http://www.pambazuka.org/images/articles/358/46928powershare.jpgAs Zimbabwe threatens to pull a 'Kenya', this is a good time to consider the implications of the Annan mediated power-sharing deal. Antony Otieno Ong'ayo dissects and weighs the Kenya power sharing deal.

While the tensions and apprehension as a result of the post election violence in Kenya subsides, focus is now placed on the newfound relationship between the antagonists during the 2007 elections. More important are the hopes of thousands who have been since the onset of electoral violence, displaced and still live in degrading conditions in various camps in the country. Business in various parts of the country seem to return to “normal” although large sections of the population are not sure of what will come next? Commentators have pointed to the optimism about the peace agreement between Raila Odinga and Mwai Kibaki; however, less attention is being given to the implications of the deal for governance and state restructuring.

In the recent past, two positions have defined the discussion about power in Kenyan politics. This begun with the commencement of the Bomas constitutional review process, where one position has been against devolution of powers, arguing that two centres of power is not workable. The other view is that devolution of powers is possible within a framework that provides for accountability in the highest office in the land. However interest-ridden views and adversarial approach hijacked the debate hence, a stalemate in finding a best alternative. Proponents of centralised power, failed to justify that position, except for suggestions that doing so is likely to lead into chaos and disunity. They did not state what benefits the country has enjoyed under such a system since independence. Their arguments seem to ignore the historical injustices caused by a presidential system with concentrated powers, a system that took the country through decades of authoritarianism and dictatorship. The previous presidents abused these enormous powers; hence politicised ethnicity that now threatens to tear the country apart. Through their abuse of power, the country continued to experience high levels of poverty, illiteracy and high unemployment rates, leave alone poor roads, lack of health and educational facilities. They used this power to detain opponents and allocate resources in a skewed manner to their own regions. They used the power to employ their own kinsmen in the armed forces, state corporations, and government departments without regard for the multiethnic composition of the country. Moreover if the centralised system was meant for the unity of the country, ethnic tensions that have plagued the country for decades is but a sign that the much touted unity was a coerced unification or a unity/peace that was forced, first by the colonial state and later by the three post-colonial regimes. These regimes did not take into account the institutional and constitutional arrangements that would pull every group towards the centre, but instead, adopted a system which broadly kept them under one (“roof”) territory, at the same time keeping them apart as much as possible. The economic and political marginalisation of certain regions in Kenya is a manifestation that the system was and is still not conducive for a country with a complex mix of diversity.

The common contradictions in the two positions are however inherent in the views of when change is necessary, which is also informed by which “group”, is in power. The attitude in Kenya is that if our man is in power, then nothing is wrong with the system, hence no need to re-negotiate or restructure the state. The malgovernance problem in Kenya, which lies in the elaborate power structure built up around the presidency, is also synonymous with the state structure. This has been done through minor constitutional change that entrenched the status quo in which “elite minority” monopolise state power and resources and in most cases in the name of an ethnic group. During the process there are extremists who have shown through their power strategy mix that they do not think about long-term interests of the entire country, instead, they are focused on short-term benefits and to have a place in the ‘grand coalition’. This rush to create positions without reflecting on how the very institutions could serve the country well undermines their potentials to diffuse the tension around access to and use of state power. All over sudden, both the opponents and proponents of centralised power are “silent”, and are not questioning the implications of this new arrangement for “national unity”. Therefore would the 2008 Bill be that different from its predecessor bills?

The concept of power sharing has been used in many contexts as a response to conflicts ranging from ethnicity, political differences of resources allocation and use, a means of setting up governing coalition in context where political parties have failed to win majority seats in parliament or in post-conflict situations where multiple actors who represent diverse backgrounds seek to control the state power. Power sharing it is also seen as “a multiple vehicle to create broad-based governing coalitions of a society's significant groups in a political system that provides influence to legitimate representatives of minority groups." It is also described as “a strategy for resolving disputes over who should have the most powerful position in the social hierarchy”. But it also implies a joint exercise of power where such an agreement is reached. While Kenya cannot be described as a deeply divided polity or experienced conflicts of a highly intense nature, enormous powers in the presidency have been used to “command monopolistic access to available resources, to employ violence and exclusion to safeguard interests”.

RELEVANCE IN THE KENYAN CONTEXT

While application of power sharing agreements might entail “the creation of broad-based coalition of significant groups, in a political system”, in the case of Kenya, it is however not a power sharing or negotiation between “ethnic minority groups”, but between an “elite minority”. The majority of “minority groups” that would have qualified for consideration under this conception are not part of the deal being signed in Nairobi nor are they represented in any way. For instance, those minority groups that are politically and economically marginalised, such as the Ogieks, Jemps, Rendile, are not represented in the process. Instead, we see some form of representation based on “political parties” even though some of them have no “official structures” other than in paper. This is because the political competition in Kenya has been between the dominant forces against the citizenry, and with the advent of multiparty, it has been between political parties that are individualistic, and disconnected with the citizenry they claim to represent, while at the same time using or whipping ethnic feelings for political expediency. So what difference would it make with the new power-sharing arrangement? This scenario raises problems with representation, but also aspects of collaboration and block building, which could reflect consociational arrangements that takes care of the interests of minority groups at the political table.

In the foregoing, Kenya of today demands some level of patriotism and commitment to the principles of effective representation and leadership for change. In order to bring back the confidence of Kenyans on leadership and use of power there is need to turn these negative and dangerous trends around, through power sharing. But this could also be problematic if there will be no equity and fair play through properly constituted institutions of the state. Turning the current volatile politics into a more amicable order is crucial, because a less conflictual politics would lead to and prompt elite disposition towards political accommodation and adoption of non-majoritarian political arrangements. Therefore what does the current power sharing deal mean for the ordinary Kenyan whose life has been disrupted or cut short by the police bullet, gang machete, or tribal fire? What are the long-term implications of this re-negotiation for governance in Kenya? What precedence would it set in the context of contested election results in the future? From a political and constitutional law perspectives, many important questions have not been asked while there is a rush to return to “normal” life. High hopes have been placed on the deal between Raila and Kibaki, but not much is asked whether it is the medicine Kenya needs for the many constitutional and institutional defects and deficiencies, that have plagued the country for decades. It is therefore crucial to question whether the deal is a step towards deal a long-term goal to devolution of powers or decongestion of the system from Presidentialism, which has been at the core of governance deficiency in Kenya? Is the current power sharing deal any different from previous manipulation of the system to serve partisan interests? What is the role of the citizenry in the process of state restructuring of this magnitude, and during a contested legitimacy?

IMPLEMENTATION OF THE PEACE ACCORD

It is hoped that the peace accord, would be entrenched in the constitution, peace would return and that some level of democratic governance, equity and accountability, would be realised, however the accord as legally framed does not take into the account the stability, cushioning and democratic governance role of the very institutions it is creating. The bill provides for the “insertion” of a new section into the constitution but at the same time (in section 15 A (3) (a) provides for its termination at the whims of the parliament. Here too the drafters either intentional ignored the interest-ridden nature of parliamentary politics in Kenya, or potentials for “stomach philosophy” to carry the day and not constitutional considerations that matter to the millions of impoverished Kenyans. With such discrepancies, implementation of the accord might not entail the prospects for fostering a durable peace or devolution of powers that many Kenyans desire. This is because the “deal” and the “bills” are not about the internally displaced; land squatters, voters whose right was violated during the 2007 elections, nor it is for posterity, it seems to solve the differences between “elite minorities”.

Another concern is the way in which various groups are making claim to diverse stakes. Power sharing often includes reviewing such key institutions as “federalism and the devolution of power to ethnic groups in territories that they control; or providing for minority vetoes on issues of particular importance; grand coalition cabinets in a parliamentary framework, and proportionality in all spheres of public life such as budgeting and civil service appointments”. Taking this path in Kenya has implications for “ethnic” re-orientation” in the face of state re-negotiation and could present further obstacles to reconciliation, national cohesion and efforts towards a national identity. Un realistic power sharing will not augur well for development of issue oriented political parties since “ethnicity” and other particularistic considerations would come first in the national psyche. All signs point to some kind of elite mobilisation, bankrolling and interference with state apparatus to bolster their power at the centre, which is currently being negotiated. Therefore if power sharing is done with these factors as the underlying forces, then it will “reinforce the ethnic divisions in society rather than promote cross-cultural understanding”

The power-sharing deal also falls short of addressing the very factors that underpinned the post-election violence namely the decades of political and economic marginalisation, and the deprivation of millions of Kenyans, spanning generations to realise their full potentials as citizens of Kenya. It fails to address the problems of non-democratic governance, politicised ethnicity, draconian and defective constitutional order whose beneficiaries are local elites in collaboration with international interests. The deal fails to address the system of exploitation and expropriation the national resources in the name of millions of Kenyans who toil under harsh labour conditions and dehumanising wages. It also fails to address the relationship between various institutions within the broader governance structure that could directly link and relate to local needs, participatory democratic processes and decision-making.

POINTS FOR REFLECTION

The contents of the accord could still be fine-tuned to give it substance, through an integrative approach, to “eschew ethnic groups as the building blocks of a common society”. Power sharing in this direction can entail re-designing of the institutional and constitutional frameworks to provide for "centripetalism," whereby political dynamics are engineered in a “centre-oriented spin”. Examples include “multiethnic political parties, electoral systems that encourage pre-election pacts across ethnic lines, non-ethnic federalism that diffuses points of power, and public policies that promote political allegiances that transcend groups”. Recent political realignments have shown that there are potentials for ethnic accommodation due to crosscutting interests.

Another consideration is for the power sharing to move towards a group block building approach, a form of “consociationalism” in which there is an accommodation of the various “ethnic-groups” at the political centre and guarantees for minority rights. Such an approach might not necessarily lead to demands for autonomy because the interdependency of the various regions and groups within Kenya would not allow such a framework to function. This interdependency is caused by unequal availability of resources, un-equal infrastructure development, and disparities in climatic conditions with serious implication for food production or subsistence economy, which is still common in most part of Kenya. However a consociational arrangement could also lead to an outcome that “reflects the divisions in society but fails to provide incentives for building bridges across community lines”, hence the need for a framework, that encourages the various groups to identify with the state. This is also possible if the institutional framework and constitutional dispensation provides for receiving “something” back from the state regardless of “ethnicity”.

A "consociational" framework could also encourage collaborative decision-making, policy formulation and budgetary allocations that reflect the diversity of the Kenyan citizenry. The reality is that only through a broad based dialogue that the country can chart its way forward in these times of intensified globalisation. Arendt Lijphart maintains, “consociational democracy is the most viable structural model of politics for multiethnic societies”. But this is only possible if there is a political will, combined with the “will of the capital”, foreign forces and interests. Crucial at this juncture is a system that provides for institutional independence, holds people in power accountable and that decision-making is “consociational” as much as possible. It is only through centripetalism that all Kenyans would feel that they “belong” not just in words, but also through the policies of equity. The on-going power sharing therefore needs to look beyond Raila and Kibaki, focus on improving governance, accountability, equity and national cohesion and foster a common identity. It should also lead to institutional re-engineering to cater for governance conflicts. Although there exists a contrary notion that “fundamental conflicts in segmented politics cannot be solved by constitution writing and constitutional engineering”, it is also recognised that “rules can restructure a political system and cause changes in the game where there is some determination to obey the rules”.

Finally, re-thinking of an integrative approach would be a viable option. These would include “making persuasive appeals to people on the other side (usually focused on common values, goals, or needs), offering apologies and/or forgiveness for past deeds, seeking areas of commonality, reversing the de-humanisation process and building trust with opponents”. Integrative options are noted to be “less expensive to implement than force based options, and they are often more successful, as they do not generate the level of resistance and backlash that force often does”. Non-the less, how and whether the process will be taken seriously is a matter that heavily depends on the contents of the peace accord, its implementation, and acceptability by the citizenry. The success of the on-going power sharing however depends on whether the “grand coalition” would survive the conflict of interest and destructive confrontation, which are the hallmarks of Kenyan politics.

*Antony Otieno Ong’ayo is a researcher at the Transnational Institute, Amsterdam.

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