Kenyan Experience: lessons South Sudan can learn

By Jacob Dut Chol

April 8, 2013 – This has been fierce debates in both pedagogy and policies echelons on the transition to Democracy. Many transitologies such as Guilerlimo O’ Donnell, Philippe Schimitter, Dankwart Rustows and Carothers and Stephan & Juan to mention but a few have hyper-pride as fathers of transitology. From 2008-2013 Kenya has proven to be permanently in transition to democracy. Why is that so? What explain such achievement? Is it a coincidence? What lessons can Semi-Authoritarian South Sudan can learn from Kenya? This paper aims to examine most recent advances in transition of Kenya to democracy, which was often considered to be one of Africa’s most ethnic-divided stalled cases. Before doing so, it would be reasonable to scrutinize democratic transition theory and uphold Juan & Stephan’s definition as appropriate for this argument. While some scholars have tainted the image of Kenya as antidemocratic after 2007; this paper challenges that view and instead through survey of democratic transitology literatures’ argues conflict and reconciliation as requisite condition for Kenya permanent transition to democracy. It argues that reconciliation fosters moral ethnicity which is here defined as the level of sensitivity of the members of ethnic group in avoiding hate and distress statements that could lead to more violence. As people become sensitive about distress and divisive statements, then their unity is achieved and this enhances government legitimacy to initiate reforms. The paper further argues that judiciary, police reforms and promulgation of a new constitution labelled as Kenya’s second republic uniquely explain Kenya’s stable path to democracy. This is captured seminally as the respect to the Rule of Law that explains March 4th 2013 peaceful elections. This is further influenced by Kenya’s strategic leadership in Eastern Africa region.

In arguing conflict and reconciliation, Kenya’s transformation to rule of law and its strategic leadership as central thesis of this paper; it would thus be necessary to reflect on theory of democratic transition in order to discern a few scholarly debates. Recent writings of American sociologists and political scientists favour three types of explanation. One of these, proposed by Seymour Martin Lipset, Philips Cutright, and others, connect stable democracy with certain economic and social background conditions, such as high per capita income, widespread literacy and prevalent urban residence. A second type of explanation dwells on the need for certain beliefs or psychological attitudes amongst the citizens. A long line of authors from Walter Bagehot to Ernest Barker has stressed the need for consensus as the basis of democracy-either in form of a common belief in certain fundamentals or of procedural consensus on the rules of the game, which Barker calls “the Agreement to Differ.” Among civic attitudes required for the successful working of a democratic system, Daniel Lerner has proposed a capacity for empathy and willingness to participate. To Gabriel Almond and Sidney Verba, on the other hand, the ideal “civic culture” of a democracy suggests not only such participant but also other traditional or parochial attitudes (Rustow, 1970:338).

Since the ‘concept of transitology’ is prevalent within the literature of democratization as demonstrated by democratic scholars, it’s essential to get a working definition of transition to democracy so that a clear cut is drawn from mere concept of democratization. There is much scholarly debate over the most useful definition of ‘democratic transition’. However, O’Donnell and Schimitter, Linz & Stephan and Carothers make constructive arguments. O’Donnell & Schmitter define transition as the interval between one political system and another (O’Donnell & Schmitter, 1986:6). According to them, the beginning and end of this process are relatively easy to trace. The transition begins with a split in the authoritarian regime, after which regime elites who believe in the necessity of electoral legitimating become dominant. These soft-liners, as they are known, typically negotiate a pact with moderate opposition elites, providing for elections under clearly defined rules and procedures. The transition ends when new political elites assume power or, in rare cases, the old elites are newly legitimized. In most sub-Saharan African cases, as well as many elsewhere, both boundaries of the transition process are in fact hard to delimit. It is difficult to determine when a particular transition began and, more significantly, when it has actually ended (Brown, 2004:1).

Carother’s view on transition paradigm refers transition to democracy to where the process of democratization is assumed to include some redesign of state institutions-such as creation of new electoral institutions, parliamentary reform, and judicial reform –but as modification of already functioning states (Carothers, 2002:7). Linz and Stephan provide in-depth definition by noting that a democratic transition is complete when sufficient agreement has been reached about political procedures to produce an elected government, when a government comes to power that is the direct result of a free and popular vote, when this government de facto has the authority to generate new policies, and when the executive, legislative and judicial bodies generated by the new democracy do not have to share power with other bodies de jure (Linz & Stephan, 1986:1).

A country is likely to attain democracy not by copying the constitutional laws or parliamentary practices of some previous democracy, but, rather by honestly facing up to its particular conflicts and by devising or adapting effective procedures for their accommodation (Rustow, 1970:354). Looking at it as a social and political phenomenon, conflict and reconciliation has emerged as essential explanation for transitioning and consolidating democracies. Indeed, the examples of Northern Ireland’s conflict between Catholics and Protestants over the disputed status of Northern Ireland in United Kingdom as well as South Africa’s apartheid showcase how conflicts after reconciliations can enhance democracy. Carl J. Friedrich, E. E. Schattschneider, Barnard Crick, Ralf Dahrendorf and Arend Lijphart have insisted that conflicts and reconciliations are essential to democracy (Rustow, 1970:328).

It would be fitting therefore to argue that the 2007 post elections skirmishes that became conflicts amongst tribes and elites placed Kenya in a permanent transition to democracy. Because of conflicts then reconciliations efforts were deployed with the enactment of National Accord and Reconciliation Act 2008 that led to the birth of a coalition government (negotiated democracy) between the Party of National Unity (PNU) and the Orange Democratic Movement (ODM). In the spirit of power sharing, the PNU leader Mwai Kibaki became the President and ODM leader Raila Odinga as the Prime Minister with each party taking 50% of cabinet positions. This gesture therefore confirm the widely view that democracy is indeed a process of ‘‘accommodation’’ involving a combination of ‘’division and cohesion’’ and of ‘’conflict and consent’’ (Rustow, 1970:339). After the power sharing deal; the coalition government embarked on the reconciliations and restitutions of the victims of the post-election violence particularly through the National Cohesion and Reconciliation Commission (NRCC). The individuals believed to have orchestrated the post elections violence responded to the International Criminal Court’s (ICC) request for their cases hearing. These six individuals’ known previously as “Ocampo’s six” and now known as “Bensouda’s four” are waiting for their confirmation charges by July 2013 at Hague. It can be argued that successful reconciliations lead to moral ethnicity that fosters ethnic peace and consequently unity of both elites and underprivileged. Indeed, moral ethnicity can be used as shorthand for a political culture which promotes transparency, accountability, inclusivity and civic responsibility (Cheeseman, 2002:94). The effects of moral ethnicity could be identified in the unity of political elites abandoning their tribal affiliations. The example demonstrated by William Ruto from Rift Valley province and Uhuru Kenyatta from Central province to join hands after their ethnic groups lynched themselves during 2007 post election violence revealed how moral ethnicity promotes peace and cohesion.

With unity achieved through reconciliations; Kenyans have recovered significantly to register resounding successes in the economy, politics, interethnic relations and constitution. Like the proverbial phoenix, Kenya has risen from the ashes of the post-election violence to be rated again as progressive after several false starts in the past (Standard Sunday Team, 2012:1). There have been reforms within the police service that began with the firing of the police commissioner, restructuring of departments through sacking and demotion of those believed to have played a role in the 2007 post-elections chaos. On the other hand, those that demonstrated high discipline and integrity got rewarded through promotions, for example, the recruitment of new Inspector General of Police (IGP) testifies to this effort. Besides, the police code of conduct was reviewed with sole interest on neutral community policing. The judiciary went through reforms to enhance timely and fair justice. The reform path began with enactment of vetting of judges and magistrates Act 2011 with the board to do the job established. The most monumental occurrence for the Supreme Court, however, could be when and if it is called upon to perform its exclusive duty of determining a presidential election petition. The new Chief Justice’s administration has set for itself performance deadlines spreading from January to December for judicial excellent. These include implementation of IT programs in the judiciary, opening 14 new stations in different parts of the country, streamlining terms of service and working conditions for staff, reducing the backlog of cases that are in thousands and in long term, introduction of night sittings (Wahome, 2012:20). With all these reforms, the most successful was the electoral reforms with baptism of the Electoral Commission of Kenya to the Independent Electoral and Boundary Commission (IEBC) of Kenya and the enactment of electoral laws that fired the old corrupted commissioners. The new lean IBEC led the successful March 4th 2013 elections and obliged to the petition filed by the Coalition of Reformed and Democracy (ACCORD), Civil Society and African Centre for Open Governance (AFRCOG) against the Jubilee Aliance and IBEC. The abiding of the tetchy parties by the rule of Supreme Court holding the wining of Uhuru Muigai Kenyatta with 50.7% as the fourth president of Republic of Kenya critical explain the deepening of democracy in Kenya. Assessing this scenario, it’s vital to point out the substance of these reforms to be political and legal democratic rights and Wahome supports this view by strongly arguing that the electoral laws and political space have been broadens to the extent that legal disputes will be the order of the day (Wahome, 2012:20). All these reforms are sanctioned by the ushering of the new constitution.

The new constitution promulgated in august 2010 which many scholars debuted as new dawn and which here labelled as Kenya’s Second Republic is the apogee of reforms and a strong evident for the permanent transition of Kenya to democracy. In understanding this, the constitution trims off executive presidential powers and centres powers on citizens through the devolved government. The judiciary and parliament have been given independent powers in discharging their activities. The Ant-corruption commission has been empowered with its Director appointed and vetted by public and parliament. The bill of rights such as citizens’ participation is enhanced particularly political associations. In doing so, the role of civil society organizations is expanded in political discourse; with institutions such as Kenya Human Rights Commission advocating for hygiene in Kenya politics, International Commission of Jurists (ICJ) Kenya chapter retains vigilance in any abrogation of Kenya’s international laws. Because of this political space, the ICJ recommended to the judiciary for the first time the issuance of arrest warrants of President Al-Bashir of Sudan should he set his foot in Kenya. This legal request necessitated the high court judge in November2011 to order the Minister of Internal Security to arrest Al-Bashir if he ever comes to Kenya. Such move can be analyzed as the rebirth of Kenya judiciary in its independence. These reforms could not be done without external influence and I agreed with Rustow when he claims ‘’to speak of major impulses from outside’ or transitions ‘mainly within the system’ acknowledges that foreign influences are almost always present” (Rustow, 1970:348). The US and European Union warned to suspend their countries aid should Kenya refuse reforms. The stern warning went further to the sanctioning of individuals believed to have been stumbling blocks towards reforms. The US government wrote a letter to the Kenyan government sanctioning Amos Wako (former attorney general) and Hussein Ali (former police commissioner) from travelling to the US as those according to state department had a hand in the post-elections violence of 2007. This effort demonstrated Kenya’s readiness in deepening itself in the western democracy.

Apart from conflict and reconciliations that influenced reforms, Kenya’s strategic leadership testifies much of the democratic achievement the country has under gone through in the last five years. On economic leadership, Kenya is widely known as the hub or ‘power house’ of eastern and central Africa for communication, transportation and financial services. Economic prospects are positive with substantive economic growth and development. Assessing this scenario, then it perhaps essential to challenge Rustow’s denial of “economic requisites to democracy”, by claiming that economic development is not correlated to democracy. But Lipset’s statistical argument is useful when he says “if other countries become as rich as the economically advanced nations, it’s highly probable that they will become political democracies” (Lipset, 1959:76). This is a necessary condition but not sufficient condition for enhancement of democracy given the counter argument of Adam Preziworski that economic development is not a requirement for democracy citing poor democratic India. But he also noted that when a country is economical developed then it is difficult for it to slide back to semi-authoritarianism. Taking this into consideration, the Kenya achieved its democratic transition through heavy investments by transnational organizations that led to growth of professional, technical, managerial, entrepreneur middle class especially the academics, agriculturalists and manufacturers. Kenyans are seen as aggressive investors in east, north and central Africa and above all Middle Eastern countries. With the Vision 2030, that made infrastructure development a priority, pluralism, populism and institutionalism in politics; Kenya features itself in deep democracy.

By a way of conclusion, Kenya permanent transition to democracy has been explained by conflicts and reconciliation, transformation to the rule of law and its strategic leadership in the region. The semi-authoritarian Republic of South Sudan has a lot to learn from Kenya and particular March 4th 2013 elections that were majorly viewed as freely and free. Although petitioned through the Supreme Court, the Jubilee Alliance adhered to petitions to the Supreme Court while later the CORD accepted outcome of the results as well. This has been termed as exciting time for Kenya maturity to democracy. Can South Sudan political elites and parties accept petitions and ruling of Supreme Court? Time will tell comes 2015 general elections. But before 2015, the pessimism has already shown on the removal of Lakes State Governor who was supposed to be replaced through by-elections within 60 days and of which has not happened. As such, Kenya should teach South Sudan the courage to create and implement genuine reforms that respects Rule of Law but not Rule of Man. Democracy can only be attained in South Sudan when the political elites accept the reality of Rule of Law and when hypocrisy is eschewed. The consequence should be right policies generated by the citizens taking into consideration pluralism, populism and institutionalism as path to governance but not cantankerous individuals. Even though transition to democracy is viewed as idiosyncratic and sacrosanct in African neo-patrimonial governance, Kenya’s example has broken this taboo and it is considered to be heading to democratic consolidation, a phase where Democracy becomes the “only game in towns”.

Jacob Dut Chol is an Executive Director of the Centre for Democracy and International Analysis (CDIA), an academic and research think-tank based in Juba. He can be reached at [email protected]

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