kibera Law Courts.

On the same topic, Noel Cox in The Enforcement of Professional Ethics and Standards in the Kenyan Legal Profession Par 40 notes:

“Consequently, to perform the said functions in the spirit of public service, a high ethical and professional standard must be maintained within the rank and file of the profession, the lawyer must consequently amongst other things, be of high integrity, probity, honesty and competent, like in any other profession members of the legal profession must shun those things which are likely to bring the profession into disrepute…members of the law society belong to a profession- a privilege traditionally reserved for medicine and the clergy.”

Hopefully Corazon will proceed to court because the court’s ruling on this one would make an interesting read. Actually, if we are to be guided by prince (supra) she could just win her admission as long as she denounces her lifestyle thus far and undertakes to lead a reformed and dignified legal practice. Any other outcome and we might as well name a popular nightspot after her.

Corruption: Important perspectives we must consider

previously published on http://nairobilawmonthly.com/index.php/2016/12/01/corruption-important-perspectives-we-must-consider/

By Shadrack Muyesu

As long as human want persists and the principles of scarcity, choice and opportunity cost remain true, corruption can only be mitigated, not eradicated. It’s time the debate on corruption moved away from enumerating its instances to concentrating more on finding out its causes. Only then can we find a real solution.

While public intellectualism recommends a change of mind-set, public morality cannot be coerced. The required mind-set is the result of a gradual evolution, which comes about as the historical socio-economic factors influencing a people’s thinking periodically diminish. Similarly, tougher regulations are bound to fail as long as the public remains “intellectually immoral.”

As the post-August 2010 period has demonstrated, a good constitution without a progressive civic-minded population to supervise its implementation is a failure ab initio. One cannot effectively critique corruption without equally critiquing the law, the system of government and the supervening socio economic environment, without asking themselves what influences voter choices and government action (or inaction).

Human beings are by nature selfish. When required to make a choice, they pick the outcome that best guarantees their continued prosperity. The result is either a widely beneficial outcome common in elite states or a system failure synonymous with primitive states. In elite states, the population is predominantly urban with most of the people either business owners or pursuing white-collar careers. As such, most of the choices they make, while selfish, are informed by the well being of long-term business; the principles of competition, demand and supply guarantee that any goodness is spread across the board.

Primitive states are those whose populations are starkly divided across social, cultural and economic lines. They are predominantly rural, with a general population of subsistence farmers. Unlike the former, they tend to respond to outcomes which even if not demonstrably beneficial, guarantee that the rivals (tribes) do not benefit. Such benefits can only be pursued within an intricate ethnic collective, not individually. Poor and without business interests to protect, they favour short-term economic aggrandisement.

Adopting the Constitution of Kenya, 2010, effectively transformed Kenya into liberal democratic state (at least on paper) – which meant the institutionalisation of free market, constitutionalism, the rule of law, unrestricted universal suffrage and the protection of minorities. The new system created an interdependent relationship between government organs, as well as between elected government and the electorate. Among others, the Executive would rely on parliamentary goodwill to pass policy and, on an understanding of the impeachment module, to survive. Yet most importantly, it would also require the electorate’s favour to get and stay elected.

To guarantee constitutionalism and the rule of law, the Constitution divided norms hierarchically as well as set in place an elaborate system of checks and balances. At the top of this system was the electorate. Presidential powers were significantly curtailed – a novel idea yet one which de facto elevated Parliament to a superior status. As some of its most eloquent proponents in Alexis de Tocqueville and Francis Fukuyama have argued, this system could not succeed where, like Kenya, the public remains primitive.

Deep-seated historical stratification has rendered many citizens incapable of effectively and objectively electing and supervising government. When making political and policy choices, they are influenced more by choice factors such as tribe, political party affiliation, religion and bribes more than they are by nationalistic rationale. The same applies to government.

While the concept of “tyranny of numbers” has been severely criticised, it is the natural result of a healthy democracy. The Executive can only be successful when it has the requisite numbers to galvanise support for its policies. In primitive societies, such support can only be gained (and consolidated) through manipulating choice factors.

Though the Constitution (2010) attempted to address these factors, their effects persist. Generally, norms set out in law merely respond to choice factors in a formal sense. They acknowledge the existence of choice factors without addressing themselves on why they manifest. This brings us to a simple conclusion: however progressive a country’s laws may be, identity politics and tribalism will continue to manifest – which phenomena are most prevalent in primitive societies.

Empower institutions

Apart from a change in mind-set, a number of solutions have been suggested. Chiefly, citizens have been asked to register and vote in mass if only to elect an alternative government. This position is built on the unproven logic that an alternative government will perform more soundly.

But as long as our democracy persists within a primitive environment, a change in government will hardly translate into a significant, permanent change in fortune – or else Hobbes’ theory on the selfishness of man is rendered untrue. The call for the President to summarily round up and jail all corruption suspects similarly gains traction. Yet it flies off the handle of the rule of law and separation of powers.

On corruption, the new regime has significantly dimmed presidential powers, choosing instead to spread them across a number of other arms and independent bodies. The power to appoint and dismiss is shared between the Presidency and the Legislature; the power to investigate lies with the Ethics and Anti Corruption Commission and the Directorate of Criminal Investigations; the power to prosecute lies with the Directorate of Public Prosecutions, and that to determine culpability lies with the Judiciary – which culpability is assessed on the assessment of evidence, not intuition or public perception. To take over one body’s functions is to defy law even as the malfunction of one of the bodies in the chain corrodes the whole idea of holding suspects accountable.

While the system occasionally malfunctions, a laudable feature of the Constitution is that it anticipates such malfunction and offers ways of addressing it through its checks and balances. Where any of the agencies below the Presidency (bar the Judiciary) act mala fides, they can be realigned through a combination of parliamentary procedure and presidential action. Where the Presidency fails to act, the electorate can always be pacified through invoking the impeachment modules numbered by the Constitution. The Judiciary can always be monitored through a combination of internal and presidential procedures.

To buttress the initial argument regarding parliamentary supremacy, at the centre of the legal framework on corruption lies the Legislature. It is therefore, important that Parliament acts independently and “civic mindedly”. Unfortunately, Parliament has so far been unable to do so – a situation that can be attributed to the deep-lying stratification earlier highlighted, and the inability of the public to properly audit it.

Retributive justice

In summary, while a lot can be inferred from the actions of the President, the other duty bearers below him need to take responsibility as well. Corruption is not only an indictment of the Presidency; it also casts responsible institutions and Parliament into negative perspective. Ultimately, it is the citizens who stand to be blamed, as it is they that fail to hold these institutions accountable.

To clamour retributive justice (at the instance of the Presidency) is to sacrifice constitutionalism, the rule of law and separation of powers. While “let’s overlook the Constitution for the greater good” would be a natural response to this thinking, adopting it would see Kenya slide back into the period of anarchy, extrajudicial killings, imperial presidency and arbitrariness she was just emerging from. Not only so, it points towards a malady greater than the Presidency – the government system contemplated by the Constitution.

Does the answer lie in backtracking on liberal democracy (and universal suffrage)? Not at all; a permanent solution means tailoring the current system to something sui generis to our situation. We should restrict universal suffrage, expand the Presidency and separate it from the electorate, vet all political aspirants, thoroughly observe Chapter Six and limit the Senate to independently elected elites (civic minded persons demonstrably least affected by choice factors who are also opinion leaders in their areas of expertise). It is from such a Senate that Kenya should pick her presidents – not directly from the electorate.