Strange are the times we’re living through. In matters of democracy, they feature many novel and contradictory global trends, none quite so potentially fractious as the political tension between majority rule government and public struggles to restrain and humble lethal forms of arbitrary power.
Wherever monitory democracy takes root, these two sets of principles, languages and practices typically co-exist, intermingle and overlap. They functionally require and energise each other. Governments based on majority consent and the humbling of arbitrary power seem to be twins. Democracy means nothing less than fairly fought elections and much more: citizens’ freedom from publicly unaccountable power. Truth is the two axioms have different histories, contrasting dynamics and, in practice, potentially contradictory effects. The tension between majority rule and public resistance to arbitrary power can end in tears, or produce explosions. When the different visions of what counts as ‘democracy’ clash and collide, public disaffection, fear and violence may be the result.
Consider the case of Kenya, and its currently disputed election results. Uhuru Kenyatta claims to have won a 50% majority. On the current hotly-disputed figures, he averted a run-off by a 0.07 per cent margin. There were only 8,418 votes in it - out of some 12.4 million cast. Supporters of Kenyatta have welcomed their paper-thin victory as confirmation of the principle that in a democracy ‘the people’ should decide who is to govern them. What they really mean by this is ‘a majority of voters’, which is not quite the same thing. When voting is not compulsory, a majority of voters can mean an overall minority of citizens. Why ‘the majority’ should decide the government is unexplained. The reasoning is both metaphysical and pragmatic, and is backed by the presumption that there has to be a way of forming governments, and majority rule is the simplest, cleanest way to do it.
Supporters of Kenyatta understandably don’t worry their heads about the history of democracy, which shows in fact that the majority rule principle has often been dogged by objections, and by practical efforts to prevent the ‘tyranny of the majority’: the restraint of majority-supported governments from getting the upper hand and abusing their power, at the expense of loser minorities. The age of monitory democracy is full of examples of these restraining and enabling mechanisms, ranging from written constitutions, local tribunals and judicial review to public enquiries, disability access and guaranteed rights of linguistic, ethnic, sexual preference and other minorities.
Although they, too, are committed to their own version of majority rule, the supporters of Raila Odinga are in effect bound together by their objection to the divisive and dominating effects of majoritarianism. Understandably, they are fussing about the serious administrative flaws within the election. A finger-scan biometric identification system designed to eliminate multiple voting failed. Turnout exceeded 100% in scores of polling stations. There were no fewer than three different voter registers in use. Results forms were altered using correction fluid, or pen. Party observers were thrown out of counting rooms. A new electronic method of cross-checking paper results collapsed mid-way through the vote tally. You get the picture. That’s why Odinga has hired George W. Bush’s former lawyer (William Burck) to challenge the presidential election results in the Supreme Court of Kenya. What’s interesting is that Odinga and his followers object to more than electoral malpractice. By their actions, they are appealing to a monitory institution, the public courts, to review the disputed election result.
Seen in their way, democracy is not psephocracy. It is more than just a fair and free election. It is a manner of handling power in which elections and governments are themselves publicly scrutinised by unelected, but respected and ‘authoritative’ institutions, such as courts. Odinga and those who voted for him are of course motivated by a wide variety of material interests, including tribal rivalries. Yet their appeal to the courts has a higher democratic meaning: for them, democracy means respect for diversity, pluralism, the reduction of bossing and bullying and violence, wherever and whenever it happens. Democracy is a system in which nobody is entitled to preach soliloquies from the pulpit, pull strings in private or sit pompously on the throne of power.
Something else is happening in the Kenyan election drama that compounds the deep tension built into the ideal and practice of monitory democracy: the involvement of a distant court, the International Criminal Court in The Hague, as a co-determiner of decisions about who governs Kenya. Court documents suggest that during the violence that racked Kenya during and after the last election in 2007, Kenyatta contributed money and other forms of support to a murderous Kikuyu gang known as Mungiki. Legal opinions are divided about whether or not the case is watertight. Regardless of the details, the decision of the court to put Kenyatta on trial in July 2013 is not simply a wilful and unwarranted European interference with the ‘will of the people of Kenya’, as many supporters of Kenyatta say. It is instead symptomatic of an historic and probably irreversible political trend of our times: the spread of cross-border mechanisms of publicly scrutinising and restraining arbitrary power, sometimes from great distances. If democracy is understood in old-fashioned terms as popular self-government within the boundaries of a territorial state - as it was typically understood in the age of representative democracy that lasted until the end of the 1930s - then there is a problem. Outside interference with the ‘sovereignty’ of the state is deemed illegitimate. That’s how Kenyatta and many of his supporters see things. But if democracy means the public restraint of arbitrary power by a variety of power-chastening mechanisms, even in cross-border settings, then there isn’t a problem, only a practical matter of how to resolve the grinding frictions between two principles that lie at the heart of monitory democracy.
So what is to be done to overcome this political friction in Kenya? The short answer is that there are no ready-made textbook solutions. Either manipulative bully tactics or democratic compromises will decide this one. That’s why it’s much too easy, muddled and practically divisive to say that the People of Kenya should decide who governs them. That is the Mugabe option. Curiously, Barack Obama said much the same thing in a video message to Kenyans before the election: ‘The choice of who will lead Kenya is up to the Kenyan people.’ Never mind that the fading democratic empire he leads is interested less in democratic principles and much more in the fact that Kenya is a vital hub for U.S. corporations, billion-dollar health programs, hunting down militant jihadi cells and countering rising Chinese influence in the region. For it turns out that talk of ‘the People’ is a performative trope, a cunning fiction designed to stir hearts and numb brains and to ensure that a power grab looks legitimate, even though well over half the flesh-and-blood people of Kenya have not sanctioned the appointment of Kenyatta (turnout was a remarkable 86% of eligible voters, but that means that Kenyatta has the support of 43% of Kenyan citizens).
The local lambasting of ‘unelected judges’ is part of this populist trope. Judges are appointed, not elected. They can of course be corrupted. Judges often get things wildly wrong, sometimes with seriously unjust consequences. Yet it has to be said that in the age of monitory democracy, there are times when public appeals to written constitutions, wise judges and professionally-run courts, wherever they’re located, are vital for the health and strength of democracy. By forcing a public rethink and reversal of bad decisions or unfair outcomes, they restrain arbitrary power. They serve as a healthy corrective to the dangers of psephocracy.
This is certainly such a moment in Kenyan politics, but whether a working compromise between majority-rule government and the refusal of arbitrary power will prevail during the coming weeks and months is for Kenyan citizens, politicians and big-men ‘stakeholders’ and local and global judges to decide. Lives and livelihoods are at stake. It is not lost on Kenyans that a return to violence would have catastrophic consequences for the whole country. A lot of banding together must now happen. A new spirit of democratic compromise is vital.
The willingness of President-elect Uhuru Kenyatta to listen to public criticism, and to learn from it, is undoubtedly vital. He’s clearly attracted by red carpets, fancy hotels and the trimmings and trappings of power. Here’s a quick taste:
So there’s a real danger that he will come to resemble The Ruler who transforms himself into a massive floating being who has to be tied down to prevent him drifting up into the sky (a figure featured in Wizard of the Crow, the wonderful satire on power by Kenyan novelist Ngugi wa Thiong'o). It’s a good sign that Kenyatta has pledged to respect the findings of the constitutional commissioners who are now examining evidence of electoral malpractice. Let’s see whether word and deed are matched. On the outside legal front, it’s also encouraging that Kenyatta, unlike Sudan’s Omar Hassan al-Bashir, the first African head of state to face charges in The Hague, has in effect already acknowledged the democratic principle of rule of law across borders by attending the court to defend himself. Kenyatta and his running mate (William Ruto) still vow to ‘cooperate with international institutions’. More than likely, during the coming months, the ICC case against both of them (Ruto is due to appear in May) will fade. If necessary, their lawyers will string out proceedings for years.
That leaves the vital question of whether Kenyatta is capable of governing fairly, openly and with a sense of democratic justice. A few days ago, in an open letter to Kenyatta, a writer in Nairobi’s Standard captured exactly the challenge facing Kenyan citizens and their representatives. ‘It is a changed world’, the letter began. ‘Now people know how to say things like, Haki zetu! ['Our Rights’ in Swahili]!‘. Then they only said, “Hail His Excellency the President.” They called people like your late papa names like, “Farmer No. 1, Wiseman No. 1, Philosopher No. 1,” and that kind of cock and bull.’ Warning of the dangers of turning Kenya into ‘a ragtag of mutually hostile warlike tribes that bay for each other’s blood’, the open letter concluded with friendly advice about the coming period: ‘It is going to be different, Sir. I sincerely trust you do not believe in that bosh of “Wiseman No. 1”? For if you do, then you are set for a very rough ride. People now know how to stand up for their rights. They will stand up to you. In very clear language, they will tell you, “No!”