The Avid Readers’ Forum hosted the third webinar in a series for its 5th Anniversary celebrations on Wednesday, 18 September 2024. During the webinar, the effectiveness of constitutional democracy was the centre of discussion, as was the priority conflict between the people’s voice and party politics in Kenya and the remedies available to the people to address these issues.
The discussants were Hon Gitobu Imanyara, a human rights lawyer, journalist, and former Member of Parliament for Central Imenti, and Ms Lucianna Thuo, an Elections Law and Governance Specialist, Conversation Strategist, Legal Consultant, and Author. It was moderated by Ms Marion Joy Onchangwa, a lawyer and graduate assistant at Kabarak University, who filled in for Mr Samuel Ngure, who could not attend as he was indisposed. Unfortunately, Professor Githu Muigai, who was also expected to contribute to the conversation, sent his sincere regrets.
Hon Gitobu Imanyara began the discussion by stating that party politics has failed, and there is a need to accept this and find a solution. He also pointed out that Kenya has not been able to develop a sense of nationhood like its peers, such as Tanzania, did after gaining independence from colonial rule. Instead, tribal politics, which the colonialists used to divide Africans, continued even after independence in the form of a single-party state. The introduction of multipartyism was organised along ethnic lines to the extent that representatives were mainly concerned with whether their community would benefit. Over the past fifteen years, multipartyism has become 'multi-ethnic'. Hon Imanyara emphasised the need for a new approach to enjoying multiparty democracy.
Ms Lucianna Thuo discussed the challenges people face in engaging with an unresponsive government in Kenya. She highlighted factors such as ethnicity, age, marginalisation, and gender that exclude certain groups from political participation. She emphasised the right of citizens to be involved in political affairs and the responsibility of taxpayers to support citizens' entitlement to demand a voice in governance. Ms Lucianna also pointed out that participation in governance goes beyond just voting in elections, as stated in Article 1. She expressed concerns about the ineffectiveness of the right to petition due to the lack of serious public participation. She stressed the importance of the Judiciary in safeguarding the people's voices. However, she noted that citizens must take action when the Judiciary's independence is threatened. She discussed various avenues for holding the government accountable, including peaceful protests, referendums, petitions, and recalls, citing articles 1, 19(3), and 104 of the Constitution. Additionally, she delved into the challenges posed by the Elections Act and the County Government Act in exercising the right to recall, specifically sections 45(1)(b)(ii), 45(2)(3), 45(6), 46(1)(b)(ii) and (c), and 48 of the Elections Act. She noted that some of these sections were successfully challenged in Constitutional Petition E209 of 2016 by Katiba Institute (Katiba Institute and Another v AG and Another [2017] eKLR), leading to amendments to the County Government Act, while amendments to the Elections Act are still pending.
The moderator and the attendees were actively engaged in the discussion, raising several crucial concerns. The moderator questioned how the government could maintain its legitimacy, given the recent events in the nation. Hon Imanyara responded by first establishing that the government’s culture of impunity could be attributed to the people’s lack of awareness of the Constitution. He suggested establishing a system of forums to educate the masses, from including the constitution in school syllabuses for children to translating the constitution into local languages for adults to familiarise themselves with it. He also addressed the compromised state of the legislature due to party politics, which has made it unable to check the Executive. This discussion was put in context with the debate on dual representation by parliamentarians, where the legislators exist to serve two conflicting interests and, at some point, have to choose between loyalty to the party or honouring the constitution by representing the voice of the people in decision-making. Hon Imanyara emphasized that often, party loyalty prevails over the interests of the people who elected them. Therefore, he concluded that it is up to the people, including the audience, to protect constitutional values.
Ms Lucianna acknowledged that the Government was no longer in control of the narrative and that the organisation of the people, including the audience, would play a crucial role in shaping the society the people desire. She explained the Kenyan political trend, stating that an organised minority rules over a disorganised majority. She noted that to address or avoid this problem, there should be an elaborate plan by the majority towards the government they desire, and there should be a way to create accountability for corruption. Without these measures, the governability of the nation could not be guaranteed. However, with the active participation of the audience and others, a positive change is not only possible but also hopeful.
In conclusion, the panel's consensus was that the failure lies not with the Constitution but with our failure to uphold it. They unanimously emphasised the need for meticulous and comprehensive planning to actualise the populace's collective socio-political aspirations and change the existing state of affairs. It was acknowledged that the original vision of multiparty democracy had not been realised as anticipated. Consequently, there is a recognised imperative to revisit and critically assess the 2010 Constitution in the context of multiparty democracy, mainly focusing on representation's role in realising democratic ideals.
