KENYA’S TOTALITARIAN DRIFT AND JUSTICE ERIC OGOLA’S TOTAL DEMOCRACY

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Walter Khobe

The post-1990s democratisation effort that Samuel P. Huntington christened the “third wave” of democratisation has been marked by the proliferation of hybrid political regimes. In different ways, and to varying degrees, polities across much of Africa, post-communist Eurasia, Asia and Latin America combine democratic rules with authoritarian governance even after the 1990s democratic transitions. The expectation that these countries in transition would mature to complete democracies has been thwarted with the endurance of an authoritarian streak in their governance framework. The co-existence of authoritarianism or at least illiberalism and neo-patrimonialism subsisting alongside electoral competition in these regimes has been labelled “pseudo-democracy” by Larry Diamond in ‘Prospects for Democratic Development in Africa’; while Joseph Richard in ‘State, Conflict, and Democracy in Africa’, calls these regimes “virtual democracy”.

Steven Levitsky and Lucan A. Way in ‘Elections Without Democracy: The Rise of Competitive Authoritarianism’ have on their part baptised these countries “competitive authoritarian” regimes. They observe as follows with respect to the character of these regimes:

In competitive authoritarian regimes, incumbents are more likely to use bribery, co-option, and more subtle forms of persecution, such as the use of tax authorities, complaint authorities and other state agencies to ‘legally’ harass, persecute, or extort cooperative behaviour from critics.”

These characteristics of authoritarian regimes have continued to manifest themselves in Kenya in the year 2018 despite the hope that the country had severed links with such totalitarian acts in 2010. In a fulfilment of the ominous warning by the Jubilee Party Vice Chairman David Murathe in a television talk show in September 2017, that “Kenyans should be prepared for a more lethal, brutal, and ruthless President Kenyatta – benevolent dictator”, February 2018 has seen an eerie reincarnation of the totalitarianism of 1980s Kenya.

On the eve of the “swearing-in” of NASA leader Raila Odinga as the “people’s president” on 30th January 2018, the chairman of the Editors’ Guild Linus Kaikai raised the alarm over government plans “to shutdown and revoke the licences of any media house that would broadcast live the planned ‘swearing in’ of Mr Odinga and his deputy Kalonzo Musyoka”. This was fulfilled the next day when Kenyans woke up to black television screens as government switched off transmission to prevent live broadcast of the Nasa event at Uhuru Park. The situation remained so even after High Court judge Chacha Mwita issued orders “directing the respondents (Communication Authority of Kenya, Cabinet Secretaries Joe Mucheru and Fred Matiang’i, and the then Attorney-General Githu Muigai) to forthwith, restore all television transmissions”.

The disregard of court orders by the Communications Authority was also manifest when it’s suspended Director-General Francis Wangusi was blocked from accessing his office even after the High Court reinstated him pending determination of his case. Mr Wangusi has challenged his three-month suspension by the board. Once again, people believed to be plainclothes police officers barred his entry into the compound.

The switching off of television transmission was accompanied by arbitrary arrests of opposition figures and media personalities on charges and forceful entries into the homes of the government critics to enforce arrest orders, akin to the Kanu era Mwakenya crackdown on pro-democracy activists.

Ruaraka MP Tom Kajwang’ was arrested outside Milimani Law Courts and spent the night in police cells on charges of “being present and consenting to the administration of an oath to commit a capital offence namely treason”. The legislator was later released on Sh50,000 cash bail. The next day, lawyer Miguna Miguna’s home was broken into by police officers who arrested him reportedly for his role in Nasa’s event where he was at the centre of administering the oath to Mr Odinga. The police detained him without trial and in defiance of court orders that he ought to be freed. Instead of producing Miguna Miguna as the court ordered, the government deported Miguna, who has dual Canadian-Kenyan citizenship. Later on, Justice Kimaru ruled that Miguna’s deportation was illegal as the same had been carried out in contempt of the court. Despite several courts orders, Miguna Miguna has been barred by the government from entering Kenya to date.

This was followed with the arrest of Makadara MP George Aladwa. On their part, Linus Kaikai and two of his NTV colleagues, Larry Madowo and Ken Mijungu, were forced to spend a night in the office to avoid arrest after the government stationed plain clothes officers around the Nation Centre to pounce on the journalists for unknown offences. The High Court later granted each of them anticipatory bail of Sh100,000 and barred police from arresting them. As the arrests were ongoing, the gun licences and passports for several NASA affiliated leaders were cancelled and the police officers attached to them withdrawn.

 
These developments which are not new but part of a series of incidents over the past year, such as the shooting of opposition supporters and serial harassment of dissidents has prompted comparisons with Daniel arap Moi’s authoritarianism. Arrests of opposition MPs and suspending the passports of Odinga’s allies are part of a growing crackdown. The latest crackdown began in 2017 with the blatant harassment and intimidation of several Non-Governmental Organisations, by the Non Governmental Organisation (NGO) coordination board and its executive director Fazul Mahamed. Some of the NGOs that have been subjected to arbitrary closures and raids include the Kalonzo Musyoka Foundation, the Kenya Human Rights Commission, African Centre for Open Governance, Katiba Institute, Inuka Trust, and International Development Law Organisation.

In tandem with the crackdown on civil society, governmental institutions that have stood firm in asserting their constitutional oversight mandate have also been subjected legal and budgetary interventions to weaken them. The Office of the Auditor-General and its head Mr Edward Ouko, and the Judiciary through threats to judicial officers have borne the brunt of unilateral slashing of judiciary budgets and threats of parliamentary removal processes.

It would appear that these actions, seemingly a fulfillment of David Murathe’s promise of “lethal, brutal, ruthless, benevolent dictatorship”, are a re-enactment of Kenya’s “totalitarian moments” from the 1980s. Could the events of February 2018 be speaking to the apparent endemic illiberality of Kenya’s political culture? This reluctance to embrace the democratic ethos of the 2010 Constitution and the idea of a constitutional state seems to put to an end the hope that post-2010 Kenya is a post-totalitarian order founded on the rule of law.

It is this commentary’s major aim to remind Kenyans that it would be dangerously complacent to believe that the all-consuming fire of totalitarianism is extinguishable by the enactment of the 2010 Constitution. Such a belief would always be founded in a confusion of totalitarianism with totalitarian rule. Even in a country that harbours the most advanced and sophisticated institutions of democracy (and thus guards vehemently against totalitarian rule), totalitarianism will lurk, organise, even proliferate. As Elisabeth Young-Bruehl puts it in ‘Why Arendt Matters: ‘the elements of totalitarianism have continued to be with us, even in the most secure democracies, but they no longer take their mid-twentieth century forms.’

This commentary is grounded on the idea that the Rule of Law is an essential part of the core of any believable theory of democracy. Thus the negation of the idea of the rule of law amounts to positive actions grounded in totalitarianism. Unfortunately, due to the fact that parliament has effectively abdicated its oversight role and in the post-2013 era has morphed into an appendage of the executive branch, it is on to the judiciary that the role of defending constitutionalism, rule of law, and human rights has devolved to. The situation we find ourselves in –abdication of oversight role by the legislature- is comparable to that faced by Colombia in the 1990s, thus the lessons from that country can offer guiding light in these perilous times. The Constitutional Court of Colombia’s response to these dynamics is interesting as it is innovative. The Constitutional Court of Colombia in the famous landmark decision in T- 406 of 1992 rendered itself thus:

The difficulties derived from the unchecked growth of the executive power in the interventionist state and of the loss of political leadership of the legislative organ, must be compensated, in constitutional democracy, by the strengthening of the judicial power… . Only in this manner can a true equilibrium and collaboration between the powers be achieved; otherwise, the executive power will predominate.”

(See generally, Cepeda Espinosa Manuel José, and Landau, David ‘Colombian Constitutional Law: Leading Cases’ (Oxford University Press: 2017)

Thus whenever judges adjudicate on the constitutionality and legality of actions that violate the rule of law in the peculiar circumstances where due to Jubilee regime’s tyranny of numbers rendering the legislature moribund, they must always bear in mind that such actions by the state are grounded on totalitarianism and courts are Kenya’s last hope. It is with this in mind that we need to look at an admirable attempt by Justice Eric Okumu Ogola to conjure a theoretical framework for engagement with totalitarian actions by the state. The rest of this commentary will focus on Justice Ogola’s majestic opinion.

Justice Eric Ogola and Post-2010 Kenya as a total democracy

In a what could vindicate Levitsky and Way’s listing of Kenya as an example of a “competitive authoritarian” regime, the recent political wars between President Uhuru Kenyatta and Mombasa Governor Ali Hassan Joho could be argued to portray Kenya as a classic case of a competitive authoritarian regime.

Following Governor Joho’s criticisms of the National Government during presidential functions held in Mombasa County, the National Government embarked on a scheme seen as aimed at “disciplining” the Governor. On 13th March 2017, the President while re-launching the Mtongwe Ferry Services publicly and openly threatened the Governor in the following terms; “Nitamnyorosha, Nitamwangusha…”. These threats set pace for a series of events: Investigations about the Governor’s alleged criminal conduct (4) years before 2017 were revived.  Further there has been escalation of further investigations with a view to charging the Governor with various offences ranging from alleged tax evasion, forging academic documents, robbery with violence, trading in drugs, and a host of others yet to emerge.  In particular the investigations about the Governor’s educational background reached a public comic level. The Governor has been investigated up to the question of the authenticity of his primary school certificates. 

In order to stop state harassment, the Governor moved the Mombasa High Court alleging violation of his rights by the state agencies involved in the harassment. In the ruling by Justice Eric Okumu Ogola, the judge issued conservatory orders stopping the continued state harassment of Governor Joho. In the ruling the Judge makes a profound observation on the promise of democracy envisaged by the 2010 Constitution.

In Hassan Ali Joho v Inspector General of Police & 3 Others, Constitutional Petition 15 of 2017 Justice Eric Kennedy Okumu Ogola in making the landmark ruling states thus:

I wish to echo the wisdom of Chief Justice C.B. Madan in 1986 in the Githunguri case.  The judge operated in a very politically hostile environment, with a restrictive constitution and little or no democracy.  Yet it was still clear to him that Mr. Githunguri’s rights were protected under the then Judicial System of Kenya.  The Judge said thus to Mr. Githunguri:

When you leave here raise your eyes up to the hills.  Utter a prayer of thankfulness that your fundamental rights are protected under the Judicial System of Kenya.”

So also, I say to the Applicant thus: Hassan Ali Joho! Lift up your eyes, and thank your God that Kenya is now a total democracy. Your fundamental rights are secured under judicial system of Kenya.”

In opining that Kenya in the post-2010 era is a “total democracy”, the judge is contrasting the post-2010 and the pre-2010 era. In an earlier opinion, Justice James Otieno-Odek had observed that the pre-2010 era was marked by “totalitarian values” in The Judicial Service Commission, The Secretary, JSC vs. Hon. (Lady) Justice Kalpana H. Rawal, Civil Application No. Nai 308 of 2015 (UR 263/2015). Odek pointed out the totalitarian ethos of the pre-2010 dispensation thus:

The Bill of Rights in Chapter 4 of the 2010 Constitution is progressive and acknowledges that rights and fundamental freedoms belong to each individual and are not granted by the State. (See Article 19 (3) of the Constitution). The Bill of Rights is transformative and contemporary and for this reason, there is need to rethink the relationship between the old constitutional order resplendent with its case law and contrast it with the values and principles embodied in the transformative 2010 constitutional order. ……….Anarita was decided under the old constitutional order that was grounded in totalitarian values where fundamental rights and freedoms did not belong to the individual but were granted by the State. Save for historical narrative of the origins of the rights of appeal in Bill of Rights litigation, I refuse and decline, even if I am alone, to be the judge who exhumes and revives the principle in Anarita Karimi Njeru case (supra) as representing the law in Kenya today after promulgation of the 2010 Constitution.”

This idea of “total democracy” invoked by Justice Erick Okumu Ogola finds resonance in Austrian novelist and philosopher Hermann Broch’s political and legal theory. The overall goal of Broch’s politico-theoretical programme is to understand and subsequently fight the mass aberration of totalitarianism. Broch argues that the ultimate goal and vision of contemporary political theory, is the establishment of a ‘total democracy’. The call for such a totalitarian alternative to totalitarianism may appear paradoxical. The idea is that democracy must be total in the sense that it becomes the new central or centripetal system; and it must be total in a sense that is not repressive but open.

Broch’s theoretical model aims to prevent the disintegration of values from turning into irrational totalitarianism. Broch places democracy centrally in this endeavour. Indeed, he argues, it is crucial to instigate a strategy of political conversion through which democracy becomes the new centripetal value for society. The totalitarian movements of the 20th century provided ample evidence, however, that existing forms of democracy offer no guarantee against irrational mass aberration. Therefore a new democratic model must be implemented, one that Broch labels ‘total democracy’. As Broch puts it in A Study on Mass Hysteria: Contributions to a Psychology of Politics:

Total democracy distinguishes itself from democracy as practised up to now by an inclusion of the regulating fundamentals into the norms regulating the mutual relations between individuals. Similar to the punitive practice of the Bolshevik or the National Socialist State toward an ‘antirevolutionary’ or ‘anti-national’ attitude respectively, total democracy would have to punish anti-humane behaviour as such.”

What distinguishes total democracy from its ordinary counterpart – and what challenges fascist totalitarianism – is thus that the former ‘would have to punish anti-humane behaviour as such’.

It is therefore arguable that Broch’s model of democracy views the task of democracies as different. In this respect, totalitarianism can be checked by aggressive response to human rights violations. Broch’s theory of “total democracy” calls upon the forces of democracy to protect human life by any means necessary, to out propagandize authoritarianism and to employ all necessary force against those who trespass on the sanctity of human dignity and life. Through legal enforcement of the inviolability of human life, Broch thought he could create a space for critical humanism to grow.

Specifically, Broch claims, total democracy is to be realized through human rights. This for example leads to the ‘pinnacle’ of Broch’s legal theory, which is his critique of capital punishment. Briefly put, since total democracy is based on respect for the human individual, nothing can legitimate the death penalty. (See in this regard, the Hungarian Constitutional Court’s most important judgment, Decision 23/1990 where the Justice Laszlo Solyom led bench famously abolished Capital punishment  for being unconstitutional in Hungary on 31 October 1990) Death penalty signifies on the contrary an atavistic return to a magical order that sacrifices humans; and precisely such irrational rituals need to be replaced by rational legal norms in the democratic society that Broch envisions. His understanding of human rights not only contradicts capital punishment, it also implies that no ‘lawless enclaves’ can be allowed. No human can be denied its legal status and hence no extralegal subjects, no illegal combatants, are tolerable in Broch’s system. Moreover, no homo sacer whom everyone is ‘permitted to kill without committing homicide’ must exist. (See in this regard: the work of the Italian Philosopher Giorgio Agamben ‘Homo Sacer: Sovereign Power and Bare Life”)

Furthermore, at the foundation of Broch’s political theory is a desire for security of the individual. He argued that only in a democracy would the totalizing value system be open and designed to promote individual freedom. Totalitarianism, on the other hand, used its value system to close off individual freedom. The freeing of the individual would involve more than a declaration of his or her inherent freedom, but also an active policy for the protection of his or her material and psychic condition. He observes:

Masses do not seek absolute freedom; security is the goal of their specific pre-panic. Only the individual strives for liberty. Consequently, total democracy has to provide the masses with the maximum of security (economic, social and psychical) in order to extricate the individual from the mass, and to let man share the maximum of democratic freedom.”

This quote captures, implicitly and explicitly, the key elements in Broch’s political theory: irrational mass aberration can only be fought effectively if a total democracy is established. Such a total democracy must rely on a rational legal system which has as its principal goal to punish any acts and utterances that violate human rights. And human rights are nothing but the legal expression of what for Broch should constitute the new “absolute” value in modern society. In Broch’s view democratic societies offered the most humane and ethical principles for allowing the individual the freedom and autonomy to act or negotiate their social world.

Conclusion

Broch in conceiving the idea of “total democracy” was reacting to the experience of totalitarian political movements that destroyed democratic systems, through the deployment of state machinery, secret police, and concentration camps as the three columns of totalitarian rule. This sounds eerily familiar to Kenyans who lived through the one party state in the 1970s and 1980s. The “never again” vow that Kenyans made in 2010 informs the telos of the 2010 Constitution. Like Broch, it can be argued as Justice Eric Okumu Ogola argues in the Hassan Joho case, that the 2010 Constitution as a “reactive” charter is a “never again” call against to the degradation, deprivation of human rights, and inhumane torture during the totalitarian pre-2010 dispensation. Thus like Broch, Kenyans have affirmed that the respect for human rights has to be considered an “earthly absolute.” Insistence on the acknowledgement and respect for human rights should help prevent relapse to the totalitarianism of the pre-2010 dispensation that the Jubilee regime seems to yearn for.