CHAPTER 18

Deliberative Democracy Without Public Participation in Kenya’s Elusive Search for Electoral Justice

Charles A. Khamala

Catholic University of Eastern Africa

Nairobi, Kenya

INTRODUCTION

Politicians boast more experience in the political game. Problematically, however, they are also conflicted in the making of election rules. This chapter attributes politicians’ vested interests about democracy to their theories of human nature. Despite Kenya’s attainment of political independence, the practice of procedural democracy deploys technical rational rules. Compounded by “state capture,” this marginalizes the masses. The Kenyan state has reportedly been privatized, repurposed for private gain. Furthermore, notwithstanding constitutional and electoral law reforms in 2010, and although the opposition successfully petitioned Kenya’s 2017 presidential election result, the transformation from command to democratic governance has stalled. Remarkably, civil society’s struggle for constitutional implementation produced a progressive legal precedent. In 2017, Maina Kiai’s Case (as the Supreme Court decision and its ensuing appeals came to be known) prohibited the electoral commission chair from unilaterally altering primary presidential election results after their declaration at polling stations. That decision was upheld in Raila Odinga v. IEBC [2017], which nullified President Uhuru Kenyatta’s first-round re-election. State repression against opposition protesters culminated in Raila Odinga’s swearing-in as the “people’s president.” Conversely, deliberative democracy, based on collective action theories, can encourage public participation in the making of electoral rules. By promoting equality over liberty, public participation amplifies political rights. Currently, self-interested politicians prefer skewed electoral rules. Unsurprisingly, therefore, Kenya’s Parliament has not enacted legislation to enable expression of views by the masses who disapprove of both primary and secondary rules, particularly electoral laws. Consequently, a proposed Public Participation Bill of 2016 republished in 2019 excludes the public from the making of election laws and policies. This chapter recommends that to be more transformative, Kenya’s Building Bridges Initiative of 2018 should have provided for citizen participation in the making of electoral laws. It did not. By invoking Kiai’s Case to dismiss Odinga’s 2022 presidential election petition, the Supreme Court upheld William Ruto’s victory, effectively reflecting the majority’s dissatisfaction with exclusion from BBI’s exclusionary approach.

One solution to a successful democratic transition lies in remodeling Kenyan democracy on deliberative democracy,^[1] based on a communitarian concept. Rethinking the feasibility of democracy in low-income, multi-ethnic societies entails abandoning the liberal model, based on procedural democracy.^[2] The trouble with the latter lies in its embrace of market values, which assume that human nature is self-interested and fearful. Constitutional democracy mitigates some discriminatory symptoms of formal liberalism but does not cure its disease. For example, although Kenya’s 2010 Constitution is widely acclaimed as “transformative and progressive,”^[3] its implementers have unduly sacrificed the value of equality by privileging elitist preferences for economic liberty. So far not even civil society activists, in their quest for democratic transition, recognize the advantages of communitarian values proposed by deliberative democracy over the disadvantages of liberal democratic models.^[4] In 2017, the High Court decision in Maina Kiai v. the Independent Electoral and Boundaries Commission^[5] was upheld by the Court of Appeal in IEBC v. Maina Kiai.^[6] This landmark precedent championed constitutional democracy. Kiai’s Case was affirmed in Odinga v. IEBC,^[7] where the Supreme Court famously nullified President Uhuru Kenyatta’s August 2017 first-round re-election. Problematically, however, the Constitution requires the top two candidates to immediately contest a re-run organized by an allegedly partisan or incompetent Independent Electoral and Boundaries Commission. Worse still, the authorities did not prevent the police and pro-government militia from killing over 100 civilians in Nairobi and western Kenya, while repressing mass protests.^[8] Importantly, deliberativists instead insisted on public participation in the making of electoral or referendum laws.

This chapter evaluates the extent to which a 2016 Public Participation Bill,^[9] which lapsed and was republished in 2019, may effectively eliminate periodic election-related violence. It criticizes that bill’s failure to facilitate the exercise of “political rights.”^[10] Instead, on March 9, 2018, President Kenyatta and official opposition leader Odinga reconciled. Their “golden handshake” pragmatically,^[11] albeit clandestinely, established a “Building Bridges to a New Kenyan Nation” (BBI).^[12] This chapter argues that to the extent that this latest reform initiative failed to engage the public, it was no more transformative than previous efforts.

Beyond the introduction as the first section, Section 2 of the chapter illustrates some problems of applying market theories in Kenya’s socio-cultural and political context. It distinguishes two types of liberal democracy: procedural and constitutional, derived from different Enlightenment human nature theories. However, they are afflicted by “state capture.” Constitutional democracy’s limitations in sustaining public tranquility remain manifest despite a successful presidential election petition, as section 3 illustrates. Deliberative democracy can arguably provide more credible presidential elections, thus preserving political stability and social tranquility. Section 4 demonstrates that because second-order deliberations are key to operationalizing the right to vote, they deserve progressive state support. Citing relevant domestic, international, and regional legal instruments, Kenya’s 2016 Public Participation Bill, republished in 2019, is critically analyzed in section 5. The chapter attributes Kenya’s cyclical electoral crises to an absence of effective public participation in designing and implementing political rights. Not only did the BBI process exclude the people’s input, but this factor also contributed to the failure of its de facto co-driver Odinga’s 2022 presidential election bid, this time in a peaceful environment. In conclusion, to enhance electoral justice, citizens should be involved in the making of electoral laws through local assemblies.

THE LIMITS OF MARKET DEMOCRACY1.1 LIBERAL DEMOCRACY AND ITS RATIONALE

1.1.1 THE ROLE OF SECONDARY RULES

In a democracy, the law of politics requires political choice. Its regulations revolve around three values: liberty, equality, and integrity. These normative frameworks assume that politics inspires intractable conflicts to the exclusion of “the possibility of agreement.”^[13] Disagreement is the first principle of governance,^[14] just as truth is the first virtue of thought, justice of social institutions^[15] and scarcity of sensible property talk.^[16] Jeremy Waldron explains that in a utopia consisting of angels and omniscient people, there would be no disagreement over what the truth is. However, disagreements are inherent in real societies where we dwell: first, because there is need for public goods and services which can only be produced by groups of people; and second, because it is not possible for any diverse collection of people to agree on what is the best or ideal distribution of rights or about who should own or do what in relation to any subject matter. Disagreements over the distribution of public goods give rise to social conflicts. Kenyans disagree on the distribution of voting rights, which are partly public goods.

Consequently, if citizens wish to minimize violent conflicts concerning adverse claims to truth, and if Kenyan government does not wish to perpetually engage in governance tasks, all participants in the discussion must agree on a “rule of authority.” This is a secondary rule pertaining to elections. It entrusts officials to make and enforce other secondary rules of governance—i.e., modification, adjudication, and enforcement rules which enact and decide when primary rules of obligation have been violated and implement them. Governments perform the tasks of making both secondary and primary rules.^[17] Assuming that ordinary people are equally rational and reasonable and further assuming that equality is the sovereign virtue,^[18] then to resolve rights-allocation disputes—specifically, to determine access to elective positions—democracies based on participatory majority accept the “one-man-one-vote” principle. Since the 1960s, “modern electoral, referendum, party and parliamentary laws, national (including local) statutory, development, delegated regulation and case law have complicated campaign length and voting systems.” Nowadays, many countries experience “rising juridification (subjecting politics to legal ordering) and judicialization (court review of political controversies).”^[19] Deliberation is a better alternative to voting for making election laws. Voting procedures provide democracy with a short-cut, by which equal individuals agree to disagree, and instead accept to abide by the majority’s choice. In such majoritarian systems, even if the majority makes rules with which the minority disagree, the minority is precluded from civil disobedience. Nonetheless, in a democracy “the law enacted by majority rule will sometimes have scope for refusal on the basis of conscience” and because “the existing law established by other majorities that meanwhile have become a minority.”^[20] At worst, marginalized or underrepresented residents may become conscientious objectors who try to persuade majorities to change their views. Instead of divisive presidential elections, therefore an electorate may agree to share positions peacefully and to implement inclusive and progressive policies.

1.1.2 STATE CAPTURE OF PROCEDURAL DEMOCRACY

Market theories assume that social problems are conflictual. Because elections possess fixed preferences regarding outcomes, they require mechanisms to facilitate strategic bargaining. They are processes where constituents exchange votes to purchase representatives, and in turn policies, corresponding to their self-interests. Market theorists emphasize the voting phase which produces a final result as being decisive for producing legitimate rules. Fairness, for them, requires aggregation of demographic numbers to determine which policy has a popular majority.^[21]

Market theories deploy economic analyses to understand democracy.^[22] Along a procedural-constitutional continuum,^[23] they oscillate between two extremes. At the pendulum’s procedural end, for Joseph Schumpeter, democracy is “a competitive struggle for the people’s vote, a competition between elites which then debate, vote, and legislate, ostensibly on behalf of the people.”^[24] Generally, market theories make various assumptions about political markets, which are analogous to perfect economic markets.^[25] However, these assumptions are untenable, particularly in African contexts. Consider Kenya’s procedural democracy: it tends to produce a “majority” that often represents an ethnic coalition of big tribes to the exclusion of ethnic “minorities.” However, the emergent “tyranny of numbers” sows the seeds of its own destruction. This is because perpetual minorities, those ethnic groups whose interests are continuously ignored, have legitimate reason to reject procedural democracy altogether. Sectional governance precipitates mass protests against declining social welfare. Moreover, factions within majorities which benefit from monopolistic inefficiencies are tempted to perpetuate their incumbency though “state capture.”

Procedural democracy is further hobbled by what an Africog Report terms as “state capture.” According to that report, “[t]o be able to transition ‘capture’ across elections, from one regime to another, as Kenya did in 2002 and again in 2013 and 2017, involves repurposing ‘politics’ so as to limit ‘the political agency of citizens.’”^[26] That is why “democracy has to be reframed in purely formal and procedural terms. The political class is then able to use the democratic process, especially elections, to frustrate what Michael Johnston calls ‘deep democratization.’” By calling it procedural democracy as opposed to deep democratization, he means that “the procedural elements of democracy are used to hollow out its substantive commitments whilst keeping the diplomatic respectability that is conferred by regular elections.”^[27] This kind of democracy is therefore “drained of substance and communal mores, which are purloined to give social legitimacy to vice, erodes democracy’s emancipatory power and robs the public of the moral resources they need to confront bad governance.”^[28] The extent to which the alterative ethics of deliberative democracy can save the Kenyan state from such procedural democracy bedeviling it is the key. First, it is necessary to consider why the public ethics of liberal democracy is problematic in Africa.

1.1.3 THE HOBBESIAN STATE

Assumptions about human nature under a liberalism of fear are essentially misanthropic, anticipating the worst of human beings. To pioneer European Enlightenment philosopher Thomas Hobbes, for example, “but for” restraint by an absolutely powerful state, self-interested individuals would become embroiled in a perpetual “war of all against all.”^[29] It is through voting that citizens choose their representatives and authorize the exercise of state power. However, his fearful “liberal democracy had very little to do with democracy. While Athenians were concerned with people governing themselves for themselves, Hobbes’s only concern is how people might protect themselves from others.”^[30] Hobbes’ philosophy further claimed that ”sovereignty can be destroyed not only by a foreign power, but also by a sovereign’s own corruption. Such sovereign, it could be a group or even an elected parliament….when ruled by passion or ignorance, may govern in its own interests or prove too incompetent to protect the interests of its subjects.”^[31] Therefore, Suri Ratnapala observes that “Hobbes’ confidence that absolute power will deliver safety of life, liberty and property of the individual subjects was seriously misplaced.”

1.2 CONSTITUTIONAL DEMOCRACY AND ITS LIMITS

1.2.1 JUDICIAL REVIEW OF ELECTORAL ADMINISTRATION

At the liberal pendulum’s other end, constitutional democracy prohibits any government, whether majoritarian, pluralist, or minority, from departing from certain fundamental rights of the individual. Irrespective of one’s entitlement to hold public office, it is simply morally wrong to violate certain values.^[32] For instance, Kenya’s Constitution confers judicial authority upon the judiciary. It expressly mandates the High Court to enforce the Bill of Rights.^[33] Among certain non-derogable human rights and fundamental freedoms is the right to a fair trial.^[34] Hence, constitutional democrats invoke the court’s judicial review powers to strike down overreaching legislation or administrative action which violates the Constitution.

1.2.2 LOCKE’S SOCIAL CONTRACT

Enlightenment theorists who prioritize property rights begin with John Locke’s social contract, which conceives of atomized individuals peacefully co-existing in an idyllic Garden of Eden. To satisfy their need to hold private property, they decide to establish a state. Although people possess fundamental duties to provide mutual aid, the Lockean state is required to superintend over the enforcement of contracts. Tax levies remunerate public officials for performing revenue collection and other administrative duties. Yet, altruism is limited. Hence, collecting tax requires compulsion. It is for efficiency in revenue collection purposes that people’s voices must be considered before any coercion may be introduced to stimulate their generosity.

Ultimately, Locke’s approach holds that “[t]he strength and appeal which made [Locke’s] second treatise a classic of liberalism is not its advocacy of human rights of government by consent, let alone popular participation in government.” Rather, as Claude Ake notes, it was “its unabashed privileging of property as the one right that counts, the right which called government into being in the first place.”^[35] Therefore, Locke advocated limited government, which provides scope for constitutional review of administrative action. Nonetheless, as Ratnapala concludes, “If the sovereign violates the natural rights of the people…[they] retain the right of resistance to the sovereign.”^[36]

In sum, Kenya’s unjust wealth distribution between social classes is attributable to unequal primary rules enforced by an all-powerful Hobbesian executive. Presidential power has entrenched ruling elites through widespread electoral injustices perpetrated by enacting administrative violence, bribing voters, corrupting polling officials, or even rigging computer technology. Judicial remedies in a Lockean sense provide limited, piecemeal, or reactive relief. Constitutional democracy’s critics thus contend that although courts are independent of the other branches of government, judges are a part of the ruling elite. Social contracts are market theories of democracy. By vindicating the court’s role as impartial arbiters of the common good and protectors of fundamental rights against majority indifference and market failure, they avoid moral commitments. Yet, in practice, judges are not simply appliers of rules mechanically identified as valid. Beyond Hobbes and Locke, ethical positivism is “a model in which we seek to establish rather than pre-suppose a body of ordinary and mandatory constitutional rules that can be recognized and applied in a value-neutral manner.”^[37] Executives neither accurately reflect the wishes of the people, nor are they controlled by the people’s representatives. Lord Hailsham calls for “a more realistic view of democracy in our time” and a reappraisal of the constitutional standards of freedom.^[38] For him, democracy is “elective dictatorship,” and courts are protectors of marginalized citizens from unrepresentative executive power.

2. ELUSIVE SEARCH FOR ELECTORAL JUSTICE

2.1 KIAI’S CASE

Kiai’s Case^[39] was a remarkable instance of private citizens invoking judicial review to reinterpret electoral rules. In an appeal to the Court of Appeal, the IEBC argued for a centralized and thus individualistic approach to the interpretation of its chair’s role during the vote-tallying process of presidential elections. Accordingly, Ben Sihanya recounts how “the role of the IEBC chairperson in the 2017 General elections changed from high-level executive decision making under the previous IEBC regulations, to administrative and ceremonial.”^[40] Sihanya elaborates:

Purporting to conceive of the chair as the returning officer of the presidential election, pursuant to Article 138(3)(c) of the Constitution as being the “head” of the IEBC, would entitle him to unilaterally alter “provisional” results, ignoring “announcements” by the presiding officers at polling stations or returning officers at constituencies. Instead, the judges unanimously rejected IEBC’s claim and upheld the public-spirited citizens’ arguments that declarations made by IEBC polling officials at all three levels are unalterable, save by an election court.

2.2 ODINGA’S 2017 PRESIDENTIAL ELECTION PETITION

On September 1, 2017, by a 4-2 majority decision, Kenya’s Supreme Court nullified the August 8, 2017, presidential election and ordered the IEBC to conduct fresh polls within 60 days.^[42] However, that merely delayed Kenyatta’s victory. Since Odinga boycotted the October 26 repeat poll, Kenyatta won by a 98% majority, albeit with a paltry 37% voter turn-out. On November 26, he resumed office.

At that time, only three presidential polls had been reversed worldwide. These were in Austria, Maldives, and Ukraine.^[43] Notably, Kenya was the first African country to do so. Odinga’s petition succeeded because Kiai’s test constrained IEBC’s chairman to merely collate primary results received from all 40,883 polling stations. His verification duty entails aggregating and declaring, rather than altering, results. Curiously, IEBC Chair Wafula Chebukati himself admitted that on August 11, 2017, when he purportedly declared Kenya’s August 8 presidential results, he was yet to receive any form 34A’s from 11,000 of the polling stations.^[44] The Court inferred that it was not possible to declare results in the absence of such primary data. Furthermore, it ordered IEBC to disclose the electronic voting data inside its transmission servers located in France and Spain. That trail could reconcile discrepancies between the real-time results recorded by polling officers both manually and electronically, and subsequent alterations of postings at the national tallying center. However, the IEBC did not disclose this information.

The opposition candidate was aggrieved that results, which were contemporaneously beamed on IEBC’s electronic screens at Nairobi, appeared computer-generated and lacked supporting primary documentation from the polling stations. Besides concealing the electronic data trail of forms 34A in its servers, the IEBC purported to rely on forms 34B from the 290 constituencies. However, Odinga protested that forms 34B were secondary documents allegedly manufactured to portray Kenyatta as having maintained a consistent, spurious 54-44% margin throughout vote-counting. Mysteriously, the missing 11,000 forms 34A resurfaced on August 18, 2017. Clearly, the delay in availing them provided the IEBC with ample opportunity to falsify information. No explanation accounted for their unavailability on August 11 when the opposition requested to see them.

2.3 RADICAL PROTEST BY THE “PEOPLE’S PRESIDENT”

Kenyatta’s first-round electoral victory was nullified notwithstanding that the number of votes in dispute were insufficient to alter the final result.^[45] From late 2017 to early 2018, Odinga’s National Super Alliance (NASA) coalition metamorphosed into the National Resistance Movement of Kenya (NRMKe), which incited widespread public demonstrations. Nationwide opposition protests expressed dissatisfaction with electoral injustice. However, NRMKe was declared an organized criminal group.^[46] Despite state repression and ignoring threatened prosecution for treason, on January 30, 2018, Odinga was sworn in as the “people’s president before a mass public gathering at Uhuru Park in Nairobi.”^[47] Surprisingly two months later, he and Kenyatta reconciled. Observers remain baffled by the rationale underpinning their Memorandum of Understanding.^[48] What follows explains how communitarian theory provides alternative rules for resolving serious disagreements over the distribution of electoral positions, namely deliberative democracy.

3. DELIBERATIVE DEMOCRACY

3.1 FIRST-ORDER DELIBERATIONS

Democracy demands that reasonable individuals should attempt, in good faith, to persuade fellow citizens to change their preferences. The state should therefore establish spaces to not only receive the public’s views, but also to facilitate deliberations about important and controversial moral topics.^[49] Deliberativists insist that legitimate social rules are capable of selection through debate, discourse, discussion, and consensus. For them, the electoral process is important since it gives candidates an opportunity to campaign and explain why certain policies or rules may be beneficial or disadvantageous. Roy Levy and Graheme Orr distinguish between first-order and second-order deliberations.^[50] First-order deliberations comprise debates which regulate physical behavior of citizens in-between elections. Second-order deliberations concern rules that regulate both officials’ and citizens’ behavior during elections or referendums. Alasdair Macintyre’s groundbreaking deliberative literature, also known as neo-Aristotelian or virtue ethics, is instructive. This school of thought offers a departure from deontological or teleological human nature concepts, which give rise to Hobbesian and Lockean: “this tradition does not locate ethics within the autonomous individual, but within the community. That is ethics emerges from the relational context within which people act–within the public square.”^[51] Guy Adams and Danny Balfour posit that “critical and active citizenship is a key aspect of building a viable deliberative democracy.” Furthermore, because exclusion, nonparticipation, and exploitation “weaken the community by undermining the civic bonds that unify it,” public policies based on such vices “are entirely inimical to deliberative democracy.”^[52]

Similarly, Africog decries the “pathological view–that there is a decent state trying to do a good job but sundered by institutional infirmities.” It rejects “principle-agent” theories which hold that “leaders (the ‘agents’) are given authority by voters (the ‘principals’), with the expectation that they will govern in the best interests of the country” since “the effort of the agent is not always observable.”^[53] Instead, Africog expresses skepticism about attempts to increase transparency as a solution to “high impunity environments,” since the “flood” of such reforms “have only been in public finance management.” Yet Kenyan parliamentarians remain reluctant to enact enabling rules to involve citizens in the making of oversight mechanisms that may facilitate their own ouster and provide free and fair elections.

3.2 SECOND-ORDER DELIBERATIONS

Consecutively, both of Kenya’s 2016 and 2019 Public Participation Bills attempted to establish “regulative authorities” and contain “guidelines” for citizen inclusion in first-order deliberations regarding debates about everyday primary rules. However, while being identical, they conspicuously omitted citizens in the making of second-order deliberations that regulate how power is acquired during elections. Electoral laws regulate, inter alia, the drawing of administrative boundaries; registering political parties and voters; declaring seats vacant; regulating campaign conduct; capping expenditure; advertising; establishing polling stations; printing and acquiring of ballot papers; procuring boxes and other paraphernalia (e.g., electronic equipment to facilitate voter identification); recording results and their transmission; recruiting presiding and returning officers and other personnel; organizing vote-counting; and conducting election petitions.^[54] Problematically, market theories assume that “public officials can do no wrong.”^[55] They assume that elected elites represent their constituents’ best interests and that because the representatives are people of integrity, they should not only select primary rules to regulate production and consumption but also vacate office upon an adverse vote. But more importantly still, market theories assume that people’s representatives should also select secondary rules which balance electoral liberty and equality so as to produce optimum representatives. However, all these assumptions are false. On the contrary, incumbents tend to be interested in their own re-election.^[56] Hence, if unchecked, parliamentarians invariably enact biased electoral laws and policies. Because liberal democracy’s proponents propagate economic freedom to the detriment of social equality, therefore, emergent widespread impoverishment precipitates mass protests agitating for public participation in election law-making.

4. THE RIGHT TO PARTICIPATE

4.1 LEGAL BASIS FOR THE RIGHT TO PARTICIPATE

This section explains the origins, scope, and rationale of the right to participate. It demonstrates that notwithstanding the Kenyan Constitution’s formal articulation of this value in its preamble, the relevant authorities have failed, neglected, or refused to realize effective public participation in the making of secondary rules. Although in Odinga’s case the Supreme Court recognized Odinga’s “political rights” to transparent polls, ordering a re-run in 60 days was hardly practical to realize their enjoyment. Rather, the opposition candidate legitimately anticipated that without reforms, IEBC was ill-prepared to superintend over a fresh poll. Meanwhile, soon after he threatened to boycott the re-run, the ruling party’s parliamentary majority amended the Elections Act^[57] by giving precedence to manual transmission of results, reducing the quorum of the IEBC to the bare minimum of three (substituting the previous five out of seven commissioners), and empowering its vice chairperson to declare the winner in lieu of its chairman.^[58] Justice Chacha Mwita invalidated that amendment as undemocratic and unconstitutional.^[59] This section lays down the constitutional and international legal basis for a right to participate in making election laws. There is no intrinsic reason why decisions about controversial debates, whether the death penalty, abortion, affirmative action, or even the type of voting system should necessarily be made by judges or politicians alone. Rather, provided that ordinary people possess sufficient information, the conditions may be engendered for deliberation about political controversies. Indeed, such decisions may be more legitimate than choices purportedly made on their behalf, whether by legislatures or courts.^[60]

4.2 POLITICAL RIGHTS UNDER KENYAN LAW

4.2.1 THE CONSTITUTION

Consistent with internationally-recognized self-determination rights, Article 38 of Kenya’s Constitution guarantees “political rights” as follows:

(1) Every citizen is free to make political choices which includes the right–

• To form, or participate in forming a political party;
• To participate in the activities of or recruit members of a political party; or
• To campaign for a political party cause.

(2) Every citizen has the right to free, fair, and regular elections based on universal suffrage and the free expression of the will of the electors for–

• Any executive public body or office established under the Constitution; or
• Any office of any political party of which the citizen is a member.

(3) Every adult citizen has the right, without unreasonable restrictions–

• To be registered as a voter;

• To vote by secret ballot in any election or referendum; and

• To be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.^[61]

The Constitution’s opening chapter enshrines national values and principles of governance which bind all state organs, state officers, public officers, and all persons.^[62] These values include the rule of law, democracy and participation of the people,^[63] equality as well as integrity.

4.2.2 THE PUBLIC PARTICIPATION BILL

By a Bill for an Act of Parliament entitled the Public Participation Bill in 2016 and reproduced in 2019, the legislature seeks to “provide a general framework for effective public participation; to give effect to the constitutional principles of democracy and participation of the people under Articles 1(2), 10(2), 35, 69(1)(d), 118, 174(c), and (d), 184(1)(c), 196, 201(a) and 232(1)(d) of the Constitution.”

The bill’s guiding principles are inclusiveness of the public, communities, and organizations to be affected by a decision.^[64] It provides that “the public’s right to be consulted and involved in the decision-making process” shall be realized by “provision of effective mechanisms” for the “involvement” of those “affected or interested in a decision. Furthermore, the bill’s schedule sets out general participation guidelines which “provide reasonable and meaningful opportunities for public participation.” The responsible authority must consider “the nature of legislation or decision to be made, their importance, intensity, and impact on the public.”^[65]

The mischief in Kenya’s 2016 (and subsequently 2019) Public Participation Bill’s objects and guidelines lies in their conspicuously narrow scope. For example, “the relevant authority may decline to give information to an applicant where (a) the request is unreasonable in the circumstances; or (b) the applicant fails to satisfy any confidentiality requirement imposed by the responsible authority.”^[66] More glaringly, right from the bill’s preamble, its objects and purposes exclude the giving of effect to “political rights.”^[67] This omission assumes that citizens are too ignorant to contribute to second-order decisions concerning designing the framework or democratic theory that determines selection of their representatives. Rather, under the bill, public participation is restricted to debate regarding first-order deliberations about primary rules affecting everyday life, such as locomotion, taxation, or matrimony.^[68] Yet, second-order deliberations concern the making of second-order rules, including electoral or referendum laws that set out structures regulating election dates, campaign expenditure and modalities, balloting apparatuses, polling stations and personnel, as well as election petition rules. This is no coincidence since self-interested incumbents design electoral procedural laws to exclude ordinary people from selecting and/or designing them. It results in recycling representatives or others who share their interests. In consequence, elected representatives who lack integrity tend to produce inefficient or unjust substantive primary rules to the detriment of overall social welfare. Yet, Kenya is a signatory of numerous international legal instruments imposing obligations to enshrine the right to participate.

4.3 POLITICAL RIGHTS UNDER INTERNATIONAL AND REGIONAL LAW

In 1960, the United Nations General Assembly adopted the Declaration on the Granting Independence to Colonial Countries and Peoples (“the Colonial Declaration”),^[69] known as the “Magna Carta of decolonization.” It “affirmed that [a]ll peoples have the right to self-determination [and]… by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”^[70] Similarly, the right to self-determination is enshrined under the 1981 African Charter on Human and People’s Rights.^[71] The pioneering international instrument facilitating universal suffrage, the 1948 Universal Declaration on Human Rights requires that:

(1) Everyone has the right to take part in the government of their country, directly or through freely chosen representatives.

(2) Everyone has the right of equal access to public service in their country.

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.^[72]

Furthermore, its protocol, the 1966 International Covenant on Civil and Political Rights, grants citizens not only “the right to vote in elections” but also “the right and the opportunity…to take part in the conduct of public affairs, directly or through freely chosen representatives.”^[73]

4.4 THE RIGHT TO VOTE AS A SECOND-GENERATION HUMAN RIGHT

On the continent’s return to multiparty democracy, John Harbeson claimed that “African circumstances often dictate that pacts that are broadly constructed in terms of participants, scope, and duration prior to the holding of initial multiparty elections are more conducive to enduring democratization than are more narrowly constructed pacts or in the absence of any such pact.”^[74] Kenyan electoral history reveals frequent resorts to state-sponsored ethnic violence, economic influence, and electronic manipulation by the ruling elite to rig results. Since post-colonial continuity of command governance, the public has historically been excluded from participating in the decision-making of electoral law. The first problem is that elected officials tend to make second-order rules that entrench incumbent advantages and produce skewed outcomes.

A second problem lies in the technicality-ridden implementation and adjudication of electoral law. That is why, for example, much of Kenya’s pre-2017 election debate concerned the replacement of former IEBC chairman Isaack Ahmed Hassan.^[75] Despite the bungling of his successor, Chebukati, during the first round of the 2017 presidential election, he retained the chair’s office. Fatefully, the 2022 tallying and verification exercise was marred when four commissioners dramatically informed the public of their rejection of the yet to be announced result, terming it “opaque” due to the chair’s excluding them.^[76] Although such internal antics did not invalidate the result, they tainted public perceptions of the IEBC’s performance. Henceforth, the chair’s mandate is curtailed, depriving him any “special or extraordinary powers with regards to tallying or verification of results.” Instead, such powers are not “to be exercised by him or her alone without regard to the rest of the Commissioners.” Rather, his collective responsibility vis-à-vis the Commissioners “is as a ‘first among equals’ without any veto powers.”^[77] Ethnic loyalties and party or coalition allegiances aside, due to the notion that individuals think that their vote will not make a difference, they may be discouraged from voting in future elections. Deliberative democracy is effective in overcoming such voter apathy that generates free-rider problems.

A third problem is that individuals whose views are not considered when decisions affecting them are made feel a sense of indignation. According to Waldron, this is because all human beings were created equal, and if lesser consideration is accorded to some people’s views while determining how to distribute public goods, they tend to feel humiliated..^[78] In one sense, voting is a negative right, because it precludes state interference with individual liberty. It is a first-generation human right. These claims protect core physical integrity. However, it is not possible for an individual to exercise their right to vote in isolation from other people. Notwithstanding the relative insignificance of an individual’s vote because of the importance of other public goods which collective voters determine, the state mobilizes resources and personnel to create an enabling environment for its realization. The state’s role in facilitating voting resembles that of promoting second-generation human rights, such as rights to food, healthcare, or housing, which are progressively realizable.^[79] To this extent, low-income countries may currently lack the capacity to implement international obligations to instantly deliver transparent elections. Hence, liberal democratic elections hardly satisfy Kenya’s international obligations to voting or participation rights, creating the need to make African democracies more deliberative.

4.5 BEYOND PRINCIPAL-AGENT THEORIES: A CALL FOR COLLECTIVE ACTION

Garret Hardin’s “tragedy of the commons”^[80] is what Africog calls “collective action” ethics. Africog contends that “consumers of goods who know that they cannot be excluded from benefit have no incentive in producing the goods–they are free riders.”^[81] This is because “individuals gain little from abstaining from or resisting corruption if they cannot trust that others will do the same.” Rather, “people abstain from reform advocacy and free-ride on the efforts of the collective, hoping to benefit from a low corruption environment when and if it is ever achieved.” However, “in high impunity environments, many voters prefer the corrupt politician from their in-group to the honest politician from the out-group–an institutionalized form of adverse selection.”^[82]

Even disregarding principal-agent (liberal ethics) justifications for the right to participate, participation in elections is contingent upon the state’s provision of enabling mechanisms which facilitate its exercise. Collective action is central to participation. Evidence from Kenyan history and current practice suggests that social trust makes collective action possible. Evidently, in the African context, human nature has traditionally been cooperative. In 2018, the president’s “golden handshake” with his erstwhile political rival and “people’s president” Raila is reminiscent of how the latter’s father, Jaramogi Odinga, during pre-independence negotiations with the British government, selflessly declined the presidency, instead insisting on Jomo Kenyatta’s release from detention as a pre-condition to Kenya’s independence.^[83] It is also reminiscent of how KADU’s small tribes crossed the floor of the House in 1964 to join KANU’s big tribes, thereby historically ushering in a parliamentary supermajority.^[84] These reconciliatory moments revive hope for national unity. Bert van Roermund realizes that sense of hope:

He concludes that insistence on “full” deliberation sets a very high standard that “has been met only rarely, and then only after multiple iterations.”^[86] Rather, deliberative democracy “is a process that can, over time, grow citizens, fostering growth both in the capacity for practical judgment and in the art of living together in a context of disagreement–hence a public ethics. As in a liberation of fear, tolerance is elevated to a central virtue in public life.” Ultimately, the nature of the communication involved is such that “the participants strive to rise above win-lose exchange; over time, they aspire to becoming a learning community.”^[87]

4.6 PRAGMATIC DEMOCRACY AS A PRECURSOR TO DELIBERATIVE DEMOCRACY

The Kenyatta-Odinga “golden handshake” in March 2018 extinguished longstanding tension between two of Kenya’s major ethnic protagonists, the Kikuyu and Luo. An escalating feud regarding injustices afflicting the 2017 presidential election and its controversial re-run threatened to divide the country once again. An immediate dividend borne of that pact was political stability and peace. However, no details have so far emerged concerning its secret basis. To the extent that public participation did not ratify BBI’s draft,^[88] its legitimacy became untenable. Clearly, constitutional arguments using reasons, in Kiai’s Case for Jackson Knight and James Johnson^[89] are no different from market-driven strategic bargaining using threats or promises. During protracted disagreement over the 2017 presidential rerun, Kenyatta’s Jubilee Party-dominated Parliament threatened to unilaterally amend the rules of the game so as to empower the IEBC vice chairperson to declare Kenyatta victorious. Either way, citizens’ exclusion from the BBI was attributable to a legislative process based on liberal democratic theories and human nature concepts whose rigid laws perennially trigger protests against perceived presidential electoral injustices. This time, grievances were canvassed peacefully. In March 2022, the Supreme Court struck down the BBI’s attempts to change the Constitution through a referendum. First, because “[t]he President initiated the amendment process” but “cannot initiate Constitutional amendments or changes through the popular initiative under Article 257 of the Constitution.”^[90] The popular initiative route is reserved for common citizens. Second, since “[t]here was no evidence of deliberations or public participation on the change of the Bill to add the Second Schedule.”^[91] The public participation process must be qualitative, rather than quantitative. What matters is neither the number of submissions that are made by stakeholders, nor the number of stakeholders that participate in such an exercise. In decision-making, promoters must consider and examine the submissions made by the public.^[92] To break the impasse, Knight and Johnson^[93] call for pragmatic democracy. This provides that social institutions should ensure that deliberative democracy is effective in improving policy outcomes. They recommend that private citizens’ assemblies can complement official legislative processes, which otherwise tend to be merely formal but ineffective. Such a pragmatic model is what BBI, upon the President’s historic “peace handshake” with the official opposition leader, seemed predicated on. However, it was declared unconstitutional.

Notwithstanding President Kenyatta’s backing of opposition leader Odinga, who favoured BBI’s proposed constitutional amendments, Deputy President Dr. William Ruto subsequently won the August 9 presidential elections. He garnered 50.49 percent of the votes to Odinga’s 48.8 percent. External observers, including the African Union and the European Union, praised the IEBC’s performance, saying it represents “a significant achievement in a country where violence has marred previous polls and where public trust in electoral institutions has historically been low.”^[94] Odinga’s compounded failure may partly be attributable to widespread public dissatisfaction with the non-participatory manner in which the government and opposition conspired to exclude ordinary people from the BBI process. On his part, he blamed failure on an anonymous “group of right-wing politicians and a group international monopoly capital.”^[95] He accused a “middleman” of influencing the outcome. However, the judges unanimously rejected allegations of rigging by the IEBC as “forgeries,” “incredible hearsay,” and “hot air” that took the court on a “wild goose chase.”^[96] Significantly, the petition rules do not permit sufficient time to explore circumstantial evidence. The Court followed its precedent with the Kiai Case, adopted in Raila 2017, to assert that the primary forms 34A derived from actual balloting at polling stations generate the presidential election results. This upheld Ruto’s victory^[97] and effectively his pledge, inter alia, to replace “state capture” with bottom-up economics.^[98] The court reiterated its 2017 recommendation on the need to extend the 14-day constitutional timeline to afford parties sufficient time to ventilate their cases.^[99] This calls for a constitutional amendment. As such, it must be preceded by public participation.

CONCLUSION

Assumptions that democratically elected representatives are necessarily people of integrity are false. Self-interest explains why Kenya’s ruling elite prefer procedural democracy, which enforces formal legal rules. Yet, such rules are hardly scrutinized by ordinary citizens as the election date approaches, when they tend to be enacted. Indeed, the IEBC’s personnel are invariably presidential appointees, and their policies thus tend to favor an incumbent.^[100] In 2013, Kenya’s presidential elections were allegedly rigged by manipulating the voting register, ballot boxes, or final results.^[101]

A third way of transformation—namely, the right to participate—vindicates the notion that the enactment of electoral laws should be deliberative. Deliberative democracy is based on the ideal of public participation through dialogue, debate, and discussion about ills facing society. In 2017, because liberal democratic electoral processes are fraught with technical rational legal hurdles and despite successfully petitioning Kenyatta’s presidential election victory, Odinga demanded “irreducible minimum” reforms, including amending the electoral law. Amid violent repression of public protests, political instability ensued. Peaceful protests galvanized the executive’s acceptance of the need for reforms. It demonstrated the need for marginalized residents to provide reasons or arguments to persuade majorities to accept the democratic possibility of electoral defeat and suppression of “electoral dictatorship.” So far, attempts to enact legislation to facilitate a more direct, rather than representative democracy, have not succeeded. Procedurally, two proposed bills recognize the quality of reasonableness as being the standard which should guide public participation practices. Substantively, the bills failed to expressly provide for second-order deliberations in the making of rules which impact on political rights. Because the self-interested political class persists in monopolizing debate on democratic models, either the opposition or civil society is likely to resort to galvanizing the public to protest bureaucratic technicalities and state capture that typically manifest in complaints against illegitimate presidential election processes and outcomes. To illuminate the dynamics of pragmatic democracy that united former political protagonists under Kenya’s BBI between 2018 and 2022, democratic deliberations facilitate the making of second-order rules, that is, election law. However, in 2022, the executive-driven and non-participatory BBI process was declared unconstitutional by the Supreme Court. Subsequently, Ruto, the candidate opposed to the government’s exclusionary pre-electoral constitutional reforms, was vindicated at the presidential election. Crucially, 14 days are insufficient time to test the veracity of petition evidence. This procedural technicality undermines the court’s role as protectors of minority rights. Finally, in election law-making, the quality of stakeholders’ opinions matters. Latent disparities in debating skills and bargaining powers can distort public opinion in fragile societies. To encourage critical thinking about controversial democratic models, developing countries need support for localized social institutions, such as private citizens’ assemblies, by creating safe spaces and providing information for empowerment.

END NOTES

1. Ron Levy and Graeme Orr, The Law of Deliberative Democracy (Abingdon, Oxon: Routledge, 2016). ↑

2. Tom Campbell, “Legal Positivism and Deliberative Democracy,” in Tom Campbell and Adrienne Stone (eds.) Law and Democracy (Burlington: Ashgate, 2003) 317-344.↑

3. Ben Sihanya, “Electoral Injustice in Kenya under the 2020 Constitution: Implementation, Enforcement Reversals and Reforms” (2017) Law Society of Kenya Journal, Vol. 13(1) 1-30, 1. ↑

4. Amy Gutmann and Dennis Thompson, “Moral Disagreement in a Democracy” (1995) Social Philosophy and Policy, 12, 1, 87-110. ↑

5. Maina Kiai & 2 others v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR ↑

6. Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR (Kiai’s case). ↑

7. Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR. (Raila 2017). ↑

8. Human Rights Watch, “Kenya Events of 2018” in World Report 2019https://www.hrw.org/world-report/2019/country-chapters/kenya <accessed on 8 June 2020> ↑

9. Public Participation Bill (2016) Special Issue Kenya Gazette Supplement no. 175 (Senate Bills no. 15) 8 November 2016, Nairobi. http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2016/PublicParticipationBill_2016.pdf <accessed on 15 September 2020>; See also Public Participation Bill (2019) Kenya Gazette Supplement No. 170 (National Assembly Bills No. 71) 19 October 2019, Nairobi. http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2019/PublicParticipation_No._2_Bill_2019.PDF <accessed on 15 December 2021> ↑

10. Article 38, Chapter IV on the “Bill of Rights,” Constitution of Kenya (Nairobi Government Printer, 2010). ↑

11. Jack Knight and James Johnson, The Priority of Democracy: Political Consequences of Pragmatism (Princeton NJ: Princeton University Press, 2013). ↑

12. Lillian Kwamboka, “14-member Building Bridges Initiative Task Force Gazetted” East African Standard 31 May 2018 https://www.standardmedia.co.ke/article/2001282464/14-member-building-bridges-initiative-task-force-gazetted <accessed on 15 September 2020> ↑

13. Levy and Orr, supra note 1, 5. ↑

14. Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press: Oxford University Press, 1999). ↑

15. John Rawls, A Theory of Justice (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1971). ↑

16. Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1989). ↑

17. H.L.A. Hart, The Concept of Law (Oxford University Press, 1992 [1961]). ↑

18. Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Massachusetts; London: Harvard University Press, 2000). ↑

19. Levy and Orr, supra note 1, 4-5. ↑

20. Bert van Roermund, Legal Thought and Philosophy: What Legal Scholarship is about (Cheltenham, UK; Northampton USA: Edward Elgar, 2013), 175. ↑

21. Waldron, supra note 14. ↑

22. Campbell, supra note 2. ↑

23. Gutmann and Thompson, supra note 4. ↑

24. Joseph A. Schumpeter, Capitalism, Socialism and Democracy (New York: Harper & Row, 1942). ↑

25. Campbell, supra note 2. ↑

26. Wachira Maina, State Capture: Inside Kenya’s Inability to Fight Corruption (Nairobi: Africog, 2019).↑

27. Ibid. 8 ibid. citing D. Burbidge, The Shadow of Kenyan Democracy: Widespread Expectations of Widespread Corruption (Ashgate Publishing 2015) 20, quoting Michael Johnston, “More than Necessary, Less than Sufficient: Democratization and the Control of Corruption” (Winter 2013) Social Research: Corruption, Accountability, and Transparency, 80, 4, 1237-1258. ↑

28. Maina, ibid. ↑

29. Thomas Hobbes, Leviathan (London: Penguin Books, 1981[1651]). ↑

30. Claude Ake, The Feasibility of Democracy (Dakar: Codesria 1996), 14. ↑

31. Suri Ratnapala, Jurisprudence (Cambridge University Press 2009), 29-30. ↑

32. Ibid. ↑

33. Article 165, Constitution, supra note 10. ↑

34. Article 25(c), ibid. ↑

35. Claude Ake, The Feasibility of Democracy (Dakar: Codesria 1996), 16. ↑

36. Ratnapala, supra note 32, 150. ↑

37. Tom D. Campbell, The Legal Theory of Ethical Positivism (Brookfield, USA: Aldershot, 1996). ↑

38. Hon. Justice Gerard Brennan, “Courts, Democracy and the Law” (1991) Australian Law Journal, 65, 32-42, 32. ↑

39. IEBC v Kiai, supra note 6. ↑

40. Sihanya, supra note 3, 18. ↑

41. Ibid. ↑

42. Odinga v IEBC, supra note 7. ↑

43. Sihanya, supra note 3. ↑

44. Ibid.↑

45. Silas Apollo, “Githu Muigai: CJ Maraga erred by Annulling Uhuru’s win” Daily Nation, 25 August 2020 https://nation.africa/kenya/news/githu-muigai-cj-maraga-erred-by-annulling-uhuru-s-win-1925844 <accessed on 12 September 2020>.↑

46. Section 22, The Prevention Organised Crimes Act, 2010; See Rhoda Odhiambo “State declares National Resistance Movement Criminal Group” The Star, 30 January 2018, https://www.the-star.co.ke/news/2018/01/30/state-declares-national-resistance-movement-criminal-group_c1706425 <accessed on 5 July 2020>↑

47. Beatrice Kangai, “Raila sworn in as ‘People’s President’, Kalonzo absent” Daily Nation 30 January 2018 https://www.nation.co.ke/news/politics/Raila-Odinga-Sworn-In-as-Peoples-President-/1064-4284622-f9350kz/index.html <accessed on 5 July 2020>↑

48. Joseph Warungu “Letter from Africa: The handshake that left millions of Kenyans confused” BBC News 18 April 2018 https://www.bbc.com/news/world-africa-43656971 <accessed on 29 September 2020>↑

49. Waldron, supra note 14.↑

50. Levy and Orr, supra note 1, 9.↑

51. Alasdair C. Macintyre, After Virtue: A Study in Moral Theory (Notre Dame: University of Notre Dame Press, 1984), cited in Guy B. Adams and Danny L. Balfour, Unmasking Administrative Evil (New York: M.E. Sharpe, 2004), p 160.↑

52. Ibid, citing Paul Lawrence Farber, The Temptations of Evolutionary Ethics (Berkeley and Los Angeles: University of California Press, 1994), 929.↑

53. Maina, supra note 27, 10.↑

54. Adams and Balfour, supra note 53, 161.↑

55. Odinga v IEBC, supra note 7.↑

56. Noel Whelan, “Changing the Rules of the Political Game” in Bláthna Ruane, Jim O’Callaghan, and David Barniville (eds) Law and Government: A Tribute to Rory Brady (Ireland: Round Hall, 2014).↑

57. The Elections Act No 14 of 2011.↑

58. Francis Gachuri, “Court Nullifies changes to Kenya Election Laws” Citizen Digital, 7 April 2018 https://citizentv.co.ke/news/court-nullifies-changes-to-kenya-election-laws-196144/

    <accessed on 3 October 2020>.↑

59. Election Laws (Amendment) Act No. 34 of 2017, invalidated by the High Court in Katiba Institute & 3 others v Attorney General & 2 others [2018] eKLR.↑

60. Campbell, supra note 2.↑

61. Article 3, Chapter IV on the “Bill of Rights,” Constitution, supra note 10.↑

62. Article 10, ibid.↑

63. Section 2(a), Public Participation Bill, supra note 9. http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2016/PublicParticipationBill_2016.pdf <accessed on 15 September 2020>.↑

64. Schedule to the Bill, ibid. ↑

65. Ibid.↑

66. Guideline 10(4), “circumscribing Article 35 of the Constitution,” ibid. ↑

67. Article 38, Constitution, supra note 10.↑

68. Levy and Orr, supra note 1.↑

69. Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by UN General Assembly resolution 1514 (XV) of 14 December 1960. http://www.un.org/en/decolonization/declaration.shtml <accessed on 15 September 2020>↑

70. Ibid. para 2; See also Hennie Strydom and Christopher Gevers, “Statehood and Recognition” in Hennie Strydom (ed.) International Law (Oxford University Press 2015) 35-62, 50.↑

71. Article 20, African Charter on Human and Peoples’ Rights (also known as the Banjul Charter) adopted in Nairobi, 27 June 1981, entered into force 21 October 1986. https://au.int/en/treaties/african-charter-human-and-peoples-rights <accessed on 15 September 2020> ↑

72. Article 21, Right to take part in government, The Universal Declaration of Human Rights proclaimed by the United Nations General Assembly Resolution 217 A, at Paris on 10 December 1948.↑

73. Article 25, “Right to Political Participation” International Covenant on Civil and Political Rights, adopted by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.

    https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx <accessed on 15 September 2020> (emphasis added)↑

74. John W. Harbeson, “Rethinking Democratic Transitions: Lessons from Eastern and Southern Africa” in Richard Joseph, State, Conflict and Democracy in Africa (USA: Lynne Rienner Publishers Inc. 1999) 39-56, 43.↑

75. Intelligence Unit, “Kenya: Opposition Protests Spark Police Crackdown” The Economist, 24 May 2016 http://country.eiu.com/article.aspx?articleid=464249230&Country=Kenya&topic=Politics <accessed on 15 September 2020.↑

76. Ibid. para 239, 102.↑

77. Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (5 September, 2022) (Judgment) para 233, 100.↑

78. Waldron, supra note 14.↑

79. Ibid.↑

80. Garrett Hardin, “The Tragedy of the Commons” (December 1968) Science, New Series, vol. 162, 1243-1248. ↑

81. Maina, supra note 25, 11. ↑

82. Ibid. p 3, citing H. Marquette and C. Peiffer, “Corruption and Collective Action” (2015) DLP Research Chapter 32 University of Birmingham, 3. ↑

83. Julius Sigei, “If only Jaramogi became Kenya’s First Premier as the Governor Had wanted...” Saturday Nation,16 November 2013 https://www.nation.co.ke/news/politics/1064-2076166-wqt4i8/index.html <accessed on 18 July 2020> ↑

84. Walter O. Oyugi, “Uneasy Alliance: Party State Relations in Kenya” in Walter O. Oyugi (ed.) Politics and Administration in East Africa (Nairobi: East African Educational Publishers, 1994) 153-192, 160. ↑

85. Roermund, supra note 21, 114. ↑

86. Adams and Balfour, supra note 53, 160.↑

87. Daniel Yankelovich, The Magic of Dialogue: Transforming Conflict into Cooperation (New York, NY: Simon & Schuster, 1999), cited in ibid. 159.↑

88. Lillian Kwamboka, supra note 12. ↑

89. Knight and Johnson, supra note 11. ↑

90. Attorney General & 2 Others v David Ndii & 79 Others; Petition No. 12 of 2021 (consolidated with Petitions 11 & 13 of 2021 – Building Bridges Initiative – BBI full Supreme Court Judgement. https://www.judiciary.go.ke/download/petition-no-12-of-2021-consolidated-with-petitions-11-13-of-2021-building-bridges-initiative-bbi-full-supreme-court-judgement/ <accessed on 9 October 2022> 926-927. ↑

91. Attorney General & Others v David Ndii supra note 92, 928; see also Sam Kiplagat, Kenya’s Supreme Court declares BBI Unconstitutional, The East African, 31 March 2022.

    https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-s-supreme-court-declares-bbi-unconstitutional-3766868 <accessed on 7 October 2022>↑

92. Ibrahim Ouko, “Public Participation: BBI Promoters did not involve Kenyans” Daily Nation, 17 May 2021. https://nation.africa/kenya/news/politics/so-what-does-public-participation-entail-3402844 <accessed on 8 October 2022>↑

93. Knight and Johnson, supra note 11.↑

94. International Crisis Group, “A Triumph for Kenya’s Democracy” Statement, 8 September 2022. https://www.crisisgroup.org/africa/horn-africa/kenya/triumph-kenyas-democracy <accessed on 7 October 2022>↑

95. Silas Apollo, “I lost because Foreign Powers, Multinationals Meddled in Election, Raila now says” The Citizen, 8 October, 2022. https://www.thecitizen.co.tz/tanzania/news/east-africa-news/i-lost-because-foreign-powers-multinationals-meddled-in-election-raila-now-says-3977066 <accessed on 7 October, 2022>↑

96. Odinga v Ruto (Judgment) supra note 78 para 155, 71.↑

97. Ibid. paras 227-229, 97-99.↑

98. Betty Njeru, “William Ruto to deal with ‘State Capture’ if Elected President,” Saturday Standard, 23 July 2022. https://www.standardmedia.co.ke/article/2001450910/ruto-to-deal-with-state-capture-if-elected-president <accessed on 7 October 2022>↑

99. Odinga v Ruto (Judgment) supra note 78 para 309, 127.↑

100. Knight and Johnson, supra note 11.↑

101. Sihanya supra note 3.↑