Wednesday, December 19, 2012

Sovereign will cannot be unconstitutional!

By Lukoye Atwoli
Sunday Nation 16 December 2012

Last week, the Supreme Court ruled that the one third minimum gender requirement for elective bodies will be realised progressively, and appeared to give an August 2015 date as the deadline by which legislative and policy steps must be taken to achieve it. In my opinion, this was a ruling that reflected the situation on the ground, even if it can be argued that the judges neglected to go as far as either party would have liked.

A commonly held view was that there would be a constitutional crisis if Kenyans did not elect sufficient numbers of either gender to Parliament, given that the constitution binds us to ensure that our supreme legislative body obeys the gender rule. This raises fundamental questions on the role of constitutions in the governance structures of constitutional democracies.

In my view, a constitution is a statement of intent from the sovereign. In the past, this sovereign would be the monarch whose word was law and had to be obeyed by everyone in the realm. It would be useful to consider a scenario in which a sovereign chooses not to obey an edict he has issued. What would law enforcers do? Would they attempt to compel the sovereign to obey the “constitutional” edict? How would they effect this?

My contention is that the sovereign does as the sovereign pleases, and it is not possible to enforce any law against such a person. In our own constitution, we declare ourselves collectively to be the sovereign. We make and give the constitution to ourselves and to future generations, the same way a sovereign would make decrees to govern the people for all posterity.

Keeping in mind that we cannot compel the sovereign to act in any particular way, is it possible to declare any sovereign action “unconstitutional” or even unlawful? Elections are the most powerful expression of our sovereignty in which we delegate legislative authority to a Parliament we have elected ourselves. Whoever we elect to Parliament represents our sovereign will. In my view, it is therefore ludicrous to argue that a product of a free and fair election could be anything but constitutional!

How, then, can we reconcile our sovereign intention of having fair gender representation in elective bodies with the reality that elections are unpredictable affairs where the people could elect anyone?

In my opinion, we should focus on the process leading up to the election itself. The problem with elections, however free and fair, is that the voter’s choice is restricted to candidates presented by the electoral commission. The commission, in turn, relies largely on candidates presented by political parties. The processes involved in selecting these candidates can be tweaked by legislative or policy measures to ensure that both genders are represented equally among the candidates. This will ensure that the voter has a fair chance of electing either male or female candidates, increasing the probability of achieving the gender requirement.

The electoral commission ought to make rules compelling political parties to have equal representation of the genders among their candidates, and further, to have party lists with such gender representation that it would be possible to nominate only candidates of the “minority” gender should the need arise.

This, in my view, can still be done before the next General Election. 

Dr Atwoli is secretary, Kenya Psychiatric Association and senior lecturer, Moi University School of Medicine.; twitter @LukoyeAtwoli

Sunday, December 9, 2012

Pre-election coalitions represent the Kenyan mindset

By Lukoye Atwoli
Sunday Nation 09 December 2012

Last week we witnessed a spectacle that would be funny were it not for the implications it has on Kenya’s future. Beginning two days to the deadline imposed by the Political Parties Act on the formation of pre-election coalitions, and continuing up to the deadline itself, politicians outdid themselves in the art of crafting alliances.

Within those two days, some of the politicians had held talks with dozens of “like-minded” colleagues, most of whom they had previously sworn never to talk to even if they were left alone in the same room. Many took only a few hours to move from one end of the political spectrum to the other, seeking assurances on their own political futures.

Apart from soaring rhetoric, none of the coalitions have indicated the reasons why they came together, and what they intend to achieve once they win power. We are only being bombarded with platitudes full of empty promises of peace and prosperity. To the objective observer, it seems clear that even without stripping away the thin veneer of pseudo-ideological differences, these coalitions are actually agreements between individuals keen on capturing and retaining power.

The tragedy is that they are presenting themselves as representatives of political parties, and even worse, of their own ethnic groups. This way, it is becoming easy for the voters to tie the personal fortunes of these coalition-builders with their own individual fates, and those of their tribes. The result is utterly predictable. After the 2013 General Election, one “coalition” will win the election, and the others will lose.

Due to the non-ideological emotions being whipped up as the politicians seek coalitions, it is foreseeable that the losing group will raise complaints about the legitimacy of the election. No matter how genuine the complaints will be, supporters of the group will gang up and attempt to stage protests, some of them turning violent. It is possible that the coalescing tribes will think to punish the ethnic “others”, either before or after the elections, by forcefully evicting them from “their territories”, Kenyan code for ethnic cleansing.

If the above scenario sounds familiar, it should be! This is exactly what happened five years ago, with politicians coming together to win and retain power and, in the process, representing themselves as tribal king-pins who could not lose in a fair contest. The result was an election in which victory was claimed by all sides and the rest, as they say, is history.

Perhaps it may do Kenyans well to remind them that the two main “coalitions” presented to the registrar of political parties are not new, and can be traced back 10 or more years ago. The main protagonists in one group were the face of Kanu in the 2002 General Election that was won by Narc. The second group comprises the key members of the victorious Rainbow Coalition, only missing the then presidential candidate, President Mwai Kibaki.

It is my contention that the average Kenyan does not seem to learn from adversity and that, unless something drastic happens, we are due to repeat history in a very tragic manner. Obviously the coalitions being crafted represent the mindset of the average Kenyan, a mindset that has rigged the country onto a one-way track to oblivion.

I hope I am wrong, but I fear I am not. 

Dr Lukoye Atwoli is the secretary, Kenya Psychiatric Association, and a senior lecturer at the Moi University’s school of medicine; twitter @LukoyeAtwoli

Monday, December 3, 2012

PEV a result of our individual votes

By Lukoye Atwoli
Sunday Nation 02 December 2012

Recently, I have had occasion to consider the meaning of the individual vote. It has been argued in the past that one vote is really meaningless and can only go so far in effecting change in society. Similarly, a position is often canvassed that, in times of crises, a single individual cannot do much to stem the hysterical tide, and is often swept along by the masses.

Using the example of post-election violence that rocked our country five years ago, many have argued that despite their best intentions and clear visions of how to react to disappointment in a civilised manner, they could not do much to limit the effect of the violence in their immediate vicinity. Some indicated that they got in touch with those of their friends they thought could make a difference, but the answer they got was a uniform one – “You will probably be spared because you are my friend. But keep your opinions to yourself”.

This argument often wins the day, and the discussion often ends with a shrug of the shoulders in a manner to suggest that not more can be done.

However, this position is not entirely accurate. Psychologists have conducted a series of experiments whose conclusions suggest that although people tend to conform to group norms and beliefs, even if this opinion is at variance with their own beliefs, this spell is often easily broken by at least one dissenting voice.

In one experiment, a group of students were told that they would be asked an obvious question, and that they would give a wrong answer in order to deliberately mislead one of them who was not present at the time. Later, the student who was not present when the instructions were given agreed with the group when they gave the obviously wrong answer.

In a slightly different experiment, after one member of the group gave the correct answer, the “ignorant” one followed suit. Clearly, then, when a large group agrees to do something outlandish, it may take only one dissenting voice to stop them in their tracks.

In my view, therefore, most of what happened in this country after 2008 was a direct result of each of our individual votes. Everything the coalition government has done or failed to do is a result of our preferred choices at the last General Election.

The failure of government to implement agreements it reached with various parties can be traced to each and every vote that was cast in 2007. For instance, medical students at my university were meant to have completed their examinations and to graduate before the end of this year, but this will not happen because lecturers went on strike and had a dispute with the government regarding their salaries and allowances.

Doctors, nurses, teachers and other government employees have recently gone on strike as well, resulting in immense suffering for Kenyans. This suffering and trouble can be traced to decisions made by each and every Kenyan in the polling booth. In short, every vote has consequences, and some of these consequences are deleterious even to the voters themselves.

It is, therefore, imperative that as we make our electoral decisions nationally and in our counties, we keep in mind the very personal results of our decision. 

Dr Lukoye Atwoli is the secretary, Kenya Psychiatric Association and a senior lecturer at Moi University’s school of medicine; twitter @LukoyeAtwoli