By Leon Louw
"Power is obtained by ballot instead of bullet only if there are sufficient constraints on what those with power can do to those without it to moderate the consequences of being out of power."
Few analyzes of Kenya's post-election crisis have addressed the fundamental issue of how African democracy can be converted into a peaceful means of transferring power from minorities-in-power to majorities out-of-power. Virtually every ‘solution' boils down to the unhelpful shibboleth that there would be peace if people were peaceful. The problem, as I see it, is a lack of appreciation for the fact that democracy not so much "fails" in Africa but that it hasn't really been tried.
A crude conception of what characterizes ‘Western' democracy has been exported by the West and imported by putative Third World ‘democracies'. In Africa, ‘democracy' is presumed to entail the crude counting of heads, the purpose of which is to find out who has the most support, and then to let them govern as they wish, rather than a sophisticated set of institutions and mechanisms aimed at ensuring good governance.
My contribution to the South African constitutional process, and that of a few other countries where I've been involved, has been to discourage obsession with the concept of democracy as being a process to establish winners and losers, and to focus instead on protecting losers sufficiently for them to surrender power peacefully.
There are 25 or so recognized ‘checks and balances' in the constitutions of most Western democracies, almost none of which have been incorporated in Third World constitutions, including Kenya. One of the most important is the Rule of Law, which has become a largely empty cliché.
The components of the Rule of Law, as opposed to the ‘rule of man', which are of greatest importance are:
Laws must be objective, not discretionary - so that rulers cannot engage in patronage, nepotism and favouritism, and people's rights are a function of law, not the whim of politicians and officials granting licenses, protection, subsidies and government contracts.
Corruption, for instance, is not a manifestation of poor governance, or not ‘clamping down' on corruption and having a ‘clean' administration, but of the formal ability of officialdom and politicians to grant or withhold benefits.
There must be a separation of powers - so that only the legislature legislates (makes laws), the executive executes (implements laws), and the judiciary adjudicates (settles disputes, and imposes sentences and penalties). There is virtually no separation of powers in the Third World, yet it is so taken for granted in the First World as to be virtually automatic.
In Kenya, for instance, countless substantive laws are made by executive decree, and the executive has many tribunals and quasi-courts settling disputes and imposing penalties. These should be functions of a truly independent judiciary working strictly in accordance with the jurisprudential principles of ‘due process'.
There's much more to the Rule of Law, but these two components alone, if understood and implemented in emerging democracies, would go a long way to reducing the intensity of the battle for power, because they reduce the negative implications of losing. What matters in mature democracies is the extent to which those who govern can victimize the governed.
Another well-known constraint on those who govern is a Bill of Rights, which is regarded as ‘democratic', yet its sole purpose is to limit what victorious majorities may do to vanquished minorities. Most Third World countries have Bills of Rights, but they miss the point. Unlike First World Bills of Rights, they are characterized the essential purpose of a Bill of Rights. Instead of specifying what's not voteable, what the majority may not do, they are wish-lists of what governments supposedly must, but cannot do, especially in poor countries, such as provide generous incomes, security, housing, education and health care. What paltry attempts most governments make at delivering on such wish-lists invariably entails making things worse because they claim a constitutional obligation to intensify abuse of elective losers by redistributing more of their wealth to the government's friends, relatives and supporters.
What we should all do at this time of crisis and reflection in Kenya is contribute to a better understanding of why there's conflict - because the price of being out of power is higher than the price of resistance - and how to prevent it henceforth - which is to have unambiguous institutions protecting the governed from those who govern.
"Power is obtained by ballot instead of bullet only if there are sufficient constraints on what those with power can do to those without it to moderate the consequences of being out of power."
Few analyzes of Kenya's post-election crisis have addressed the fundamental issue of how African democracy can be converted into a peaceful means of transferring power from minorities-in-power to majorities out-of-power. Virtually every ‘solution' boils down to the unhelpful shibboleth that there would be peace if people were peaceful. The problem, as I see it, is a lack of appreciation for the fact that democracy not so much "fails" in Africa but that it hasn't really been tried.
A crude conception of what characterizes ‘Western' democracy has been exported by the West and imported by putative Third World ‘democracies'. In Africa, ‘democracy' is presumed to entail the crude counting of heads, the purpose of which is to find out who has the most support, and then to let them govern as they wish, rather than a sophisticated set of institutions and mechanisms aimed at ensuring good governance.
My contribution to the South African constitutional process, and that of a few other countries where I've been involved, has been to discourage obsession with the concept of democracy as being a process to establish winners and losers, and to focus instead on protecting losers sufficiently for them to surrender power peacefully.
There are 25 or so recognized ‘checks and balances' in the constitutions of most Western democracies, almost none of which have been incorporated in Third World constitutions, including Kenya. One of the most important is the Rule of Law, which has become a largely empty cliché.
The components of the Rule of Law, as opposed to the ‘rule of man', which are of greatest importance are:
Laws must be objective, not discretionary - so that rulers cannot engage in patronage, nepotism and favouritism, and people's rights are a function of law, not the whim of politicians and officials granting licenses, protection, subsidies and government contracts.
Corruption, for instance, is not a manifestation of poor governance, or not ‘clamping down' on corruption and having a ‘clean' administration, but of the formal ability of officialdom and politicians to grant or withhold benefits.
There must be a separation of powers - so that only the legislature legislates (makes laws), the executive executes (implements laws), and the judiciary adjudicates (settles disputes, and imposes sentences and penalties). There is virtually no separation of powers in the Third World, yet it is so taken for granted in the First World as to be virtually automatic.
In Kenya, for instance, countless substantive laws are made by executive decree, and the executive has many tribunals and quasi-courts settling disputes and imposing penalties. These should be functions of a truly independent judiciary working strictly in accordance with the jurisprudential principles of ‘due process'.
There's much more to the Rule of Law, but these two components alone, if understood and implemented in emerging democracies, would go a long way to reducing the intensity of the battle for power, because they reduce the negative implications of losing. What matters in mature democracies is the extent to which those who govern can victimize the governed.
Another well-known constraint on those who govern is a Bill of Rights, which is regarded as ‘democratic', yet its sole purpose is to limit what victorious majorities may do to vanquished minorities. Most Third World countries have Bills of Rights, but they miss the point. Unlike First World Bills of Rights, they are characterized the essential purpose of a Bill of Rights. Instead of specifying what's not voteable, what the majority may not do, they are wish-lists of what governments supposedly must, but cannot do, especially in poor countries, such as provide generous incomes, security, housing, education and health care. What paltry attempts most governments make at delivering on such wish-lists invariably entails making things worse because they claim a constitutional obligation to intensify abuse of elective losers by redistributing more of their wealth to the government's friends, relatives and supporters.
What we should all do at this time of crisis and reflection in Kenya is contribute to a better understanding of why there's conflict - because the price of being out of power is higher than the price of resistance - and how to prevent it henceforth - which is to have unambiguous institutions protecting the governed from those who govern.
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