“In the democratic view, a law is only legitimate when those who are expected to comply with the law are also able to contribute to shaping that law” Jean-Jacques Rousseau

Introduction

Democracy generally refers to rule by the people so that the governing practices are decided upon by the people themselves. The citizens have an equal share in deciding how their country is governed and they either do this directly or assign others to do it on their behalf.  Citizens also have an equal opportunity to pursue their goals/aspirations/ happiness.  Each individual therefore has an equal right to assume political power in order to execute their political aspirations.  Simply put, democracy is rule by the people, of the people and for the people.

Kenya is a democratic country that has embraced the system of representative democracy; this means that there are representatives that are tasked with representing the people as well as their opinions. These representatives usually Members of Parliament (MPs) do speak on behalf of the citizens about the issues that are most near and dear to them. The MPs work to ensure that the people’s interest are at the forefront of each act hence all their deeds ought to be in the best interest of the people.

Direct Democracy which is not widely practiced in Kenya (and in Africa at large) empowers the citizens so that they can have a word on all political matters, in that everyone is open to participate in governance. In a direct democracy, the citizens are responsible for making new policies and laws.  The people’s influence on the State affairs is not limited to electing representatives to the parliament or government. Citizens can express their views and intervene directly into their representatives’ activities via such tools as popular initiative and referendum.

As Kenyans struggle for their basic democratic rights it is worth noting that Kenyan public institutions such as Parliament and City Hall suffer from a massive loss of credibility. The citizens no longer have much confidence in the capacity of MPs and Councilors to tackle and solve major problems such as corruption, poverty, HIV/AIDS etc. This thus calls for enhanced citizen participation in the decision making process that shape national wellbeing.

Direct Democracy proponent, Jean Jacques Rousseau noted that citizens ought to be directly involved in the creation of the laws which are to govern their lives. He maintained that, "all citizens should meet together and decide what is best for the community and enact the appropriate laws. Any law which is not directly created by the citizens is not valid, and if those laws are imposed on people, that is equivalent to the people being enslaved. The citizens of a society must both develop and obey laws.

Jean-Jacques Rousseau was thus of the view that a law is only legitimate when those who are expected to comply with the law are also able to contribute to shaping that law. This father of Direct Democracy thus stressed the relevance of citizen participation in matters that concern them. 

Democracy rests on the principle that all sane people should have an equal share in shaping their country’s laws. Yet, from the day after the election, the elected representatives claim that only they are capable of making the decisions which convert the voters’ broad choice into the law of the land.

General Principles in the constitution

The outgoing Kenyan constitution did not have an avenue for the citizens to start an initiative or to trigger a referendum. Citizens could only participate in state prepared referendums, and this was only when it centered on constitutional change. However the new (incoming) constitution section 257 caters for popular initiative.   Kenyan citizens thus have the right to launch an initiative (backed by at least one million signatures), the initiative is then handed over to the Independent Electoral and Boundaries Commission which forwards it to the 47 county assemblies for discussion, if approved by majority counties (at least 24 counties) the draft bill shall be forwarded to parliament/the national assembly for debate and enactment.  If parliament fails to pass the bill then it shall be upto the citizens to decide in a national referendum.  It is worth noting that all referendums in Kenya are national, there is no provision for regional referendums.       
               
Kenyan citizens thus have a new law making role as they enjoy the right to add agenda to parliament, citizens can alter existing laws as well as put an issue on the country’s political agenda (citizen’s directly initiating legislative and political processes) This new development is good for the democratization process as it allows citizen to directly participate in national matters by stirring constitutional amendments when need be. However, there is still a long way to go as even the new constitution does not give the citizens a say in which international treaty the government signs or not, there is still a clear lack of bottom – up citizen participation, meaning that the civil society more so NGOs will continue playing the role of activism and advocacy. Kenyans still have no role to play in budget making among other national matters. Kenyan citizens are allowed direct involvement in important political decisions via national referendums, here they can approve or reject major constitutional changes.

Recall as an instrument of direct democracy is new and very welcomed in Kenya.  In the Kenyan constitution section 104 (1) the recall clause shall enable citizens to force out of office non-responsive members of parliament and triggering a by-election. The recall is however limited to Members of parliament – it does not apply to mayors, governors or even the president. 

The only aspect of direct democracy that has always been in practice in Kenya is that of holding public consultations, it is common for parliamentarians or government agencies and commissions of inquiry to go round the country and collect views on specific issues from the citizens. The public opinion is then reflected in government action. This was seen in first seen in 1991 when the then president Daniel Toroitich asked the vice president and others to go round the country and establish whether the citizens really favoured the introduction of a multiparty system. The practice of holding public consultations is not backed by law and it is usually carried out at the pleasure of the president.

These newly acquired instruments of direct democracy in Kenya will go a long way in checking unrepresentative and unresponsive tendencies of parliament. These will also provide a remedy to the voter’s feelings of powerlessness, frustration and alienation resulting from the domination of the political process by elitist politicians. It also provides a mechanism for a people to have a say on proposed legislation, thus allowing direct participation in lawmaking.

Article 258 also makes it possible for a citizen to file a case in public interest pushing for the enforcement of the constitution. 

A future for Direct Democracy in Kenya

Kenya is indeed ripe for direct democracy as most citizens now believe that decisions of national importance should always be made with their input, they wish to be co-drivers in running their country and not as ignorant passengers as has been the case since independence. 

Even though the availability of basic necessities such as affordable healthcare, security and food depend on political will and therefore politicians most Kenyans no longer trust them (politicians), they see them as dishonest, selfish, tribal and largely incompetent in leadership. This has seen the educated and enlightened urban dwellers insist on having a hand in policy making and being able to influence major state programs

Direct democracy urgently needs to be operationalised in Kenya so that the voters do not merely get to vote every five years to elect parliamentarians and the president, and then leave it to these people to “represent” them until the next election comes along.  Citizens ought to be able to monitor and check the government throughout its term. They should be able to submit motions and agenda for public debate whether the government favours it or not, most importantly they should be able to recall non performing politicians. 

To be continued

By  Mr. Alan E Masakhalia
African Correspondent, Democracy International.