PRESIDENT OBAMA AND LEGAL DEMOCRACY
By Justus Atuti
Yes. When Obama said Kenya has a legally elected office in Kenya that he will work with, my reflection went back to them days. Back to the independence days when Johnstone Kamau Wangengi ascended to power thanks to the goodwill of the people, the Kenyans who stood firm that, NO KENYATTA, NO INDEPENDENCE. It brought me all the way to 2002 when the then pentagon united behind the will of Kenyans to remove a legally erected government in power to replace it with a democratically elected one. His words and sentiments reminded me of 2007 when under Mwai Kibaki, Kenya held a legal government in power against the will of the people. This led to the infamous PEV, the violence that has resulted into where we are today.
Kenya is ethnically polarized and is likely to plunge into anarchy if this level of hatred, which has reached its equilibrium, escalates to 2017. Yes. Mwai Kibaki and Kalonzo Musyoka teamed up to make a legal government, legal because the law required one to be sworn in after
Now, looking at 2013,The democratic space under which the Jubilee government was erected to power has remained questionable to this day. Kenyans were betrayed once again. The vote counting and meddling on technicalities did not reflect the will of the people. It reflected the will of the rule of law.
The rule of law and democracy are two separate entities all together, just like heavens and earth. It is a well known factor that there was a lot of rigging done both at the polling stations and midway where some technocratic mutilated results as results came in.
It is obvious that the IEBC Chairman Isaack Hassan meddled in the voting process by denying all Kenyans access to fair presentation through marginalized voting. Some communities had access to more resources while others had barely none. Some communities had more manpower and more control than others. Some communities had a more resourceful voter sensitization and good funding than others.
Even though, Kenyans endured this
level of hypocrisy to bring about a democratic process that was thwarted by the court on legal terms. The Supreme Court under its president, Dr Willy Mutunga adopted the rule of law and helped put in place an illegal government by legalizing the process, by legalizing impunity through the law. Kenyans, in fear of a replica of 2007 PEV, accepted and moved on. Kenyans accepted to move on with an unpopular legal Jubilee government at the expense of democracy.
Back to America where Obama is the president and where his legal term as president comes to an end. Obama was elected for two terms under a clear democratic process, where the majority have a say. The electoral college is so well defined and free of any meddling on any technicalities where each American has a right to one vote and an exclusive right to vote, in a process where every vote counts.
No American vote fails to add a voice to a well defined process, a process free of intimidation. An American wins outright. A win is a win and is always clearly defined. No vote buying. No vote destruction like in Kenya where a politician camps in an area where he is a weak candidate, not to sell his policies, but to buy off the voterâ€™s cards to neutralize his opponent by making the voter powerless and voiceless. Unlike Kenya and all African states where greed and impunity rule, democracy in America gives power to the people.
In Kenya, legality gives power to the politicians who use the same power to grab, steal and misappropriate national resources. This is reason why Uhuru Kenyatta is able to divert national resources to his backyard at the expense of nationalism, and still be able to walk away with it because the legal technicalities have bestowed power on him and not on the people.
In the United States,, democracy clearly links to the rule of law, though not mentioned in her constitution. Rule of law never replaces democracy. But Democracy and the Rule of Law are twins and work together.
Human societies are governed by ethical principles found in nature. The constitution plays a vital role in engraving democracy in any system. The constitution gives answers to many questions of how, when, who, and which people power is given to, as democracies come in many shapes and sizes.
In Kenya for example, Chapter 6 of the constitution on integrity defines clearly who passes the test of integrity to qualify to be an office bearer in the public eye. The supreme court not only deliberately misinterpreted the chapter on integrity, but also gave Kenyans a wrong group of leaders who are well known land grabbers and smart thieves who use a pen and a computer key.
So, when Obama said he will work with a legally erected office in Kenya, I remain to wonder if his words were the words of America, being her president. America believes in democracy and the rule of law. Will America for example, work with ElBashir of Sudan, who won legally by 98%? Will America work with Nkurunziza of Burundi, whose third term is illegal but has been legalized by their courts and parliament anyway?
I would love President Obama to clearly define Democracy and Legality. When Kenyans are denied a democratic space, how does legality replace the nobility of democracy? When and where does legality stop for democracy to start? Where does democracy stop? when does legality start?