Democracy and opposition are supposed to go hand in hand. The nascent debate in Kenya is not just about whether democracy will survive, but about the quality of that democracy if it does. The role, functions, legitimacy and capacity of political opposition, in a situation where it is highly fragmented, constitutes a key aspect of this debate. While most democracies have a clear opposition but a small number of opposition parties to choose from, Kenya has a great many party options, but some of them have proven not willing to act in an oppositional manner, others act in an oppositional manner while the rest are not acting at all ( it’s like they don’t even exist).
The opposition in Kenya, divided along grounds of history, ideology, aspiration, orientation and ethnicity, as well as by more immediate competition for electoral advantage, are generally conceived to be struggling around major questions of tactics and strategy. How should they best ‘oppose’? Should they work singly, or in combination? If the latter, in informal alliance or formal coalition? And is their best option to engage in ‘constructive opposition’ or ‘destructive opposition’? When the opposition retaliates outside lawful means hoping to oust the President before the end of his constitutional term, it loses legitimacy domestically and abroad.
The sheer scale of Kenya’s recent events invites us both to look for new answers to old questions about democracy and political opposition, and to ask new questions about them altogether. This article asks three interrelated questions that in recent years, are “rarely” asked in political science, but that the Kenyan case suggests we might need to ask with greater frequency and urgency. First, how does opposition emerge as a political process in newly democratic settings? Second, what are the functions/ duties of the political opposition in a democratic government? And third, how might contemporary Kenya (with new political rules) reshape these duties and powers? These three questions have converged in Kenya in an unanticipated manner. The aim here is to document the good and ugly things opposition parties are currently doing in Kenya. In brief, I argue that while opposition parties play an increasingly important role in shaping policy agendas, conducting civic education, and fighting corruption, singly or in alliance with the media, the political opposition also, unless the incumbent government capitulates to their political needs or there’s a promiscuous power-sharing (an especially flexible coalition-building practice in which parties express or reveal a willingness to share power and work together), is marred by anarchy. In other words, despite the opposition keeping the government in check, it also causes mayhem by lobbying their supporters who engage in violent protests such as blocking roads, throwing stones at police, vandalizing public and private property etc mostly because Kenya’s President hasn’t considered it strategically advantageous to share power with them or favour them in their political dealings.
Before I sketch in full the contours of my argument, I find it germane to prepare the analytical stage for the unfolding drama. Thus, I start by unpacking the proverbial concept of democracy and the role opposition parties play in the democratization process. This is followed by a brief presentation of both the good and ugly acts of opposition parties today. The paper ends with a conclusion and recommendations.
Ventilating the impact of opposition in Kenya
I once had a very interesting conversation with a lady based in Kajiado about the profitability of fish farming (mostly associated with the people from Nyanza- home to the opposition leader in Kenya) and poultry farming (which according to Kenya’s current President contributed to his immense success). We had a lot of areas of agreement including that both are very lucrative depending on proper management and thus she seemed very interested in poultry farming. This is after we weighed both the risks and benefits considering her area of residence. I suggested that she should then follow her passion (start poultry farming) but she responded, plaintively, “but I’m in Azimio.” What kinds of politics might become possible if we all learn to be less concerned with conforming to certain labels and more capable of listening to the complexity of our desires? My concern, here, is that opposition, a politics of opposites that push against each other, lean on each other, shouldn’t get in the way of the listening and making robust decisions.
Before we begin the substantive analysis of my argument, it is important to first outline what is meant here by the concept of democracy.[1] Democracy is not merely crude majority rule. It is a political system that combines representative and responsible government with fundamental rights, the rule of law, checks and balances, impartial administration, and means of participatory engagement and open public discussion. In allowing free and fair competition for public office through elections, democracy presupposes differences of both interest and opinion, and therefore recognizes the legitimacy of political pluralism, including political opposition.[2]
Hence, it is generally accepted that an effective democracy entails more than simply periodic free and fair elections. All societies must devise mechanisms for determining the following: Who will control the state? How will that control be established? Who will benefit from state actions? Who will pay the costs? Will the exercise of power be constrained? In contemporary Kenya, the key issue is the degree to which these issues will be resolved not only in a technically democratic way – regular elections, accurate vote counting – but in the spirit of a democratic society which requires that:
-opposition parties are free to compete for electoral support and established and accepted procedures, including periodic free and fair elections, are in place
-groups within civil society, such as trade unions and business organisations, are free to interact with government to further their sectional interests
-civil liberties are recognised and protected, and the population has access to an independent mass media
-there is some form of separation of powers – at least at a minimum between the executive and the judiciary
-all parties – the ruling and the opposition – agree to play the political game by the rules. This implies that the losing parties accept the legitimacy of the winners who in turn accept the legitimacy of constitutional opposition.
Opposition in democracies is not merely tolerated but also valued as a vital element of the political system. Opposition parties perform crucial roles in bringing new issues to the policy agenda, shaping public debate, holding the government to account, informing and mobilizing voters, and providing voters with a choice of credible alternatives at elections. Effective opposition can help the government to avoid mistakes—or swiftly correct them—thereby improving governance outcomes.[3] Opposition parties operating in democratic Kenya, rely upon a wide range of constitutional protections, such as the freedoms of association,[4] assembly and demonstration[5] and expression,[6] backed by an independent judiciary and an impartial civil service. Constitution of Kenya[7] recognizes the rights of the political parties only by providing for the basic requirements for all political parties[8], leaving much of the detail of “political opposition” to be determined by the standing orders or rules of procedure of the legislature, or by convention, custom and tradition. Other constitutions provide for the rights of opposition parties in considerable detail.[9]
There are many advantages that stem from a country’s recognition of the opposition in its constitution, inter alia;[10] First, recognizing the opposition proclaims the value and legitimacy of opposition parties as an accepted part of the political system, curtailing any attempt to establish a one party regime, and preventing governments and incumbent majorities from excluding opposition voices or evading scrutiny. Second, recognition of the opposition in the text of the constitution is necessary if specific provision is to be made for the opposition in the legislative or scrutiny processes. Third, it enables the opposition to be involved in other, non-policy decisions, such as appointments to judicial and fourth-branch (regulatory and oversight) institutions, thereby protecting the institutional integrity of judicial, administrative, electoral and financial systems and helping to prevent the capture of these institutions by the government (which would have negative consequences for the rule of law, good governance and democracy).[11]
There are no risks directly associated with the recognition of the opposition, but care must be taken to prevent the opposition from having so much veto power that it hinders effective policymaking. A certain amount of delay, public scrutiny and frustration can be beneficial in helping to improve policy outcomes, but a political system can stand only so much of this. Decisions cannot be bogged down indefinitely; otherwise, public trust in the effectiveness of the state and in the ability of the elected leadership to deliver on their electoral promises would be undermined.[12] It is therefore important to consider the role of the opposition in the context of the overall set of checks and balances in the constitutional order. The intention is that opposition parties should be present, should have a voice and should be able to scrutinize, to offer alternatives and to prevent abuses of power—but not that they should make a country ungovernable.[13]
Rapid changes have taken place in Africa since the end of the Cold War, decades ago. Almost the entire continent has, in an amazingly short time, made remarkable progress towards political participation and economic emancipation. Most African countries have held ‘more or less’ competitive parliamentary elections – and approximately half of these have been declared free and fair by international monitoring teams. In many cases, opposition parties were formed legally and could go public for the first time. They called, above all, for the abolition of one-party rule and the modernisation of electoral systems. Parliamentary and presidential elections which give voters the opportunity to choose between parties, persons and programmes are today seen worldwide as an indicator of democracy. A proper democratic electoral process cannot be implemented without allowing a multiparty contest.
In the Preface of his landmark collection on Political Oppositions in Western Democracies[14], Robert Dahl noted that of ‘the three great milestones in the development of democratic institutions’– the right to vote, the right to be represented, and the right of organised opposition – it was the last which was ‘wholly modern’ to the extent that it was ‘a recent unplanned invention that (had) been confined for the most part to a handful of countries in Western Europe and the English-speaking world’,[15] with only about 30 of the then (1964) existing member states of the United Nations (UN) having political systems in which full legal opposition among organised political parties had existed throughout the preceding decade. Dahl’s book stands as the first major attempt to understand the conditions under which political opposition can expect to flourish, and what patterns it is likely to assume – even though the politico-geographic scope of its coverage was limited to ‘established democracies’. Yet, significantly, he was also writing as a committed advocate who conceived of opposition as a necessary ingredient of democracy, one who was inclined to the view that ‘the existence of an opposition party is very nearly the most distinctive characteristic of democracy itself.’
Opposition parties in Kenya are free to criticize the ruling party’s policies, ideas and programs and offer alternatives. These parties must also recognize and respect the authority of the elected government even when their party leaders are not in power. The opposition parties in Kenya have and still continue to perform several important functions. These include:[16]
-Interest aggregation: Opposition parties have helped aggregate the interests of the political community by articulating/ projecting certain preferences, values and ideologies into the policy and lawmaking process (eg in Parliament) and in the budgeting process;
-Opposition parties have also promoted responsible and reasoned debate. This has in turn promoted “national conversation” and pushed democratic discussion to a higher level of political development and maturity;
-Opposition parties have maintained touch with the voter-citizen and demonstrating the relevance of politics to ordinary people, that is, the oppressed, the marginalized, the disenfranchised;
-Opposition parties in Kenya also holds the government to account for its commissions or omissions;
-Opposition parties have also presented a viable alternative to the incumbent government by designing alternative ideas, principles and policies for governing society. Should the party in power let the voters down, the “government-in-waiting” takes over the reign of power – through free and fair elections;
-Opposition parties have further strengthened the culture of democracy within the party and the political community in general (by, for example, promoting open debate during delegates’ conferences, promoting intra-party democratic elections and ensuring accountable use of party finances)[17]
A recent example, on 20 February, 2023, Azimio leaders (opposition party in Kenya) organized protests over the high costs of living. The protests however were futile. This is because in some places, the police could be seen lobbying way to many canisters to peaceful crowds, some were unjustly arrested and even the opposition leader’s (Raila Odinga) entourage teargassed as they peacefully left Serena Hotel in Nairobi. This is contrary to our laws which provide for the right to peaceful assembly and aso obligates police to ensure public safety and the protection of the lives and property of the citizens during protests. The government should not use the police force as means of gratifying impunity in order to continue harassing it’s citizens with oppressive policies and laws.
Can we therefore conclude that, in ten years and three direct presidential elections later, despite the good side of the opposition, the opposition parties have also caused havoc and anarchy in the country while in pursuit of their political interests? This is the core causal question that animates this article. Opposition failure is common under electoral authoritarianism, but not in an electoral democracy like Kenya. When opposition fails in electoral authoritarian settings, it is typically because vast ideological incompatibilities and disadvantages in accessing patronage resources make opposition coordination too difficult. The Kenyan story is intriguingly quite the opposite. Here, opposition falters not because parties coordinate too little, but they seek too much which in the process cause anarchy in the country. If they fail to achieve their political interests they pander their avid supporters to take on the streets where they cause havoc and other acts of insurgencies. For example, the same demonstration organized by Azimio leaders over the high cost of living turned violent where in some instances, anti-government protestors blocked roads with fires, threw stones at police, vandalized both public and private property all in the name of “bringing down the cost of living”. No one has actually ever benefitted from chaos, violence and illegal demonstrations. Also, bringing down the cost of living by having the Central Business Unit in Nairobi on lockdown and rendering several business inoperative is both a travesty and diabolic.
Consequently, the immediate dilemma faced is: how long should opposition parties be expected to act so ‘responsibly’? At what moment should a democracy be adjudged to be sufficiently consolidated to allow for a transition from ‘constructive’ to ‘destructive’ opposition? What extent of abuses committed by the opposition in the name of keeping the government in check should be tolerated by the government fearing that democracy itself be undermined by robust measures? And if such a democracy could not withstand such measures would it be worth saving?
Like I said before, democracy can almost be defined in terms of the existence of an effective opposition.[18] The complex relationships between political parties will do much to determine the quality, and indeed the stability, of the political order. In fragile democracies, both the ruling and the opposition parties may have the capacity to destroy democracy itself. Thus both the balance of political forces and the respective party strategies will be critical in shaping political developments. Therefore, I believe neither radical goals nor extra-institutional strategies adopted by the political opposition in Kenya contribute to democratic sustenance. Together, extra-institutional strategies with radical goals, can have negative consequences for democracy.[19] However, institutional strategies or extra-institutional strategies with moderate goals sometimes pose a small challenge to the government. They preserve the opposition’s legitimacy and reducing the incentives for a repressive response. Extra-institutional strategies in order to remove the incumbent president pose a big challenge. They jeopardize the opposition’s legitimacy and increasing the incentives for a repressive response. Regardless of the objectives, strategies that use elections, Parliament, or courts convey an acceptance of the established channels of conflict resolution. They are, therefore, less threatening for the ruling elite.[20] In contrast, extra-institutional strategies convey a rejection of the established mechanisms to seek redress. They are, therefore, more threatening for the ruling elite. Moderate goals, however, decrease the level of an extra-institutional threat. They thus leave some space to negotiate.[21] In summary, extra-institutional strategies that espouse moderate goals are less threatening than extrainstitutional strategies that espouse radical goals. In the same vein, Article 91 of the Constitution of Kenya[22] proscribes political parties from engaging in or encouraging violence by or intimidation of its members, supporters, opponents or any other person.
Elections, courts, and legislatures provide spaces for the opposition to challenge the incumbent.[23] As long as the opposition keeps some presence in the Parliament, it can delay, modify, and even stop government projects. It can use legislative procedure to obstruct and lengthen the legislative process, endangering bills with legislative deadlines, enhancing public scrutiny, and increasing the probability that friends or foes will modify the bill.[24] Accordingly, contingent on the procedural tools available, even small opposition coalitions can tame and slow down reforms that would allow the government to erode democracy. Even if individual bills pass, this type of obstruction will delay the president’s agenda enough to protect seats in courts and oversight agencies (or at least some pockets of support within these), which will prove useful when more aggressive reforms come along.
If political parties, both the government and the opposition, share power much more widely and promiscuously than expected, the emergence of democratic opposition becomes much more contingent than expected. This scuttling of opposition has deleterious implications for “vertical accountability” and policy responsiveness between voters and politicians.[25] Democracy without identifiable opposition is both paradoxical and problematic. If democracy is to deliver public goods and improved responsiveness to ordinary citizens, it is largely due to party competition and the threat of replacement.[26] Competitive elections are only the beginning; if a president can induce all parties to share power and go into government rather than opposition, then elections will have removed literally no parties from office. Thus this becomes troublesome from an accountability perspective when presidents offer generous power-sharing deals to parties whose popularity is plummeting at the ballot box.[27]
Conclusion and Recommendations
Beyond right and wrong, there is a field.
I will meet you there.
—Rumi
Kenya ought to recognize the opposition party in its Constitution. This will help improve the legitimacy and resilience of the political system as a whole both by normalizing the democratic transfer of power and by giving ‘consolation prizes’ to the losers.[28] In systems where the opposition is recognized, the runner-up in an election does not hold power but can nevertheless enjoy the office, salary, prestige, public visibility and opportunities for influence and patronage that come with being the leader of the opposition. This makes it less painful to accept election defeat, perhaps avoiding post-election boycotts of parliament or street demonstrations.
Although characterized by a clash of partisan politics, democracy also demands a degree of underlying cooperation, mutual respect, forbearance and toleration if the system as a whole is to function well.[29] Parties may attempt to defeat their opponents in elections, but they must not deny their right to exist, nor may they arrest, harass or engage in civil war against them. Taken together, the rules and procedures recognizing opposition rights helps to build a political culture in which government and opposition, majority and minority, although not in agreement, nevertheless recognize each other as legitimate participants in the democratic process, each with its own rights and duties, responsibilities and privileges. This all contributes to the health and resilience of democracy.[30]
As we all know, the essence of democracy, whether fragile or more solid, is, clearly, that responsibility should cut both ways. If Kenya’s opposition party is to boost democratic governance, the rule of law and respect for human rights, they must learn from the experience of mature democracies. The opposition do not have to reinvent the wheel. They should not and must not, repeat the errors of the now mature democracies. Nor should they pursue the slow path of political progress. What is needed in Kenya is learning from the experience of the now advanced democracies with a view to shortcutting the process of democratization. The opposition should therefore accept and carry on their opposition activities in a classical Kenyan rendition of the aphorism “Someone must lose, so someone must go into opposition”.
I’ve learned to resist looking inward, to be frightened of what I might find there. But it’s the best way I’ve found “to be oneself and yet in oneness with others, to feel deeply with all human beings and still retain one’s own characteristic qualities.” Kenyans, just like I’ve learned and acknowledged, should not capitulate to being used as mere pawns to gratify politicians’ egotistical and insatiable greed for money and power. Together we can make Kenya a better place.
[1] See Robert Dahl, “Polyarchy: Participation and Opposition”, New Haven: Yale University Press, 1971).
[2] Elliott Bulmer, “Opposition and Legislative Minorities: Constitutional Roles, Rights and Recognition”, International IDEA Constitution-Building Primer 22, 2021, p. 9.
[3] Elliott Bulmer, “Opposition and Legislative Minorities: Constitutional Roles, Rights and Recognition”, International IDEA Constitution-Building Primer 22, 2021, p. 9.
[4] Constitution of Kenya, 2010, Article 36.
[5] Ibid, Article 37.
[6] Ibid Article 33.
[7] Ibid.
[8] Ibid, Article 91.
[9] Julius Kiiza, “The Role of Opposition Parties in a Democracy,” A paper presented at the Regional Conference on Political Parties and Democratisation in E.A, 25-27/08/2005, Arusha, p 3.
[10] Elliott Bulmer, “Opposition and Legislative Minorities: Constitutional Roles, Rights and Recognition”, International IDEA Constitution-Building Primer 22, 2021, p. 8.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Robert Dahl, (Ed), “Political Oppositions in Western Democracies, (New Haven: Yale University Press, 1966).
[15] Ibid.
[16] Julius Kiiza, “The Role of Opposition Parties in a Democracy,” A paper presented at the Regional Conference on Political Parties and Democratisation in E.A, 25-27/08/2005, Arusha, p 3.
[17] Ibid.
[18] The literature on democracy is voluminous. For a useful summary of the key issues, see J. Arthur, “Democracy: Theory and Practice”, (Andover, Hants: International Thomson Publishing Ltd, 1991).
[19] Scott Gartner and Patrick Regan, “Threat and Repression: The Non-Linear Relationship between Government and Opposition Violence,” Journal of Peace Research, 33 (August 1996), 273-87.
[20] Ibid.
[21] Ibid.
[22] Constitution of Kenya 2010.
[23] Levitsky and Way, 20; Bunce and Wolchik, 15–16.
[24] Herbert D. Oring, “Time as a Scarce Resource: Government Control of the Agenda”, in Parliaments and Majority Rule in Western Europe (Mannheim: Mannheim Centre for European Social Research, 1995).
[25] Dan Slater, “Party Cartelization, Indonesian-style: Presidential Power Sharing and the Contingency Democratic Opposition, Journal of East Asian Studies,18(2018), 23-46.
[26] Ibid.
[27] Ibid.
[28] Elliott Bulmer, “Opposition and Legislative Minorities: Constitutional Roles, Rights and Recognition”, International IDEA Constitution-Building Primer 22, 2021, p. 9.
[29] Ibid.
[30] Ibid.