KENYA: The New Crossroads
“There is a tide in the affairs of men which,
taken at the flood, leads on to fortune.....”,
Brutus in “ Julius Caesar” by William Shakespeare.
The quotation above relates to a statement made by Brutus, a protagonist in Shakespeare’s play “Julius Caesar” about the imminent break-up and civil war in Rome during the reign of Julius Caesar. That play was my entry into the world of literature as a high school student and, through it, I was hooked for life.
For those denied by our current education system about the joys of literature, the play was about the shenanigans going on in Rome led by a group that was opposed to the reign of Julius Caesar who was seen by some of the senators as being a dictator. A rebellion, led by a crafty senator known as Cassius, was organised through which Caesar was assassinated and power taken over by this group. He had managed to conscript through persuasion one of the most powerful senators named Brutus who used to be a staunch Caesar supporter.
After the assassination, the country went into civil war with Cassius and Brutus taking leadership. But, out of the woods came one of Caesar’s stalwart generals called Mark Antony who became the force against the new tyranny. The rest of the story is available to the modern reader through google and youtube and those interested can read it or watch it.
Relevance to Kenya
It seems to the avid watcher of current events that our motherland is in a pretty similar situation as that prevailing in Rome those many years ago although comparison with the mighty Roman Empire is far-fetched. But, it is the lesson that matters not the size of the cake.
My take is that Kenya has been an “enfant terrible” right from the time it was created by Britain in 1895. It was a tough one to assemble and the Brits realised that the lines drawn later to create its boundaries was a veritable nightmare thanks to the mishmash of the natives living inside those borders. In trying to contain and unify them, they made many terrible blunders which our able historians have been unable to tell us about. We consequently developed like a body with 42 organs each of which was unwilling to talk to the other parts believing it was the most important.
When finally Britain gave us up in 1963, it was with a sigh of relief as it were. They actually gladly gave it back to us and have been watching gleefully from Whitehall to see what kind of nation we will be able to craft; for them, it was like giving for adoption a child with many disabilities and dysfunctionalities.
Fast forward to the late 1990s. A few concerned Kenyan academics and professionals crafted a book titled “Kenya at Crossroads”. It is still available for those who are still literate enough to read it. It was based on four scenarios of what might happen to the country in future. One of those scenarios is what we are currently going through.
Post New Constitution Crises
It is no secret that the 2010 Constitution came with many opportunities but also numerous challenges. It is not my forte to talk about these as there are many able souls who have been doing so with considerable agility.
I will focus my attention on a subject I am least qualified to talk about as it is populated by many brilliant minds and, alas, an alarmingly high number of scoundrels and scallywags as well. This is our legal fraternity.
Anyone who watched the proceedings of the presentations of the current elections petition of 2017 must have been amazed at the legal battalions set up to defend the protagonists in the petitions dressed in their assorted black robes and white wigs. The seven-member bench was equally resplendent in their black robes and red/white sashes and by the way they dramatised their entrances and their exits. Absolutely fascinating.
But one thing that perhaps escaped the attention of the casual observer is that they were ALL members of the same profession: Law. Some stood for the accused, others for the petitioners, others were called “amicus curiae”, friends of the court, and of course there was the Bench itself led by the Chief Justice. All of them “learned friends” talking the same language some of them being pupils of others who were their teachers or masters. In fact, all the judges have law degrees from the University of Nairobi. A really strange modern convocation talking, at times, about a subject many were not comfortable with – electronic electoral data transmission. A truly weighty matter.
The Supreme Court’s Judgement
The verdict by the Supreme Court was the most interesting part of this melodrama. Four were for it, two were against it, while one was, mercifully for him, unwell and so unable to make a judgement. Curiously, he was the only apparent Muslim in the group and since judgement day was on the day of Eid-ul-Adha, a holy day in that religion, he was rescued by fate. But no matter.
Kenyans and the world are still trying to come to terms with the ramifications of the verdict the centre piece of which was whether the election of the president reflected “the will of the people”, etc. As a student of philosophy, I find that statement an exercise in futility for two reasons.
One, it has been proven mathematically that it is not possible to aggregate individual preferences in order to produce a national consensus (Kenneth Arrow). In our case, it is a patent absurdity because of our cultural diversity. Given that situation, the only rule to resolve the problem is a compromise: the democratic principle of majority – the 50% +1 rule.
Two, logically, for that rule to apply, every single vote matters in its absolute purity, i.e., it must reflect the voter’s choice. No more, no less. Assuming that every voter made their choices voluntarily, the job was really for the IEBC to do a simple arithmetic addition. This does not even require a calculator leave alone a computer.
The sting in the tail is, in my view, quite simple: the individual voter must have a right to find out, if necessary, the fate of his/her vote in the final tally. Technically, this is an elementary process: just let me trace the route my vote took from the polling booth to the final tally. If I cannot find it and I know that I voted then, ipso facto, the whole process is flawed. If you don’t believe it, just ask a German philosopher called Karl Popper on the principle of falsifiability.
The verdict by the learned judges was therefore logically consistent the numbers notwithstanding. All they needed was one unaccounted-for vote to nullify the whole process. And therein lies the fallacy of democracy and its midwife, the electoral process. And it is simply this: If you are dealing with a fundamentally flawed product (democracy), does it matter how you go about proving it right or wrong? The dissenting judges therefore had a point: just because you found that there was one goose that was NOT white, do you condemn the entire kingdom of geese? And worse, who will bear the cost and the consequences of that decision?
My own view is radical: Democracy and its attendant institutions and fallibilities have outlived their usefulness in a world where technology can even make better judgements than human beings – a computer recently beat Gary Kasparov in chess. If we can take a man to the moon and back and even discover a new galaxy called Sombrero that is 28 million light-years away, surely we can reinvent democracy which was created by Greeks and refined by Romans just 3,000 years ago.
As a passing point, the Supreme Court was ably advised about their new role by one of their truly learned friends, Fred Ojiambo, on 14th November 2016 when the new court was being inaugurated. They were forewarned and therefore forearmed.
Finally, maybe, Kenya can show the way out of the democratic mess just like Mark Anthony did when he trounced the assassins of Julius Caesar.
Big question is: Does our legal fraternity have the have the capacity or the will to do it given their past reputation as professionals? Only time will tell.
JH Kimura, PhD.
5th September 2017
It is now clear after two years of melodrama that mine was crying over spilt milk. The harm has been done and there is little that my puny tears were going to do.
As a friend of mine reminded me recently, “if you solve all our little problems, what will our lawyers be eating?
Something to ponder.