Power-sharing and the implications for state restructuring in Kenya

While the tensions and apprehension as a result of the post-election violence in Kenya subside, focus is now placed on the newfound relationship between the antagonists during the 2007 elections. More important are the hopes of thousands who have, since the onset of the electoral violence, been displaced and still live in degrading conditions in various camps in the country. Business in various parts of the country seems to be returning 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 began with the commencement of the Bomas constitutional review process, where one position has been against devolution of powers, arguing that having 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 an adversarial approach hijacked the debate, causing a stalemate in finding the best alternative.

Proponents of centralised power failed to justify their position, except for suggestions that devolution is likely to lead to chaos and disunity. They did not state what benefits the country has enjoyed under a system of centralised power 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, leading to the situation of 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 unemployment, in addition to poor roads and 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, the ethnic tensions that have plagued the country for decades are 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 while 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 are 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. Through a process of constitutional changes, the status quo has been entrenched in which an 'elite minority' monopolises state power and resources, in most cases in the name of an ethnic group.

Such contradictions have been exposed in the negotiations on the power-sharing arrangement. There are extremists who have shown, through their power strategy mix, that they do not think about the long-term interests of the entire country; instead, they are focused on short-term benefits and on having 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 potential to defuse the tension around access to and use of state power. All of a 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 ethnic conflicts and political differences over resource allocation and use; as a means of setting up a governing coalition in a context where no political party has won a parliamentary majority; or in post-conflict situations where multiple actors who represent diverse backgrounds seek to control state power. Power-sharing arrangements are also seen as 'multiple vehicles 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.' Power-sharing 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 as having experienced conflicts of a highly intense nature, enormous powers vested 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 a broad-based coalition of significant groups in a political system', in the case of Kenya, it is not a power-sharing or negotiation between 'ethnic minority groups', but among 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 and 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 on paper. This is because the political competition in Kenya has been between the dominant forces against the citizenry, and with the advent of multiparty politics, it has been between political parties that are individualistic and disconnected from the citizenry they claim to represent, even as they exploit or whip up ethnic feelings for political expediency. So what difference would the new power-sharing arrangement make? This scenario raises problems with representation, but also aspects of collaboration and block-building, which could reflect consociational arrangements that take care of the interests of minority groups at the political table.

The Kenya of today demands some level of patriotism and commitment to the principles of effective representation and leadership for change. In order to restore the confidence of Kenyans on leadership and use of power, there is a need to turn the above negative and dangerous trends around, through power-sharing. But this could also be problematic if there will be no equity and fairplay 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.

In this regard, what does the current power-sharing deal mean for the ordinary Kenyan whose life has been disrupted 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 the 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 it is seldom 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 a long-term goal of 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 manipulations of the system to serve partisan interests? What is the role of the citizenry in a process of state restructuring of this magnitude, and during a time of contested legitimacy?

Implementation of the peace accord

It is hoped that the peace accord would be entrenched in the constitution, and that peace would return and some level of democratic governance, equity and accountability would be realised. However, the accord as legally framed does not take into 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 intentionally ignored the interest-ridden nature of parliamentary politics in Kenya, or put their faith in 'stomach philosophy' to carry the day instead of constitutional considerations that matter for the well-being of Kenya and the millions who are a 'minority' in their own country of birth.

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, the land squatters, the voters whose right was violated during the 2007 elections, nor are they for posterity. This could be but a means to solve the differences within the 'elite minority'.

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 forging a national identity. Unrealistic power sharing will not augur well for the 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 the 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 which have deprived millions of Kenyans of the opportunity to realise their full potential as citizens of Kenya. It fails to address the problems of non-democratic governance, politicised ethnicity, and a draconian and defective constitutional order whose beneficiaries are local elites in collaboration with international interests. The deal does not touch on the system of exploitation and expropriation of national resources in the name of millions of Kenyans who toil under harsh labour conditions and are paid 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 is potential for ethnic accommodation due to cross-cutting 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 minority rights are guaranteed. 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, unequal infrastructure development, and disparities in climatic conditions with serious implications for food production or subsistence economy, which is still common in most parts 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 it is only through a broad-based dialogue that the country can chart its way forward in these times of intensified globalisation. Arendt Lijphart maintains that '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 and holds people in power accountable, and in which decision-making is 'consociational' to the furthest extent possible. It is only through centripetalism that all Kenyans would feel that they 'belong', not just in words, but also through actual policies of equity. The ongoing power-sharing therefore needs to look beyond Raila and Kibaki, to focus on improving governance, accountability, equity and national cohesion and foster a common identity. It should also lead to institutional re-engineering to resolve any 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, rethinking of an integrative approach would be a viable option. This 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'. Nonetheless, 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 ongoing power-sharing depends on whether the 'grand coalition' would survive the conflicts of interest and destructive confrontation which have been the hallmarks of Kenyan politics.

Third World Resurgegnce

Antony Otieno Ong'ayo is a researcher in the New Politics Programme at the Amsterdam-based Transnational Institute.