In Summary
  • Formal institutions, such as constitutions, only form part of the framework within which we achieve development. There are extra-legal forces: social, economic, and political forces that either enable or hamper development. These forces also determine how economic and political power is distributed.
  • It therefore comes as no surprise to any observer of history that the 2010 Constitution, despite its promises, has performed no different.
  • The BBI, a public exercise, reveals to us the inner workings of extra-legal forces that distribute power. As an elite-bargaining tool, it brings to light the hidden conversations that have decided the nation’s fate since its inception.

  • The State that emerges post-pandemic might be irreparably transformed. It is imperative for the elite to reengineer their conversations towards building a stronger, more durable state, within the framework of the 2010 Constitution. 

In light of the pandemic, this column recently made Louis Pasteur’s argument that the microbe is nothing, the terrain is everything. If there was something that defined the social and political terrain in the country for the months before coronavirus, it was the Building Bridges Initiative (BBI).

The Daily Nation reported that Sh11 billion was transferred from the BBI kitty to the government for its emergency response to Covid-19. In Kenyan social media lingo, reggae had been stopped, albeit as we all know, temporarily.

The necessity for the rule of law is impressed upon us at this time as a result of the manner in which the virus has revealed the State’s glaring weaknesses. It therefore behoves us to look into the BBI, and to contextualise it in Kenya’s rule of law history.

Kenya’s transformative Constitution

On August 26, 2010, Mugo Kibati published an article in the Daily Nation titled: A vision of prosperity for the Second Republic. It optimistically began, “Kenya has spoken. On August 27, the country celebrates the birth of the Second Republic.”

 Mr Kibati continued, “the new Constitution has passed and with it, the old order has come to an end. This represents snapping of the last chains of top-down, discriminatory colonial governance. With this new dawn, Kenyans have overwhelmingly agreed on a new social contract to govern our affairs.”

Those words captured that decade’s zeitgeist. That new ‘social contract’ was part of a wider and more ambitious project in developing countries. Central to the task was to transform the prevailing highly unequal, exclusionary, and often authoritarian societies into more egalitarian, inclusive, and democratic politics.

While constitutions are fundamental as they codify the basic principles that govern a state, these new transformative constitutions across post-colonial states expressed more than a simple codification of basic rules.

Presently, however, the hope at the start of the decade has been replaced with despondency. Initial enthusiasm about the capacity of transformative constitutions to bring about much needed change, including economic equity, seems to be waning. Inequality persists (see figure 1 below) and populist backlash looms large.

Figure 1

Persisting Inequality in Kenya; Not much difference since 2010. Data source: The Gini Index (World Bank estimate)

At closer inspection, while these transformative constitutions spurred a discussion around redistribution of resources from an economic and social rights perspective, they did not encourage one on the economic system in place and the economic institutions that determine initial allocation of resources. Conversations around “economic justice”, “substantive equality” and “democratization of economic power” stalled, and a creeping sense of disillusionment settled in.

For some, our current situation is an indictment of the inability of transformative constitutionalism to achieve any substantial and material change. Now, as a result of the virus, the need to address social and economic inequality is perhaps more dire and the clarion calls for reform, including for the BBI, which positions itself as a solution to our problems, could be louder after the pandemic.

The truth is that formal institutions, such as constitutions, only form part of the framework within which we achieve development. There are extra-legal forces: social, economic, and political forces that either enable or hamper development. These forces also determine how economic and political power is distributed.

According to Douglass North, an economist, law is important in understanding how society operates but almost irrelevant to understanding macro institutional change. Expecting a constitution to transform society and to bring about economic and political change is futile. The context in which that constitution operates; the social, economic, and political forces underlying that society are crucial. It is to these forces that we now turn.

Political power follows economic power

Figure 2(Percentage distribution of income by race in Kenya. Data source: Bingsten (1986))

Political power follows economic power. To understand the economic, social and political forces that underlie our society, we take a look at the historical distribution of economic power in the country. Figure 2 above represents the percentage distribution of income by race in Kenya from the year 1914 to 1976.

The Gini coefficient, also known as the Gini index, is a measure of statistical dispersion intended to represent the income or wealth distribution of a nation’s residents. It is the most commonly used measurement of inequality ranging from 0 to 100; with 0 being perfectly equal and 100 being totally unequal.

While Europeans and Asians enjoyed really low levels of inequality with Gini coefficients of less than 30, the Africans experienced really high levels of inequality, peaking at just under 80 in 1914 and surprisingly again, in 1976. The lack of data could explain why inequality among Africans was seen to be high in 1914. It was understandably, a difficult terrain for statisticians to navigate and their findings at that time are doubtful.

The conundrum, however, is in the steep ascent of income inequality between 1960 and 1976. Curiously, this is the first decade of Kenya’s independence. It is what Mr Kibati would call the beginning of the ‘First Republic’.

The lowest Gini coefficient, in this period, among Africans was achieved before independence in the 1950s after decades of a gradual but steady decline in income inequality. Independence, and the transfer of power to Africans, reversed the trend, with income inequality returning to a peak recorded fifty-five years prior, in 1914, at the dawn of colonial power. To understand this, we look at the rise of a powerful and exclusive elite class.

The Kenyan elite and their consolidation of economic power

Following independence was a robust consolidation of power among those we shall, for the purpose of this article, call elites – defined as those actors with the ability to directly influence outcomes within a given sector or issue.

This article focuses on national elites: those elites who have direct influence over the formulation and implementation of national policy, as well as the rules of the game by which national power is allocated, exercised, and constrained.

These elites employed the inherited state apparatus that was designed to facilitate economic coercion such as labour repression and had been applied to facilitate settler accumulation to create and protect rents for themselves to the exclusion of others.

According to Biniam E. Bedaso, a policy research associate at Economic Research Southern Africa, they also systematically restricted access to capital markets first, through the use of informal networks of institutional investors that had emerged from the colonial system, and then by governmental institutions such as the Capital Issue Committee.

The state machinery was also used to ensure exclusive access for the new rulers in trade. The control of trade was paraded as the Africanisation drive, which saw the promulgation of the Trade Licensing Act (1967) and the Import, Export, and Essential Supplies Act (1967).

The elites would then share the rents through informal mechanisms such as kickbacks and quasi-formal arrangements – such as Harambee – that they jointly utilised to deliver patronage to their clients. The result is the sort of elite control illustrated in figure 3 below and the increasing inequality post-independence seen in figure 2 above.

Figure 3

Elite control in Kenya. Highest level of elite control in policy is 5 while lowest control is 0. Data sourced from V-Dem database; Dataset version 9.

Figure 3’sgraph ranges from 0 (being the lowest level of elite control) to 5 (being the highest level of elite control). The highest levels of elite control and lowest levels of public engagement were witnessed from 1900 to the early 1960s. These were levels beyond 5; the recognised maximum. The levels of elite control dropped, but not substantially, and then stagnated between the early 1960s and the 1980s where they dropped once more. While elite control declined, it still remained very high, at around 4.5.

The elites’ economic power clinched their control over society. It enabled them to dominate the social and political realms as well. In fact, according to Anyang Nyong’o, a politician and scholar, the elites became adept at using the law, including the Constitution, to contend for power and privileges. They manipulated the law as an instrument to impose their will on the entire polity.

The relatively high number of constitutional amendments, peaking at about ten amendments a year between 1992 and 1997, demonstrates the emphasis those in power put on taking refuge behind the law. Their purpose was single: to preserve and consolidate power and resources among themselves. The law, including the written Constitution, was merely an instrument to this end.

It therefore comes as no surprise to any observer of history that the 2010 Constitution, despite its promises, has performed no different. Consider Figure 3 above. As one would expect, elite control dropped in 2010, recording its lowest level in history.

Perhaps it was the fervour accompanying the promulgation of one of the most progressive constitutions in the world that caused this decline. It was unfortunately short-lived. 2013 saw a steep ascent of elite control, back to levels seen previously, in the 70s. 

Elite and neo-elites clash and the BBI

Elites and Covid-19 have many things in common. They both spread far and fast, and they are incurable, though we may survive them. Our political discourse so far has been focused on identifying elites with looted state resources, which happened over a long period of time, long ago. This perception is misleading. Today, we have neo-elites. They are born every day, when leaders ransack the public coffers and the coffer itself in record time, becoming rich without being able to justify the source According toV-Dem data, Kenyan elites consist of party elites and business elites. They are composed of a small minority, consisting of members of the economic elite and policy-planning networks. Their power is independent of democratic elections. They are not, as one may think, isolatable. They all, however, enjoy immense economic power, exert it over corporate and government decisions and hold a disproportionate amount of wealth, privilege, political power, or skill in a society.

Elites are expected to work in tandem. The concentration of power among them demands that they are unified against a powerless and diverse non-elite majority. Without this unity, they are easily divested of their power. Of interest, is that the resurgence of elite control post-2013 happened within a really fractured and fragile elite setting. The graph below illustrates the reason why.

Figure 4

Population in the regime’s supporting group (0 being very exclusive and 4 being very inclusive) and elite justification for their policy decisions (0 being no justification to 3 being sophisticated justification). Data sourced from V-Dem database; Dataset version 9.

For elites to maintain their hold on society, they need to come to a consensus on how to distribute power and privileges among themselves. This creates a stable environment where they rule over the non-elite majority.

Elite cohesion in Kenya is however tenuous. Despite the various networks of power that exist in the country today such as education and social classes among others, the main traditional network of power in Kenya is ethnic. This factor tends to fracture elite unity frequently.

Consider Figure 4 above. The elites’ inclusion of the population among their supporting group is up to 3. 7 out of 4 which indicates high inclusivity. Elite justification for policy decisions is, nonetheless, still low, at 2.

One would expect that elites registering such high population support would have to offer sophisticated reasons for their actions; represented as 3 on the chart. In Kenya, these elites only offer at best, a single simple reason justifying why the proposed policies contribute to or detract from an outcome.

The reason for this irony is that elite support in the country is ethnic – meaning that support for the elite is guaranteed. With guaranteed ethnic based support, there is little to no need for elites to justify their reasoning. In this environment, it is easy for the national elites to incite violence, or cause instability during transitions as support is certain.

The solution among elites, therefore, is to negotiate and arrive at a deal-based bargain for stability. Before, such negotiations were conducted privately yet we saw their effects in public such as the NARC memorandum before the 2002 elections.

Increasing elite power in a fractured elite setting results in agreements such as the 2008 power-sharing agreement and the BBI today which occurred following the elites’ failure to arrive at a negotiated settlement prior to the 2007 elections and 2008 power sharing agreement, respectively.

The BBI, a public exercise, reveals to us the inner workings of extra-legal forces that distribute power. As an elite-bargaining tool, it brings to light the hidden conversations that have decided the nation’s fate since its inception.

Perhaps there is something laudable about the new way to do deal-based elite bargains. The BBI has, more than other elite bargains, endeavoured to engender public understanding and support. It is a more transparent and inclusive process.

Even so, this pandemic is forcing us to rethink this State’s configuration. How will we achieve true human development? How do we think about the rule of law and human security going forward? How do we achieve social and economic equality in light of unconstrained elite power and control? How do we inspire constitutionalism?

If the BBI is to be relevant after the pandemic, it should attempt an answer to these questions. It should provide dissent spaces for greater inclusion. Excluded elites will inevitably develop counter-elite movements – in Kenya, this means ethnic groupings. How can the BBI foresee this and prevent instability?

The State that emerges post-pandemic might be irreparably transformed. It is imperative for the elite to reengineer their conversations towards building a stronger, more durable state, within the framework of the 2010 Constitution.

 

This article is part of a long series of articles on the rule of law in the context of politics and ethics. The views expressed here are personal and do not represent institutional views. The series is researched and co-authored by:

Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates
Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London