MKU - Law and Democracy Notes

BLW2104 Law & Democracy notes
LAW AND DEMOCRACY NOTES
BLW2104
1
LAW, DEMOCRACY AND DEVELOPMENT
Definitions
Democracy is a form of government in which sovereign power resides in and is
exercised by the body of free citizens1. It provides for equal participation of
citizens in decision making. For example consultation of the citizens before
implementation of a new law. It seeks to inquire of the electoral process and
pluralism, civil liberties, the functioning of a government, political participation
and political culture of a particular country.
Law is a body of rules that govern a country. It can either be codified or
uncodified.
Development is a process and not a once off event since it is considered as a
progression from what existed previously. Historically it was defined in terms of
economic growth, that is, input and output. When development is maintained, it
can be said that there is a positive change. For example improved standards of
living and education.
Modern definition of development has been modified. It is defined as expansion
of freedom that a person enjoys.2
Development includes the whole range of economic, social and cultural progress
to which people aspires. Thus where economic advancement is a piece of
development.3
Law and development emerged as a discipline in the 1960s as an extension of
American international policy. The main aim of it was to engage massive use of
law to carry rapid changes in the society.
1
BLACKS LAW DICTIONARY 6TH EDITION
2
Amartya Sen
3
International panel on democracy and development.{ IPDD}
2
American concept of law and development was based on economic growth.
Modern law and development can be understood in two senses; study of how
law and legal institutions can be used to set off, monitor or otherwise regulate
the fact of social change and studying the conscious uses of the law to help bring
about sustainable development.
Democracy embodies four basic principles; freedom, justice, free participation of
citizens and human rights. These democratic principles are thought to constitute
a fundamental source of common value that can be described as the common
heritage of human kind. Though common to all, these principles will take on
different forms and will be realized means, in different societies.
There are two schools of thoughts when it comes to the relationship between
democracy, law and development. One group argues that there is a nexus
between the disciplines while the other disagrees.
1. Arguments in support.
Almost all of the developed countries in the world are democratic, hence the
assumption that democracy and development are intertwined.
Here, the argument takes two different routes. Which are;
i. Development first, then democracy
This basically means that development facilitates or brings about democracy.
• One of the simplest explanations is that once people start to acquire higher
levels of economic development and social maturity, they will begin to seek
more accountability from their governments, thus achieving better
democracy.4
• In other ways, an educated and growing middle class is more likely to
demand an active role in the running of their country, to the extent that even
4
https://www.accord.org.za/conflict-trends/link-democracy-development-africa/
3
repressive governments will have but little option to resist such demands
and become more democratic.5
• Seymour Lipset , an American sociologist,argues that, through a process of
'Modernization', countries may develop into successful democracies, after a
general process, of which democratisation is the final stage. Modernization
consists of a gradual improvement of social structures and development,
through authoritarianism, and a country will be a successful as a democracy
only after they reach a threshold of economic development. Even if the
emergence of democracy is independent of the level of development, it is
more likely to thrive in a more affluent nation. In Lipset's words, "The more
well-to-do a nation, the greater the chances that it will sustain
democracy".Lipset noted that, wealthier societies tend to have higher levels
of human capital, more advanced and varied means of communications,
larger middle classes, and greater social equality. Democracy is therefore,
more prevalent among wealthy nations than poor nations. Thus the creation
of democratic institutions are facilitated by development.6
ii. Democracy first, then development
This assumption argues that democracy should be the precondition for
development and promoting democracy is the approach strategically to reach
prosperity, development, security, and peace. This implies that democracy brings
about development.
55
6
https://s3.amazonaws.com/academia.edu.documents/39397835/Long_Essay.docx?response-content-
disposition=attachment%3B%20filename%3DDemocracy_and_economic_development.docx&X-Amz-
Algorithm=AWS4-HMAC-SHA256&X-Amz-Credential=AKIAIWOWYYGZ2Y53UL3A%2F20191011%2Fus-east-
1%2Fs3%2Faws4_request&X-Amz-Date=20191011T180626Z&X-Amz-Expires=3600&X-Amz-
SignedHeaders=host&X-Amz-
Signature=3a33ca3286c40abcdca18540914ec1796a6f3cf88d9ad211e5856286458af5d0
4
• Democratic regimes have never fallen after certain income levels. This
assumption is particularly true in most western countries where stability
and economic development has been strengthened. As such there has
been a deliberate move by most of African countries to follow the same
route to achieve development through the process of democratisation of
political system.
• The mere fact that most African countries are enjoying some economic
development since the attainment of independence is also a key indicator
that some degree of democracy is critical to promote development. With
the attainment of independence, a number of African countries have
strived to abide by the key elements that define democracy. For example,
almost all countries in Africa now have a political system for choosing
and replacing a government through free and fair elections.7
• Promotion of democratic values such as freedom of communication,
transparency at every level and judicial reforms is essential to modern
development. Impediment’s such as economic inequality and excessive
centralization can be controlled fully functioning judiciary.
• Rule of law which is a component of democracy is a necessary precursor
to efficient development. Rule of law ensure that there is justice in the
society. This will improve transparency and accountability of elected
leaders. Without such a thing development will be hindered by
corruption, massive looting and misappropriation of funds. 8
• Due to regular elections, democratic regimes need to respond to the
demands of their citizens and societal groups; the institutional
arrangement of election is the key for democracies better perform in
economy. In addition, due to a number of characteristic features of
democracy, such as accountability, checks and balances, low corruption,
7
8
IPPD
5
openness, competition, the flow of information, transparency, and
adaptability, democracies usually outperformed non-democracies on
most indicators of economic and social well-being 9Thus, the policy and
strategy to assist developing countries to develop is by promoting
democracy, not by economic growth.10
The argument of democracy-first is pretty straightforward and powerful; and
it shows a strong and positive correlation between democracy and
development, however, if democracy-first assumption is true, how can it
explain some cases exceptional to its argument? Like the cases of Taiwan and
South Korea, both of these two countries experienced dramatic economic
development without democratic institutions .Moreover, the case of China
also demonstrates that non-democracy still can achieve economic
development. Thus, perhaps democracy is not the necessary precondition for
developing countries to reach development.
2. Arguments against the relationships;
They are not necessary dependent on each other.
• One classic example to support this point is China. Despite being considered as
one of the least democratic states in the world, in the last few decades this Asian
nation has managed to experience impressive economic development, at a much
faster rate than most democratic countries in the world.11
• Another key indicator which shows that the link between democracy and
development is weak is the fact that there is a growing situation of authoritarian
9
(UNESCO,2015).
10
https://s3.amazonaws.com/academia.edu.documents/39397835/Long_Essay.docx?response-content-
disposition=attachment%3B%20filename%3DDemocracy_and_economic_development.docx&X-Amz-
Algorithm=AWS4-HMAC-SHA256&X-Amz-Credential=AKIAIWOWYYGZ2Y53UL3A%2F20191011%2Fus-east-
1%2Fs3%2Faws4_request&X-Amz-Date=20191011T180626Z&X-Amz-Expires=3600&X-Amz-
SignedHeaders=host&X-Amz-
Signature=3a33ca3286c40abcdca18540914ec1796a6f3cf88d9ad211e5856286458af5d0
10
11
6
states which are showing that they can reap the benefits of economic
development while evading any pressure to relax their political control.10 East
Asian countries such as China, India and Singapore fall in this category, as these
countries have managed to perform significantly better than democracies in the
Western world.
• In addition to this, the process of democratisation has not really been associated
with, or led to, economic development in most countries. This assessment is
particularly true in most African countries, which have taken extensive efforts
to democratise their political systems but have achieved very little progress in
terms of economic development. Malawi could be a classic example where
efforts to democratise have not really produced the expected goals. Even since
the introduction of multiparty elections in 1994, Malawi remains one of the
poorest countries in Africa.12
In conclusion; there is a strong relationship between the two disciplines. However it
may be important to note that this linkage is not clear in most African countries,
compared with how it is clear in western states. It is therefore critical for African
countries to come up with other innovative means of achieving development through
democracy because there is no prescribed solution to achieve either or both.
In regard to the nexus between the two, it should be applied with caution as it differs
from one country to another e.g. as shown by Asian countries.
DEMOCRACY IN THE AGE OF POPULISM
Liberalism and Liberal Democracy
12
7
Benjamin Constant defines liberalism by distinguishing between the “liberty of the
ancients” and the “liberty of the moderns.” For the ancients, liberty entailed “active
participation in collective power”—that is, in direct self-government. The liberty of the
moderns however consists in the selection of representatives through free and fair
elections in which all may participate on equal terms. Constant presents the “peaceful
enjoyment of individual independence” as the modern alternative to direct participation
in government. The exclusion of most citizens, most of the time, from direct self-
government opens up a large sphere of non-political life—economic, social, cultural, and
religious—that citizens expect to conduct on their own terms.
Liberal democracy is a political theory characterized by periodic
elections between different political parties, separation of powers into
different branches of government, respect for the rule of law, a market
economy with private property and the equal protection of human rights, civil
rights, civil liberties and political freedoms for all people. It is also called Western
democracy. Liberal democracies are governed using a constitution either formally
written or uncodified13 to delineate the powers of government and enshrine the social
contract. A liberal democracy may take various constitutional forms such
as constitutional monarchy or a republic. Liberal democracies usually have universal
suffrage, granting all adult citizens the right to vote regardless of ethnicity, sex, or
property ownership. The liberal democratic constitution defines the democratic
character of the state.
Liberal democracy is based on the republican principle which refers to popular
sovereignty. The people, this principle holds, are the sole source of legitimacy, and only
13
An "uncodified constitution" is a constitution made up of rules that are found from various documents in the
absence of a single document or written constitution. The documents used as references may include commentaries
by judiciary and legal experts. The uncodified constitution is sometimes referred to as “unwritten constitution”
although this not not entirely accurate as its elements are written down in several official documents. Under the
uncodified constitution, new conditions and situations of government are resolved by precedent or passing legislation.
Eg Israel, Saudi Arabia, UK, Canada, New Zealand etc
8
they can rightly authorize forms of government. Ideally, governments are instituted
among men, deriving their just powers from the consent of the governed.
What is Populism?
Most scholars use populism as a set of ideas focused on an opposition between the
people (good) and the elite (bad), although they still disagree on whether it is a fully
fledged ideology or more a political discourse or style.
Some regard populism as being an intrinsic danger to democracy; others regard it as the
only "true" form of democracy. Populists often present themselves as "true democrats".
It is argued that populism encourages a political structure that threatens liberal
democracy. While populism accepts principles of popular sovereignty and
majoritarianism, it is skeptical about constitutionalism and liberal protections for
individuals. Moreover, populists’ definition of “the people” as homogeneous cannot
serve as the basis for a modern democracy.
For those who believe in liberal democracy, it is sobering to review the events of the past
quarter-century. Twenty-five years ago, liberal democracy was on the march. The Berlin
Wall had fallen; the Soviet Union had collapsed; new democracies were emerging
throughout Europe, and Russia seemed to be in transition as well. South Africa’s
apartheid regime was tottering. Even though China’s government had brutally
repressed a democracy movement, it was possible to believe that a more educated and
prosperous Chinese middle class would eventually (and irresistibly) demand democratic
reforms. Liberal democracy had triumphed, it seemed, not only in practice but also in
principle. It was the only legitimate form of government. There was no alternative.
However with the recent decline of liberal democracy a new political group that seeks to
drive a wedge between democracy and liberalism has emerged. This is viewed as
an internal challenge to liberal democracy. Populists claim that liberal norms and policies
9
weaken democracy and harm the people. Thus, liberal institutions that prevent the
people from acting democratically in their own interest should be set aside.
How Does Populism Challenge Liberal Democracy?
According to William Galston, populism is not merely, as some observers have
suggested, an emotion-laden expression of disappointment over frustrated economic
expectations, resentment against rigged rules and special interests, and fear of threats to
physical and cultural security. Even if it lacks the kind of formal theoretical
underpinnings or canonical texts that defined the great “isms” of the twentieth century,
populism nonetheless has a coherent structure.
Populism accepts the principles of popular sovereignty and democracy, understood in
straightforward fashion as the exercise of majoritarian power. It is skeptical, however,
about constitutionalism, insofar as formal, bounded institutions and procedures impede
majorities from working their will. It takes an even dimmer view of liberal protections
for individuals and minority groups.
The aim of contemporary populism is what many scholars and at least one national
leader (Orbán) call “illiberal democracy”—a governing system capable of translating
popular preferences into public policy without the impediments that have prevented
liberal democracies from responding effectively to urgent problems. From this
perspective, populism is a threat not to democracy per se but rather to the dominant
liberal variant of democracy.
Some observers contend that populism, so understood, is not without merit: It represents
“an illiberal democratic response to undemocratic liberalism,”6 and thus is less an attack
on democracy than a corrective to a deficit thereof. These observers argue that elites, by
taking important issues such as economic, monetary, and regulatory policies off the
public agenda and assigning them to institutions insulated from public scrutiny and
10
influence, have invited precisely the popular revolt that now threatens to overwhelm
them.
Because populism embraces the republican principle of popular sovereignty, it faces the
question inherent in this principle: Who are the people? When we say “we,” what do we
mean? Today, “we the people” is understood to mean all citizens, regardless of religion,
manners and customs, and length of citizenship. The people is an ensemble of
individuals who enjoy a common civic status.
Historically, right-leaning populists have emphasized shared ethnicity and common
descent, while left-leaning populists have often defined the people in class terms,
excluding those with wealth and power. Recently, a third definition has entered public
debate—the people as opposed to cultural elites.
When populists distinguish between the “people” and the “elite,” they depict each of
these groups as homogeneous. The people have one set of interests and values, the elite
has another, and these two sets are not only different but fundamentally opposed. The
divisions are moral as well as empirical. Populism understands the elite as hopelessly
corrupt, the people as uniformly virtuous—meaning that there is no reason why the
people should not govern themselves and their society without institutional restraints.
And populist leaders claim that they alone represent the people, the only legitimate force
in society.
This approach raises some obvious difficulties. First, it is divisive by definition. In the
context of popular sovereignty, splitting a country’s population into the people and the
others implies that some parts of the population, because they are not really part of the
people, do not deserve to share in self-government. Individuals outside the charmed
circle of the people may therefore be excluded from equal citizenship, violating the
principle of inclusion that is essential to democracy.
11
Second, the populist definition of the people is inherently counter-factual. According to
Jan-Werner Müller, a leading scholar of populism, populists “speak and act as if the
people could develop a singular judgment, a singular will, and hence a singular,
unambiguous mandate.” But of course they cannot. In circumstances of even partial
liberty, different social groups will have different interests, values, and origins. Plurality,
not homogeneity, characterizes most peoples, most of the time.
Populism is the enemy of pluralism, and thus of modern democracy. Imposing the
assumption of uniformity on the reality of diversity not only distorts the facts but also
elevates the characteristics of some social groups over those of others. To the extent that
this occurs, populism becomes a threat to democracy, which, as Müller puts it, “requires
pluralism and the recognition that we need to find fair terms of living together as free,
equal, but also irreducibly diverse citizens. ”Whatever may have been possible in
classical republics, no form of identity politics can serve as the basis for modern
democracy, which stands or falls with the protection of pluralism.
Equally counterfactual is the proposition that the people are uniformly virtuous. They
are not, of course. Political movements based on this premise inevitably come to grief,
but not before disappointment gives way to a violent search for hidden enemies. Populist
leaders attack “enemies of the people” in moralistic terms, as corrupt, self-seeking, and
given to conspiracies against ordinary citizens, often in collaboration with foreigners.
Populism requires constant combat against these enemies and the forces they represent.
In this way, presuming the people’s monopoly on virtue undermines democratic
practice. Decision making in circumstances of diversity typically requires compromise.
If one group or party believes that the other embodies evil, however, its members are
likely to scorn compromises as dishonorable concessions to the forces of darkness. In
short, populism plunges democratic societies into an endless series of moralized zero-
sum conflicts; it threatens the rights of minorities; and it enables over-bearing leaders to
dismantle the checkpoints on the road to autocracy.
12
What Is to Be Done?
The defenders of liberal democracy must focus relentlessly on identifying and
countering threats to liberal institutions. An independent judiciary, freedom of the press,
the rule of law, and protected space for civil associations (secular and religious) represent
the first line of defense against illiberalism, and they must be safeguarded. At the same
time, political reforms are needed to restore the ability of liberal-democratic institutions
to act effectively. Gridlock frustrates ordinary citizens and makes them more open to
leaders who are willing to break the rules in order to get things done.
Liberal democrats must make their peace with national sovereignty. Political leaders can
assert the right of their nations to put their interests first without threatening liberal-
democratic institutions and norms. Again, this is a policy dispute within liberal
democracy, not about liberal democracy. The defenders of liberal democracy should
likewise acknowledge that control of borders is an attribute of national sovereignty, and
that liberal democrats can have a wide range of views on the appropriate number and
type of immigrants to admit. In recent decades, as public concerns about population
flows across national borders have intensified throughout the West, this issue has done
more than any other to weaken support for liberal-democratic norms and institutions.
DEMOCRACY AND ELECTIONS
Free, fair and transparent elections
More than half of the world’s population live under autocratic or partly free
governments, denied full civil liberties and unable to freely participate in political life. A
country cannot be truly democratic until its citizens have the opportunity to choose their
representatives through elections that are free and fair.
13
Critical development efforts cannot succeed without a legitimate and democratically
elected government that is responsive and accountable to its citizens. Elections provide
an important opportunity to advance democratization and encourage political
liberalization.
For an election to be free and fair, certain civil liberties, such as the freedoms of speech,
association and assembly, are required.
Elections can be a primary tool to foster political openings and expand political
participation.
Electoral processes offer political parties and civic groups an opportunity to mobilize
and organize supporters and share alternative platforms with the public.
Elections also serve to encourage political debate and public dialogue.
Free and fair elections play a critical role in political transitions by advancing
democratization and encouraging political liberalization – helping to promote peaceful,
democratic political transformation that lead to increased stability and prosperity.
Elections are a central feature of democracy. For elections to express the will of the
electorate, they must be ‘free and fair’.
‘Free’ means that all those entitled to vote have the right to be registered and to vote and
must be free to make their choice. In South Africa every citizen over the age of 18 is
entitled to vote. An election is considered ‘free’ when you can decide whether or not to
vote and vote freely for the candidate or party of your choice without fear or
intimidation. A ‘free’ election is also one where you are confident that who you vote for
remains your secret.
‘Fair’ means that all registered political parties have an equal right to contest the
elections, campaign for voter support and hold meetings and rallies. This gives them a
fair chance to convince voters to vote for them. A fair election is also one in which all
14
voters have an equal opportunity to register, where all votes are counted, and where the
announced results reflect the actual vote totals.
Free and fair elections bear the following characteristics:
1. Must be by secret ballot
2. Must be free from violence, intimidation, improper influence or corruption
3. Must be conducted by an independent body
4. Must be transparent
5. Must be administered in an impartial, neutral, efficient, accurate and accountable
manner.
Legal framework on democracy and elections in Kenya
The laws governing elections in Kenya are:
The Constitution of Kenya 2010
The Elections Act, 2011
The Political Parties Act, 2011
The Independent Electoral and Boundaries Commission Act, 2011
In addition to the foregoing, there are also the general principles of international law
and treaties ratified by Kenya that have a bearing on the electoral process and which,
too, impact the electoral process. The same have the force of law in Kenya by virtue of
article 2(5) and (6) of the Constitution of the Republic of Kenya which recognize them
as part and parcel of Kenya’s law. These include: the International Covenant on Civil
and Political Rights, International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) and the Convention on the Rights of
Persons with Disabilities (CRPWD). The African Charter on Peoples’ and Human
Rights also provide for elections.

15
Among the many provisions in the laws governing elections in Kenya, and in
particular the Constitution of Kenya 2010, are provisions on the political rights of
citizens. These are over-arching rights that play a defi nitive role in the manner in
which the other laws governing elections have to be crafted. See Articles 34-38
Exercise:
➢ Alayzing the 2017 presidential petitions
UNDERSTANDING THE DEVOLUTION ARCHITECTURE
Introduction
Devolved systems and governance in the context of many countries including Kenya
essentially means devolution. Devolution is a form of decentralization. However,
devolution is a more substantial and solid transfer of both political and economic powers
from the national to lower levels of governance. According to ICJ (2013, 5) devolution is
the process of transferring decision-making and implementation powers, functions,
responsibilities and resources to elected local governance structures.
According to ICJ (2013, 5) devolution in Kenya is based on the supremacy of the
Constitution, sovereignty of the people and the principle of public participation.
Supremacy of the Constitution means that the devolution is no longer optional and
discretional. It is solidly established by the supreme law and everyone including state
and private entities must be bound by that reality.
Further, the fact that devolution is buttressed by the sovereign power of the people
means that whatever governance aspirations and commitments are done at both national
and counties levels of governance shall be done on behalf of and for the people. Indeed
Article one of the constitution clearly stipulates that all state organs exercise their powers
16
as delegated by the Kenyan people. Kenyans have a choice to exercise these powers
either directly or indirectly through state organs – at both levels of government.
It is also important to note that devolution in Kenya is also based on a public
participation constitutional principle. That is to say that although state organs at both
levels of government exercise delegated powers from the people, the same people do
retain some residual powers and constitutional rights to be engaged on all major
decisions made on their behalf by those elected or appointed into state offices.
The devolved system of government is the centerpiece of Kenya’s new Constitution.
Forty seven county governments came into operation six years ago following the general
elections of March 2013. This marked a complete departure from the centralized system
of government that had been in operation since independence. The centralized system
was seen to be characterized with a myriad of challenges that included marginalization,
vast inequalities, mismanagement of resources and exclusion of many communities from
the decisions process.
Devolution is therefore a key pillar of the Constitution of Kenya by seeking to bring
governance closer to the people, with county governments being at the center of
dispersing political power and economic resources to Kenyans at the grassroots. The
devolved system of government is seen to be the key to unlocking Kenya’s economic
potential.
The Conceptual basis of devolution in Kenya
According to the World Bank report (n.d) on decentralization and sub-national
economics:
When governments devolve functions, they transfer authority for decision-making,
finance, and management to quasi-autonomous units of local government with
corporate status. Devolution usually transfers responsibilities for services to
municipalities that elect their own mayors and councils, raise their own revenues, and
17
have independent authority to make investment decisions. In a devolved system, local
governments have clear and legally recognized geographical boundaries over which
they exercise authority and within which they perform public functions.
The devolved form of government in Kenya is very ambitious because it collapsed three
previous levels of administrations into one level. That is to say, the current counties
resulted from the collapse of former provincial administrations, local authorities and
national functions that were being done at the local levels
Devolution in Kenya would need to be seen in the context of Kenyans historical clamor
for equitable distribution of national resources. For a time, it was perceived that central
government had skewed arrangement where certain regions in Kenya did benefit more
from state resources and developmental programmes. Further, devolution clamor was
informed by Kenya being a very diverse country with over forty two ethnic groups;
diverse climatic realities with northern Kenya being arid and semi arid and other areas
being arable among other political and economic realities (World Bank: 2012, 4).
Actually, the strong provisions for devolution in the new Constitution were a key source
of public support for the draft of the Constitution. The World Bank (2012, 5) has indicated
that just under 20 percent of supporters of the new Constitution did so because of the
strong provisions for devolution; this is the second most common response after a simple
desire for change, which measured at just over 20 percent.
The actual philosophy and reason behind Kenyans’ majority support for devolution can
be deduced from the constitution itself. A consideration of the objectives and principles
of devolution as clearly itemized in article 174 and 175 of the constitution would make
these aspirations of Kenyans clearer.
The objectives of devolution in Kenya
The objectives of devolution essentially outline the sovereign reasons why Kenyans
18
overwhelmingly voted for the new constitution whose one of the major highlights are
devolution promises and commitments. These objectives include:
a)To promote democratic and accountable exercise of power;
b)To foster national unity by recognizing diversity;
c)To give powers of self-governance to the people and enhance the participation of the
people in the exercise of the powers of the State and in making decisions affecting
them;
d)To recognize the right of communities to manage their own affairs and to further
their development;
e)To protect and promote the interests and rights of minorities and marginalized
communities;
f)To promote social and economic development and the provision of proximate, easily
accessible services throughout Kenya;
g)To ensure equitable sharing of national and local resources throughout Kenya;
h)To facilitate the decentralization of State organs, their functions and services, from
the capital of Kenya; and,
i)To enhance checks and balances and the separation of powers.
Other pertinent intentions were to protect and promote the interests and rights of
minorities and marginalized communities; promote social and economic development
and the provision of proximate, easily accessible services throughout the Country;
ensure equitable sharing of national and local resources throughout the Country;
facilitate the decentralization of State organs, their functions and services, from the
capital and the separation of powers. To this end, various laws have been enacted by
Parliament to create strategies for the implementation framework and the adoption on
which the objectives of devolution can be realized.
Principles of Devolved Government
19
Several principles of devolution need to be considered when implementing devolution.
These are embedded in the three principles stated in Article 175 of the Constitution.
Therefore, County governments established under the Constitution would, as a
constitutional obligation, reflect the following principles:
a) County governments shall be based on democratic principles and the separation of
powers;
b) County governments shall have reliable sources of revenue to enable them to govern
and deliver services effectively; and,
c) No more than two-thirds of the members of representative bodies in each county
government shall be of the same gender.
The legal framework and devolution
It is important to note that devolution is now a constitutional reality. The provisions in
the constitution on devolution are actually insulated and cannot be amended by
parliament. Any amendment on this chapter would require a direct mandate from the
people of Kenya through a referendum. Further, the constitution obligated parliament
to pass specific laws that would cement both the spirit and letter of devolution into the
Kenyan governance architecture. The legal framework on devolution include: –
1. The Constitution
The constitution is the main legal backbone of the entire devolution architecture. It
outlines the objectives and principles of devolution, the actual governance structures at
this level, the relationship between national and county governments, the functions that
have been devolved to counties among others. All other laws borrow and derive their
authority from the constitution.
2. The County Governments Act, 2012
20
This is the main legislation after the constitution. This law outlines the entire framework
of the constitution including the two arms of government at the county level; the county
assembly and executive.
The County Governments Act, 2012 stipulates the structure, functions and operations of
the county assembly including its membership, election and removal of the speaker as
well as the entire staffing arrangement of the assembly.
The Act also provides for the entire arrangement of the county executive including the
appointment, and removal, procedures of county executive committee members, chief
officers, county secretaries and other senior staff at that level. The law further provides
for the powers and functions of the governor and his or her deputy.
The law also provides, pursuant to Article 200 of the Constitution, for the manner of
nomination or appointment of persons to, and their removal from, offices in county
governments, including the qualifications of voters and candidates; the procedure of
assemblies and executive committees including the chairing and frequency of meetings,
quorums and voting; and the suspension of assemblies and executive committees.
It is important to note that this law came into effect immediately after the last general
election. It therefore follows that the law would need to be re-evaluated and possible
amendments included to make it more contextual and speak to prevailing realities. For
example, the law does not envision a desired complete dichotomy of staffing between
the county assembly and county executive at county level. Although the law provides
for both county assembly service board as well as county public service board to recruit
and manage staff, it does not completely give space for the two boards to conclusively
deliver on their mandate with absolute independence from the other.
3. Intergovernmental Relations Act, No. 2 of 2012
21
This law provides for a framework for consultation and co-operation between the
national and county governments. This law appreciates the fact that Kenya remains as
one country. The counties and national government are expected to consult and work
together for the wider good and service delivery to the citizens.
The law establishes institutional structures and mechanisms for intergovernmental
relations as well as a framework for the inclusive consideration of any matter that may
affect relations between the two levels of government and amongst county governments.
Evidently, this law would need to be reviewed. Although the law provides for the
summit where the President and county governors should meet and resolve any dispute
that may arise between the two levels of government, there has persistent wrangles
between the national and county governments. The summit has not met as regularly as
would be expected and therefore the possible reason these disputes have not been
resolved promptly explained by Roselyne Obala (2014). A review of this law would, for
example, include the minimum number of meetings the summit would meet among
other matters.
Transition to Devolved Government Act, No. 1 of 2012
This law provides for a legal and institutional framework for a coordinated transition to
the devolved system of government while ensuring continued delivery of services to
citizens. Principally, it provides for establishment and operations of Transition
Authority.
The Transition Authority (TA) is established under section four of the Act as a statutory
body with the mandate of facilitating and coordinating the transition to the devolved
system of government. The Authority is expected to execute its mandate within three
years following the first General Election held on March 4, 2013. The Transition
Authority has seventeen members, nine of whom are full time and a secretariat.
The Transition Authority has issued many advisory instruments to county governments
including on appointments of the executive committee members; classification of urban
22
areas and cities and transfer and transition of county and national assets at the county
level.
The Transition Authority has limited tenure as provided for under this law. The
Transition Authority’s residual mandate will essentially transit into possibly an inter-
ministerial committee housed under the Ministry of Devolution.
National Government Co-ordination Act, No. 1 of 2013
This Act, passed in 2013, provides for the establishment of an administrative and
institutional framework at the national, county and decentralized units to ensure access
to national government services in all parts of the republic. The law also provides for the
overall coordination and administration of the national government functions both at
national and county levels.
This law has not necessarily eased the tension between the national and county
governments. Indeed there has been a heated national discourse around the relationship
between the two levels of government. Obuya Bagaka (2010) in light of this tension has
said:-
‘The Provincial Administration will also need to re-orient its officials towards the
broader concept of devolution, and more specifically re-train them on the implications
of the politics of devolution. As laid out in the 2010 Constitution, Kenya’s politico-
administrative system will comprise the national and county governments headed by
politicians. At the county level, politicians such as governors will be accountable to their
electorate and thus will not be controlled by the central government.’
Moving forward, there will be need to re-evaluate the relationship and inter-linkages
between the national and county governments and how this can be strengthened and
systematized.
23
Public Finance Management Act, 2012
This is an extremely important law on public finance and management. This law
provides that public officers who are given responsibility for managing the finances are
accountable to the public for the management of those finances through parliament and
county assemblies.
It will be important to consider this law moving forward to establish whether its water-
tight in ensuring accountability of public finance and management.
Other over-arching frameworks
1. National Assembly and Senate
The constitution establishes other enabling framework whose main is to promote and
protect devolution and devolved governments. These include both the National
Assembly and Senate.
Articles 109 to 113 of the Constitution notes that senate has a specific mandate to protect
devolved governments. The constitution provides that the main role of senators is to
represent the counties, while also serving to protect the interests of the counties and their
governments. The senate also determines the allocation of national revenue among
counties, as provided for in article 217, and exercises oversight over national revenue
allocated to the county governments.
Challenges and emerging issues
However, fundamental challenges have continued to dog the Counties including
irregular or delayed disbursement of devolved funds from the national Exchequer; low
24
revenue collection levels from local sources; weak and uncoordinated planning and
execution; stalled projects; inadequate financial resources; corruption; misallocation of
the available financial resources; over-indebtedness including bank overdrafts
negotiated to off-set wages and salaries; huge pending bills; bloated workforce;
tribalism, nepotism and clannism in the employment and deployment of workers;
persistent political wrangling and infighting; inadequate capacity at the county level to
effectively and efficiently perform the devolved functions; instances of duplicity of effort
at both the national and county levels; and utilization of budgetary allocations on non-
core activities in contravention of the Public Finance Management Act. However, there
are opportunities for Foreign Direct Investment (FDI) and capital inflow; Public-Private
Partnerships (PPP); Grants; exchange programmes; and wider markets for local
products, that the Counties need to explore and pursue.
Emerging issues within the Counties include the need for better planning; strengthened
performance management framework; improvement in quality of County leadership;
prioritization of investment in thematic areas based on comparative advantage;
strengthened public participation in project identification, planning and execution;
intensified financial resource-mobilization; improved governance framework to
facilitate prudent utilization of resources and enforce accountability at all levels;
rationalization of staffing levels; optimization of the wage-bill; institutional capacity
building; determination of relevant training needs and corresponding staff training;
eradication of duplicity of effort; massive sensitization of both leaders and the citizens
on relevant pieces of legislation supporting devolution; massive Culture and Attitudinal
change programmes; strengthening of the monitoring, evaluation and reporting
framework; enhanced strategic alliances and partnerships; effective management of
resistance to change; and benchmarking with best-case examples globally. Unless and
until the aforestated strategic issues are adequately addressed, it would remain
insurmountable for the devolved system of government in Kenya to facilitate prudent,
efficient and effective delivery of services to the citizenry at the grassroots.
25
THE STATE OF JUDICIAL INDEPENDENCE IN KENYA - REFLECTIONS FROM THE 2017
PRESIDENTIAL ELECTIONS14
The Constitution imposes an obligation on judges to interpret, enforce, and apply its
provisions in a manner that would help alter Kenya’s political culture, by facilitating a
move towards democratic and accountable governance. To achieve this objective, the
Constitution provides for an elaborate institutional and normative framework that
guarantees de jure judicial independence and functional autonomy to the judicial branch
of government. (See Chapter 10 Constitution of Kenya)
This has been done to ensure that the Judiciary operates optimally and is not captured
and hollowed out. However, a great deal of research has found that formal constitutional
protections do not guarantee a truly independent Judiciary. This has been the experience
of Kenyans following the 2017 elections with the re-invigorated post-2010 Judiciary
facing challenges, including attacks by other state organs, in enforcing its
constitutionally vested mandate. The 8 August and 26 October 2017 Presidential
elections and adjudication of the disputes surrounding those elections brought to the
fore institutional challenges that the Judiciary faces and its capacity to resist attacks on
its independence.
Currently, the Kenyan judiciary faces a number of challenges that threaten not only its
independence, but its ability to ability to promote democracy. Some of the challenges
that have been experienced by the judiciary in the recent past are discussed herein.
Budgetary Manipulation as an Assault on Institutional Independence
Following the annulment of the 8 August 2017 presidential election, the Executive made
a decision to slash the budgetary allocation for the Judiciary and a number of
independent constitutional offices. The government rationalized this reduction of
budgetary allocation on the basis that it needed money for the repeat presidential
14
Excerpt from ‘The Kenya Section of the International Commission of Jurists (ICJ Kenya), Reflections on
the 2017 Elections in Kenya, Paper Series on Emerging Judicial Philosophy in Kenya’
26
elections and to enhance free day secondary education. The Judiciary lost 1.95 billion
Kenya Shillings (Ksh.) in the budget cuts presented by the Cabinet Secretary for the
National Treasury, Henry Rotich, through the Supplementary Estimates Number 1 for
the financial year 2017/18. The loss of Ksh. 1.95 billion represents 11.1 per cent decrease
from an earlier allocation of Ksh. 17.561 billion towards the dispensation of justice. Of
the Ksh. 1.95 billion lost by the Judiciary, Ksh. 1.07 billion was slashed from the
Judiciary’s gross current estimates while development spending lost Ksh. 879.9 million.
The JSC, an independent Commission that plays a crucial support role to the Judiciary,
had its budget slashed by 62.6 per cent. The JSC’s allocation was reduced from Ksh. 490.2
million to Ksh. 183.5 million. The slashing of the funds after the annulment of the 8
August 2017 elections shows that the Judiciary continues to be deliberately neglected in
terms of resource allocation even in the post-2010 era. The intentional withholding of
funds from the Judiciary shows that the institution continues to be under-resourced thus
compromising its ability to deliver justice effectively. The Judiciary’s budget was further
capped from Ksh. 31.2 Billion to Ksh. 17.3 Billion through the National Government’s
Budget Policy Statement and further to Ksh. 14.5 Billion by Parliament through the
Appropriation Act. The process of budgeting and monetary allocation remains a political
process as the political branches of government uses this as a mechanism to reward or
punish the Judiciary, depending on the stance that the Judiciary takes in political
disputes. Furthermore, the process of lobbying by the Judiciary for more financial
resources remains a political endeavour that potentially threatens judicial independence.
A possible solution to this threat to judicial independence would be a constitutional
amendment to have a fixed percentage of the budget reserved for the Judiciary as this
would eliminate at least the appearance of negotiation between the Judiciary and
political branches of government. This includes the enactment and implementation of
legislation and rules underpinning the provisions of the Judiciary Fund as envisaged by
the Constitution of Kenya 2010.49.
Rhetorical Attacks on the Judiciary and Social Media Propaganda
27
After President Uhuru Kenyatta’s magnanimous speech at State House, he held an
impromptu rally in Nairobi on the afternoon of 1 September 2017 and accused the Court
of ignoring the will of the people and dismissed the judges as Wakora (Swahili for thug).
At another meeting on 2 September 2017, with elected officials from his Jubilee Party at
State House, he issued worrisome veiled threats to the Judiciary. The President is
reported to have said in words directed to the Judiciary:
Who even elected you?...We have a problem and we must fix it… We shall revisit
this thing. We clearly have a problem.
Taking cue from the President, the Cabinet Secretary for Internal Security, Dr. Fred
Matiang’i, has continued the trend of unjustified rhetorical attacks on the Judiciary.
While appearing before the Administration and National Security Committee of the
National Assembly, to explain the circumstances leading to the cancellation of the
citizenship and purported deportation of the opposition activist, Miguna Miguna- a
process which violated and defied several court orders issued by the High Court, the
Cabinet Secretary accused judges of being in unholy alliance with the opposition and
opposition activists. He is reported to have said:
There is a clique in the Judiciary that has been captured by the civil society and
activist lawyers who want to embarrass the government …It is an evil clique of
judicial officers who want to drag us by the collar through trial by the public court.
Concurrent with the harsh rhetorical attacks on the Judiciary, there has been well
choreographed propaganda using social media and other platforms aimed at tarnishing
the reputation of judges who were part of the majority in the 1 September 2017 decision.
Individuals linked to the President’s communication team created the #WakoraNetwork
hashtag, and tried to depict judges as corrupt and acting under the influence and
direction of a civil society cartel that they allege have illegitimately taken control of the
Judiciary. These harsh rhetorical attacks and social media propaganda directly
undermine the central tenets of rule of law and judicial independence. This kind of attack
undercuts more than the reputation of an individual judge; it undercuts the premise of
28
Kenya’s judicial system: judicial independence and respect for the rule of law. Even if
judges rose above the relentless hostile rhetoric, the long term effects are damaging in
terms of politicization of the courts. As Issacharoff points out, such attacks alert us to the
precarious position of the courts and their limited power to narrow the gap between
constitutional tenets and practice because in “repeated engagements with entrenched
political power, a confrontational Judiciary is at grave risk of emerging as the loser”.
Furthermore, the rhetorical attacks and social media propaganda on judges, is evidence
that Kenya’s constitutional experiment has not (yet) fully delivered on its promise.
Kenya remains a deeply authoritarian state. Respect for the values and principles of rule
of law, constitutionalism, human rights, openness, and transparency is not apparent
among state functionaries or in the actions or attitudes of organs of state. The tension
that arises within the governance system whenever the Judiciary holds the other arms of
government accountable is proof that the system of checks and balances is not as effective
as intended by the drafters of the 2010 Constitution. The political branches of
government see the Judiciary as an intrusive and unnecessary irritant whenever their
actions are questioned. They do not believe that public power should be accountable or
limited. However, it should be noted that the intervention by the courts in the political
process has been in the interest of protecting and expanding democratic rights, not in
order to establish courts as an unaccountable judicial superpower as alleged by critics.
Against the background of democratic stagnation (and probably even recession), judicial
intervention is exactly what Kenya’s young democracy needs in order to consolidate. It
should be pointed out that Kenya’s post-2010 constitutional democracy was established
to replace the deeply authoritarian pre-2010 system. The ruling elite and the state
bureaucrats who govern the country were cultured in the pre-2010 dispensation thus the
‘habits’ of that era – including absolute and unchecked exercise of power have not
entirely dissipated. This informs the discomfort expressed by the ruling elite and state
bureaucrats to the new reality that the courts refuse to bend to their desire for
unaccountable governance.
29
It is true that these rhetorical attacks and social media propaganda against the Judiciary
have not, or have not yet, materialized into laws or constitutional amendments. Thus,
one may arguably claim that this study gives them “too much weight” in the discourse.
To this, Ilan Saban provides a strong answer. Counter-reaction is not fulfilled in
crystallizing an explicit and formal legal change. Condemnatory and threat expressions
by powerful political elites carry great influence both on judges and the society within
which they act. Moreover, the influence of such manoeuvres is strong because the threats
become not only more frequent but more real. The explicit threat in a severe counter-
political backlash towards the Judiciary carries with it credibility, in light of the
governing Jubilee Party’s clear control over the legislative process. An additional
purpose of the various attacks directed at the Judiciary is not only to deter the courts, but
to carry symbolic and rhetorical means in the struggle over the legitimacy of the role of
the Judiciary in resolving political controversies.
Ignoring/Defying Court Orders
The question of compliance with court orders is not new. One of the worse areas of non-
compliance with court judgments by the government is with respect to monetary orders,
as one lawyer noted:
“to get paid on a monetary judgment you must have connections or friends in the
treasury. There is no way of enforcing the monetary judgment.”
However, the bad blood between the executive branch of government and the Judiciary
following the 2017 elections has escalated the problem. The list of cases where the
government has defied the courts includes a number of game-changing political
judgments, including orders for the release of the detained and subsequently deported
opposition politician Miguna Miguna, and orders to switch on spectrum for several
television stations that remained switched off by the Communication Authority of Kenya
for airing the mock swearing in of the leader of opposition Raila Odinga as the “People’s
President” on 30 January 2018. If court orders in the most high profile of cases are not
adhered to at the very highest levels of government, the trickle down effects are
30
significant. Rule of law means both citizens and politicians respect the law and its
institutions. Furthermore, judicial independence cannot be secured if the impression
given by the government is one where judgments are only adhered to when it is
politically expedient to do so. If the decisions of the courts are not obeyed and their
orders are not effectively implemented, the force of the Constitution will wane and it will
become largely a semantic document. This follows from the truism that courts are in fact
unable to bring about significant policy change without the political will to enforce their
decisions.
Attempted Co-option of the Judicial Service Commission
The Constitution in an attempt to safeguard the institutional independence of the
Judiciary establishes the JSC to promote and facilitate the independence and
accountability of the Judiciary. The JSC has a crucial role to perform in the appointment
and removal of judges. It recommends judges for appointment by the President, except
for the Chief Justice and the Deputy Chief Justice whose appointment must be approved
by the National Assembly.
It also initiates the process of removal of judges, though the determination whether a
judge should be removed from judicial office vests with an independent tribunal
appointed by the President to inquire into the suitability of a particular judge to hold
office. These twin roles, appointment and initiation of judges’ removal process, makes
the JSC a powerful actor in the control of the Judiciary in the Kenyan context. This has
attracted the attention of the executive branch in the post-2017 elections period which
has embarked on the process of reigning in and taking control of the JSC. The JSC is
composed of the Chief Justice as its Chairman, one High Court judge, one Court of
Appeal judge, one Supreme Court judge, one Magistrate, the Attorney General, two
advocates (a man and a woman), one nominee of the Public Service Commission, and a
man and a woman to represent the public, not being lawyers appointed by the president
with the approval of the National Assembly. The composition of the JSC is carefully
crafted and excludes political interests – this was designed to prevent party political
31
considerations from trumping other considerations and to insulate the process of
appointment and removal of judges from political considerations. This is so because in a
constitutional democracy like Kenya, judges who enforce an expansive Constitution
would be particularly vulnerable to attacks by politicians when the decisions of the
judges have far-reaching political consequences.
Dissatisfied with the performance of the previous members of the JSC, who had largely
supported the independence of the Judiciary, the President replaced four members of
the JSC. The Attorney General, Githu Muigai was replaced with Justice Paul Kihara
Kariuki, who was the President of the Court of Appeal at the time of his appointment.
The two representatives of the public, Winnie Guchu and Kipng’etich arap Korir, were
replaced with Olive Mugenda, and Felix Koskei. While the representative of the Public
Service Commission, Margaret Kobia, was replaced by Patrick Gichohi.39 It should be
noted that the appointments of the three commissioners, the exception being the
Attorney General, was later challenged in court for lack of public participation and the
High Court temporarily barred the three nominees from assuming office.40 In addition,
the appointment of Justice Kihara Kariuki as the Attorney General from the bench raises
worrying concerns about the independence of the bench. Appointing a judge to serve as
the top-most legal adviser of the executive branch undermines the independence and
integrity of the judge as well as violates the principle of separation of powers. The
appointment points to a possible trend of dangling the carrot of career advancement
through attractive executive appointments for judges. Angling for such appointments
has the cumulative effect of eroding judicial independence.
Judiciary as a Stumbling Block to Democratic Consolidation in Africa
The judiciary in Africa has been accused of being the current stumbling block in relation
to consolidating democracy in Africa in line with the gains that had been made in the
democratic waves of 1980s and 1990s. According to Kaaba, the manner in which
presidential election petitions have been disposed of with is generally ‘unsatisfactory
32
and a disincentive for the further growth and consolidation of democracy’ in Africa.
Kaaba therefore identifies the following patterns as being responsible for the negation of
democratic advancement in Kenya by sifting through various decisions of African
Courts:
(a) All cases are decided in favour of the status quo;
(b) Many cases are dismissed on flimsy technical and procedural rules without
consideration of the merits;
(c) There is misuse of the substantial effect rule to uphold defective elections;
(d) In some countries, the resolution of disputes is inordinately delayed so as to render
the whole process nugatory; and;
(e) Judges simply fail to address the issues presented before them by constraining
themselves from making appropriate decisions.
From the above list, whilst all the other patterns are also relevant, pattern (c) is perhaps
directly applicable in relation to election-related violence jurisprudence. Consequently,
Kaaba argues that the fact that many African countries that are politically stable have
election laws and regulations, this has failed to guarantee free and fair elections because
of various factors including violence. On the basis of the substantial effect rule adopted
from the English case of Morgan v. Simpson many African countries have been reluctant
to nullify election on the basis of minor irregularities or infractions of the rules.
JUDICIAL ACTIVISM AND DEMOCRACY
Introduction
Democracy is a form of government where people surrender some of their rights to a
small elite body who are elected by people to rule over themselves. This elite body or the
public representatives make law for the betterment of people. Once elected the public
representatives remain all powerful till the end of the term by constitutional provision
33
or otherwise because the constitution does not provide “call back” power to the people.
The assumed principle is that these public representatives should make laws for the
benefit of the people. The loophole in most administrations is that they are not very
transparent and popular participation is bare minimum. The prescribed methods of
control on government have been largely unsuccessful. So in such a situation a vacuum
is created in governance.
The judiciary as such and by principle cannot act unless an aggrieved party does not
knock its door. Hence this vacuum is substantial. As per the theory of “Power vacuum
filling” some organ has to extend its influence and it is only natural for judiciary to
extend its influence in the sphere where proper governance is lacking. Many argue that
it is against the principle of democracy. Judiciary under the veil of activism serves as a
watch dog for preserving the basic spirit of democracy which is concerned with the
welfare of the people.
Meaning of Judicial Activism
Judicial activism, like many catchwords, has acquired so many different meanings as to
obscure more than it reveals. Judicial activism is different from the judicial review or
other process of jurisdiction in the sense that under the gamut of judicial review the
judiciary can extend its influence to the spheres of the executive and the legislative.
Judicial activism simply means a pro-active judiciary which does no limit itself to the
interpretation of law only but also sees if the law affects people adversely. One of the
greatest contribution of judicial activism has been to provide a safety valve and a hope
that justice is not beyond reach.
In academic usage activism usually means only the willingness of a judge to strike down
the action of another branch of government or to overturn a judicial precedent, with no
implied judgment as to whether the activist decision is correct or not. Activist judges
enforce their own views of constitutional requirements rather than deferring to the views
34
of other government officials or earlier courts. Defined in this way, activism is simply the
antonym of restraint.
Decisions may be labeled activist either for striking down legislative or executive
action or for allowing it to stand.
Judicial Activism: The Indian experience
When India’s founding fathers wrote the Constitution, they created three arms —
Parliament, Executive and the Judiciary — of the state that together were to be the
keepers of the ideals of the nation as enshrined in the Constitution. Over the past several
months, however, the Parliament has become dysfunctional, the Executive has abdicated
its duties and the Judiciary is cracking the whip. An active judiciary is one that takes its
task of defending the fundamental rights of the people and their liberties against the
onslaught of the state, earnestly. As far as judges are concerned, it is a matter of mindset.
One judge could say that policy formulation is the job of the Executive and Judiciary
does not need to intervene while another could believe that even in policy formulation,
the Judiciary would need to step in to guard fundamental rights. The occasion for this
often arises when the Executive fails to discharge its statutory, constitutional obligations.
As a result of this failure, the fundamental rights of the people are violated.
The Indian judiciary has been constitutionally vested with the power of review to keep
the Executive and Legislature within constitutional boundaries. The Judiciary can strike
down any law that is beyond Parliament’s legislative competence or is violative of the
Constitution. Similarly, it can strike down any Executive action, if there is any patent
illegality or arbitrariness to it.
To understand the concept of the judicial activism two theories have been expounded.
The first theory “Power vacuum filling” theory provides that if in a system there is a
vacuum because of the lack of any particular organ or the inaction of it, then other organs
extend their influence to the vacuum created. Nature does not allow the vacuum to
remain as such. In the government in certain areas vacuum is created due to the lack of
35
interest in executive or legislative or simply due to the inaction and indifference in their
part. This vacuum is filled by a dynamic judiciary. This is called the judicial activism.
The other theory of “social want” provides that people want something which is neither
provided by the executive or the legislative. So judiciary takes it upon itself to provide
the wants of the people. So it became proactive and this proactiveness is called as judicial
activism.
The doctrine of separation of powers is embedded in the Indian constitutional scheme.
Explaining the need for separation of powers, Montesquieu wrote: “There is no liberty
where judicial power is not separated from both legislative and executive power. If
judicial and legislative powers are not separated, power over the life and liberty of
citizens would be arbitrary, because the judge would also be a legislator. If it were not
separated from executive power, the judge would have the strength of an oppressor…”
When one talks about the judicial activism in India the following Supreme Court
judgments can be referred to.
Sunil Batra vs. Delhi Government- In this case Supreme Court reinterpreted the writ of
Habeas corpus as not only producing a person in the court but also preventing a person
jailed from the inhuman treatment in the prison.
M. C. Meheta vs. the State of Tamil Nadu- In this case Supreme Court not only pronounced
that deployment of children in hazardous factories is unlawful but also provided various
guidelines for the children welfare.
Judicial activism earned a human face in India by liberalising access to justice and giving
relief to disadvantaged groups and the have-nots under the leadership of Justices V.R.
Krishna Iyer and P.N. Bhagwati. The courts on several occasions have issued directions
in public interest litigation (PIL) covering a wide spectrum of cases such as road safety,
pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by
former and serving legislators, nursery admissions, and admissions in institutions of
higher learning. The common citizens have discovered that the administration has
36
become so apathetic and non-performing and corruption and criminality so widespread
that they have no recourse except to move the courts through PIL, enlarging the field for
judicial intervention.
Is Democracy Under Threat?
No, Given the above scenario, judicial activism may not be a derailing force provided it
does not go into excess. In fact limited judicial activism may keep democratic evolution
on proper track and ensure that chaos and excessive behavior does not develop.
Independence is not over-interference. The great contribution of judicial activism in
India has been to provide a safety valve in a democracy and a hope that justice is not
beyond reach. Judicial activism has come to stay in India and will prosper as long as the
judiciary is respected and is not undermined by negative perceptions, which have
overtaken the executive and the legislature. There is concern among the public about
lack of transparency in judicial appointments and a sense of increasing unease because
of a lack of a credible mechanism to deal with serious complaints against the higher
judiciary. For instance, there are laws to prevent children from working in hazardous
occupations. Now there are parents who willingly let their children work because of
economic necessities. The factory owners fix the inspectors and the laws that are
supposed to protect the children are not implemented. In such cases, a court hearing a
complaint from a bonafide NGO can order the state to enforce the laws because by not
implementing them it is violating the children’s fundamental right to a healthy life. That
is activism in the right sense.
Conclusion
Judges should, however, be careful about one thing. Judicial activism should not become
judicial adventurism. They should not get into areas in which they do not have any
expertise. The court, for instance, can order the government to prepare a welfare scheme,
but not undertake the task of framing it itself. And in PILs, the Judiciary should refrain
from the temptation of getting media headlines. India cannot afford to let the Judiciary
to fail as it is the only ray of hope and protection to the common man against arbitrary
37
actions of the Executive. The great contribution of judicial activism in India has been to
provide a safety valve in a democracy and a hope that justice is not beyond reach. The
doctrine of separation of powers is embedded in our constitutional scheme, and the soul
of our constitution should be kept intact.
CIVIL SOCIETY AND DEMOCRATIZATION
Understanding the concept of civil society.
What is a society?
A society is a group of humans that form a semi-closed system, in which most
interactions are with people belonging to the group. A society is a network of
relationships between people.
The word society comes from Latin where socius means "companion, associate,
comrade or business partner." To understand the concept society however, you have
to go beyond the “meaning of the words” and explore how society is experienced, and
what traditions and sciences have to say about society.
A society has two basic elements: a) the persons and b) the relation that links them. A
society is not a substance, i.e. a being that exists in itself. It is a relation, i.e., something
that links people between them. People can belong to many societies. They are the
same people, but the relations between them are different. You can belong to Kenya,
to a cooperative society, and to my family (a natural society). In this example I belong
to three different societies.
38
What is civil society?
The concept of an IDEAL CITIZEN is at the core of the definition and meaning of civil
society. A citizen is one who identifies with, belongs to and is recognized by a polity
i.e. an organized society. In Plato's (Socrates’ student) conception of justice, both for
individuals and for the ideal state, he viewed individuals as mutually dependent for
their survival and well-being. Plato's ideal state was a republic with three categories
of citizens: artisans, auxiliaries, and philosopher-kings, each of whom possessed
distinct natures and capacities. In the just state, each class of citizen had a distinct
duty to remain faithful to its determined nature and engage solely in its destined
occupation. An ideal citizen is one who is voluntarily active in civic participation, and
this has significant impact on the decision-making processes in the management of
public (or shared) affairs of society. Civility is that which causes people to develop
durable habits, values, knowledge, and skills relevant to their membership in
communities.
The civil society sector is associated with the attributes voluntarism and independence,
as well as civility, but it is also a great deal more.
The ideas of civil society date back to John Locke (society creates order and provides
the state legitimacy; government is derived from agreement between citizens);
Thomas Hobbes (society uses the force with the aim to uphold the contacts); David
Hume (self-interest of every citizen will eventually achieve what is in the interest of the
whole society
– the idea is linking to utilitarianism which calls for the maximization of goodness in
society).
A common agreement about civil society is that it represents the balance between
39
rights granted to individuals in free societies and the responsibilities required of
citizens to maintain those rights. Sara M. Evans and Harry C. Boyte (1992) locate the
primary territory of civil society as “The public spaces, in which ordinary people
become participants in the complex, ambiguous, engaging conversation about
democracy: participators in governance rather than spectators or complainers, victims
or accomplices. This space constitutes the environment in which people are able to
learn a new self-respect, a deeper and more assertive group identity, public skills, and
values of cooperation and civic virtue. (Evans & Boyte)
Civil society is widely understood as the space outside the family, market and state.
What constitutes civil society has developed and grown since the term first became
popular in the 1980s and it now signifies a wide range of organized and organic
groups including non- governmental organizations (NGOs), trade unions, social
movements, grassroots organizations, issue-based lobbies, online networks and
communities, and faith groups (VanDyck, 2017). Civil society organizations (CSOs),
groups and networks vary by size, structure and platform ranging from international
non-governmental organizations (e.g. Transparency International) and mass social
movements (e.g. reform protest movement in Tunisia) to small, local organizations.
Among many points of view on civil society, most of them have several common
characteristics (Ghaus-Pasha, 2004):
1. existence besides the state and the market
2. existence of pluralism
3. participation of active citizens with common needs, interests and values
4. cooperation and joint effort
5. development through a fundamentally internal and autonomous process
which is ideally not easily controlled from outside
40
Civil society is most known for providing citizens with the opportunity to actively
participate and to enforce the democratic preconditions via influence and pressure to
decision-makers in public affairs. In other words, it creates fertile ground to promote
and to support the rights and obligations of every citizen.
The role of civil society in promoting democracy
The phenomenon of civil society as a part of the public governance system makes the
subject an important area of study for students of law and public administration. The
increased attention on the role of civil society in public governance is based on these
4 pillars (Dzatkova, Veronika):
• social and political development,
• increasing requirement to strengthen public awareness
• enforcement of civil participation and
• demand to balance the relationship between citizens and
government
Governance as a development issue
Democracy processes are relevant in the management of shared (public) affairs. The
management of shared affairs is Governance; that is the means by which citizens in
their various formations, public and private institutions, and businesses aggregate,
articulate their interests, exercise their rights and obligations, and mediate their
differences. Good governance is not something that the state gives to society, but
rather is the means by which society and the individuals whocomprise it regulate the
various aspects of their collective life. This process is based on the universal values
found in many international, continental, regional and national charters, agreements,
41
treaties etc.
42
Civil society plays an important role in building and maintaining democracy. Civil
society organizations and movements can significantly influence public policy and
government programmes, international priorities and decisions as well as social
attitude.
The most common roles that civil society performs towards democratization include:
To empower citizens: Civil society empowers citizens with knowledge on their rights
and duties and the necessity of them. It also encourages the traditionally excluded
groups such as indigenous communities, women, young people, minorities to utilize
their rights and the access to power. Civil society mobilizes these constituencies to
participate more fully in politics and public affairs on the basis of knowledge and
information.
To hold government accountable and keep state power in check: By exposing and
demanding public accountability, civil society checks abuse of political power, misuse
of public office for private gain and violations of the law. Civil society often has the
intellectual resources for public policy analysis and advocacy, giving it immense
power to demand for public accountability on the basis of specific evidence.
To demand for efficient public services: Civil society actors tend to be well informed
on the rights of citizens to quality public services and the duty of the state and its
institutions to provide these services. The detailed knowledge, especially on the basis
of the Constitution and the law, gives civil society the power to demand for efficient
public services on behalf of citizens.
To mitigate political conflicts: Conflicts are common in in institutions responsible for
building democracy because of the wide range of
43
competing interests. A strong civil society mitigates the main differences and can help
the state in ensuring that public interest prevails over private interests.
To promote democratic attributes: Civil society advocates for value- based
management of public affairs. In so doing it promotes democratic attributes amongst
citizens such as tolerance, willingness to compromise and respect for diversity.
To support political & economic reforms: Without the support of public and the
legislature, political and economic reforms cannot succeed. Civil society performs this
role and paves way for reforms.
To develop new leaders: People in political power almost always fail to represent the
society’s best interests, favoring narrow partisan and personal interests. Civil society
helps in identifying and training the new leaders in society by building social capital
and enabling citizens to identify and articulate their values, beliefs, civic norms and
democratic practices. Out of these new leaders emerge new crops of political leaders.
To provide voter education and election monitoring: Well-informed free choice is
critical to the sustenance of democracy and the rule of law. Civil society organizations
often provide non-partisan civic and voter education and also participate in
monitoring elections to public office to check the legitimacy of the process and the end
result. This enhances public trust in the government and public institutions.
To supplement government in delivering essential services: Where there is an added
advantage or greater capacity, civil society plays a very critical role in providing public
services like healthcare, education, promotion of access to justice, etc
44
Overall, representatives of civil society and their increasing power strengthen the
growth of informed civic participation and in this way they influence public decision-
making process. Efficient civil society acts as a defender on public interest in the
relationship between the state and public.
Decline of Kenyan civil society
There is a lot of public commentary on “civil society is dead”…. This is a reflection
of a void (whether real or perceived) in the roles civil society actors have played in
public affairs. Besides the feeling of absence of civil society in public affairs,
questions about civil society’s value, legitimacy and accountability are increasingly
being raised.
Some reasons for this decline of civil society in Kenya include:
• Government attitude towards civil society: - The Jubilee/Uhuruto

government came into office extremely nervous of and hostile to civil society.
Civil society was perceived to have played an active role in unearthing
details of 2007/8 post- elections violence for which the Jubilee principals were
partly blamed and hauled to the ICC.
• Because of our weak governance (institutions, culture, etc), civil society is

frequently equated with political opposition. This can even be the case in
countries that are very popular with donors. Many African countries,
including Ethiopia, Kenya and Uganda, specifically introduced legislation to
curtain operations of CSOs and to limit funding from foreign donors.
• The clamor for political office in Kenya is increasingly seen as an opportunity

for making lots of money, including through rent
45
BLW2104 Law& Democracy notes
seeking. Where traditional political organization has failed, civil society
has done well in incubating Kenya’s political leaders.
• The soft underbelly of civil society organizations: Most of them are agenda
driven, rarely paying attention to internal institution building. Most CSOs
hardly have credible institutional basis. The most noticeable can always
easily be identified with specific individuals, whose exit often portents the
decline or death of their organizations.
• There have been scandals in some well-known civil society organizations,

especially around misuse of donor funds, abuse of workers’ rights and
sexual misconduct. Government and politicians who have felt pressured
by civil society activities often seize on these scandals to undermine the
entire civil society sector.
• There is a growing disconnect between traditional CSOs (mainly NGOs)

and their beneficiaries. People’s needs and priorities are changing at
dizzying speeds, yet many organizations are founded on the basis of
specific issues, themes and approaches (core mandates).
• From around 2013, the funding environment for CSOs has been tough,
often encouraging some CSOs to ‘follow the money’ and move away from
their core mandates.
• The growing role of new social movements which are able to connect
with and mobilize large numbers of people to take on public causes
without the need for an institutional basis.
46
THE ROLE OF THE OPPOSITION IN DEMOCRATIC SYSTEMS
In a democratic country, opposition counts. Democratic systems function with checks
and balances. They also rely on transparency, accountability and responsibility. In
parliamentary democracies, the legislative body is the reassurance of checks and
balances. Opposition parties are inseparable components of parliaments and they also
function according to the rules of the game, reassuring the application of those checks
and balances with their contribution to government policies and constructive
criticism. Democracies become complete with opposition.
Governments, meanwhile, have to pay respect to the presence of opposition. They
have to internalize and digest the fundamental principle of democracy that dictates
“winners do not and should not take all.” The result of the ballot box is only the
indication that the election has turned out in favor of a certain political view and the
policies that entail it are all embodied in the program of a political party. But there are
other views of other political parties and they also need to be taken into consideration.
Failure to accept this is severe violation of the functioning of a democratic system and
does not bring progress. It only brings backwardness.
The United Kingdom has been going through a critical period in its democratic
history. In 2015, there were parliamentary elections which ended with the victory of
the Conservative Party, albeit with slim majority. This result followed the famous
referendum in the U.K., which brought the decision of the British people on Brexit. All
these followed a change in the leadership of the Conservative Party and even in 10
Downing Street. The new Prime Minister Theresa May, with the hope of increasing
the strength of her party in the British Parliament, called for early elections. The result,
however, contrary to expectations, was a hung parliament.

47
Theresa May’s coalition government is certainly more vulnerable than her previous
one with the slim majority. But democracy in the United Kingdom is stronger. Today,
Theresa May will make a speech in order to set out the agenda and the road map in
front of her country. According to the extracts from her speech advanced to the press,
the British prime minister is expected to make a call to the opposition parties “to
contribute not just criticize.”
It is true that the United Kingdom is facing multiple challenges. On the one hand,
Brexit negotiations with the EU will start and continue under the responsibility of
May’s government. On the other hand, the implications of the Democratic Unionist
Party’s (DUP) support for the Tories in Westminster will inevitably affect the balance
that has prevailed in Belfast between the DUP and Sinn Fein since the Good Friday
Agreement. May, therefore, will have to brave not only foreign policy challenges but
domestic ones as well.
But these circumstances do not deter her adherence to democratic principles. She is
expected to ask the opposition to come forward with their own views and ideas about
how those challenges the country faces can be tackled. She is believed to have said the
following: “We may not agree on everything, but ideas can be clarified and improved
and a better way forward can be found.”
Turkey is also facing a lot of challenges. On the one hand, negotiations to find a
resolution to the Cyprus problem have finally come to an end without any meaningful
prospect of resuming. Turkey believes the U.N.’s goodwill mission parameters no
longer constitute a promising framework. Obviously, Turkey will now begin to look
for alternative policies.
On the other hand, Turkey’s relations with the EU are also in limbo. The European
48
Parliament recently advised the European Council to suspend accession negotiations
with Turkey. Even if not suspended, the negotiations will stall.
In Syria, Turkey is preparing for a new offensive. It is apparent this offensive does not
comply with the overall policy of the fight against ISIL terrorism, but against Turkey’s
self-declared terrorist opponents.
Turkey needs to discuss the challenges it faces with all the components of its
democratic system. Opposition parties are those components. The government and
the opposition may not agree on everything, but ideas can be clarified and improved
to find a better way forward. That is what democracy is all about.
ROLE OF OPPOSITION PARTIES IN AFRICA
Jean Jacques Rousseau (1912-78), perhaps one of the most studied and well known
political philosophers of the 18th century. Rousseau is credited to have influenced the
French Revolution and more notably the development of modern political,
sociological and educational thought. `Common will`; he argued- that human beings
are able to function with one common agenda shared amongst the people and their
ruling class. Although he did less in explaining how this will be discovered and
decided, he influenced a small niche of rulers to now fully determine the common will
of all people-totalitarianism. This particular thinking by Rousseau influenced fully
fledged totalitarianism regimes where deviations from the imposed mandatory
`common good` – outlined by the ruling class- were not tolerated. This ideology
influenced to some extent, thoughts around a more liberal concept of governing.
Democracy stands opposed to the idea of common will by all citizens in a state.
Modern mass societies are characterised by a variety of interests, world views and
49
beliefs; as such, no single government or political organisation can embody the
interests of all society. Governance in the 21st century yearns for diverse political
parties thriving towards common principles of freedom, justice and solidarity, for
different causes and different groupings of society. It is now harder for homogeneity
in any system of governance. A modern re-shared principle of term limits for
presidents’ stems from the premise that societies evolve, interests shift and change is
inevitable.
Constitutions allow; through a majority vote- for the winning the party, and
specifically its elected leader to be president or prime minister. Presidents, in most
African countries are only allowed to serve two terms. Terms give an opportunity for
leadership transition within the party and also for the country. It is now a logical
conclusion amongst political pundits; that the world is changing faster and governing
has to evolve in a similar fashion.
Political Parties and Governance
Political parties are social organisations with a representative function, they embody
particular interests, aggregate and communicate them to political and government
institutions. Political parties epitomize the fighting spirit; a readiness for political
action and confrontation. It is the only avenue to institutionally organize around
different views of society. In modern society, political parties in opposition have a
crucial function in the state and future of governance in any particular nation.
The role of opposition is crucial to democracy and speaks directly to Africa`s future.
Opposition plays varying roles in parliament, on behalf of their constituency, within
policy, policy development and accounting for project implementation.
Some key roles of opposition include:
• To hold governments accountable- they serve as watchdogs ensuring
government functions within the confines of the law, exposing the likes of
50
corruption, nepotism, and the abuse of power. They pursue justice upon any
deviation from the law or constitution by government
• To serve as a credible alternative to the ruling government- this function is
crucial because competition is healthy in ensuring better service delivery and
preventing complacency by the sitting government.
• To promote and stimulate debates in parliament- often after elections a quiet
season descends, with the winning party and politicians resurfacing in the
build-up to the next election. Opposition is in a privileged position to call for
debate and media attention on key issues being debated in parliament. The
opposition can further push for a national conversation while enhancing a
culture of democratic discourse. It is opposition that can foster national debate
and strengthen policy.
• To be a training ground for future leaders- youth leagues groom young people
on the values and principles of the party and leadership. Shadow cabinets are
also a great platform for parties to teach members on ministerial and other
government positions.
Opposition Parties and Strengthening Democracy
The tendency of some African Presidents refusing to stick to the commonly acceptable
constitutional decree of two terms has been a major cause for concern in the continent.
Most constitutional states in African have two terms limits, with the exception of
Chad, Gambia, and Djibouti their constitutions don’t “espouse” term limits. The
constitution also allows for amendments based on the legislative assembly`s majority
vote. Ironically, ruling parties always have the majority vote in parliament because of
the majority representation, as such they always dominate motions in parliament.
Ruling parties rule through their majority in the legislative assembly-overwhelming
opposition in decision making.
51
In Rwanda, the opposition Democratic Green Party (DGP) has filed a lawsuit
demanding the Supreme Court block any attempt by parliament to change the
constitution, which would allow President Paul Kagame to run for a third term. The
success of this lawsuit will rely heavily on how independent the judiciary institutions
are. If Burundi’s` constitutional ruling is anything to reference, there is not much faith
in courts were government is run by a single dominant ruling party and one
individual.
Article 101 of Rwanda`s constitution states that; “…the President`s seven year term
can be renewed once and under no circumstances should a person hold the office of
President for more than two terms”. President Kagame has been accused by civil
society groups in Rwanda of stifling media and political freedoms. Despite numerous
opposition parties, they offer no significant challenge; the DGP is a rare voice of
criticism. Kagame was quoted saying ““I am open to going, I’m open to not going,
”hinting that he might run again for office- essentially an unconstitutional third term.
This is to the disappointment to many, especially those who admire his legacy on
constitutionalism and rule of law. President Kagame`s Rwanda Patriotic Front (RPF)
party has publicly said, they want him to run for a third term. 3.6 million People have
so far signed a petition urging parliament to change the constitution.
In Uganda, President Museveni is the one who appoints poll officials; opposition has
threatened to block any elections if there are no changes in the electoral systems. The
opposition; the Forum for Democratic Change (FDC), is demanding an independent
electoral commission – a new and accurate voter’s roll prior to any conversation about
conducting an election. Elections in Uganda have been marred by irregularities.
Elections in Uganda have been marred by irregularities. Museveni`s influence on poll
officials has helped him consolidate power. President Museveni has been in power for
over 25 years and seems to be aiming for another quarter century as he refuses to make
electoral changes.
52
In Burundi, the bid by President Nkurunzira to run for a third term sparked violent
protests in April 2015, followed by an attempted coup. At least 300 of Burundi’s civil
organisations started a campaign against President Pierre Nkurunziza running for a
third term. The international community and the AU have condemned the violence
and called on Burundi to respect the constitution. Against these diverse opposition
forces, Nkurunziza has declared that the parliamentary vote will take place on June
26 with the presidential election to be held on July 15.
The Function and Impact of Civil Societies and Civil Society Organizations
Civil societies can take on many forms and can change based on the communities
that they emerge from, making the term somewhat ambiguous. In one definition,
civil society can be the perspective of looking at societies as a community of people
sharing common interests and activities. Civil society includes the family and the
private sphere, separating itself from governments and the private sector of
business (add political parties).
Generally, civil societies manifest as non-governmental organizations (NGOs) as
well as other similar groups and institutions. These organizations are typically run
by people experiencing some sort of dissatisfaction with the status quo, who then
through the power of the collective civil society, advocate for the change they want.
Civil societies are often (not always) comprised of groups of people who have been
marginalized, oppressed or underrepresented. Civil societies can form anywhere
that people are experiencing these inequities, but they are especially common among
groups and nations who have a long history of economic and political instability. In
these situations, civil societies create a voice and a call-to-action for people without
autonomy and access. Civil societies are often less formal than they may sound.
53
While some civil societies do manifest as defined and structured organizations,
many are simply groups of people who share the same cause.
These civil societies often have no official or elected leaders and many may not have
political channels or representation to allow their actions to have a large impact. It is
important to consider this when looking at the roles and impacts of civil societies.
Regardless of their lack of direct political influence, civil societies have been some of
the main drivers of change and progress throughout history. This has become
especially prevalent with the emergence of social media which allows messages from
movements such as Black Lives Matter and the Zapatistas to reach the world. Due to
their lack of official leaders, these civil societies typically function based on shared
governance, allowing the people experiencing a problem to advocate for themselves
and their desired change. In Brazil, for example, there are over 200 organizations
working to advocate for the poor in São Paulo. These organizations are all
experiencing a change in leadership and representation as Brazil continues to grow
as an impetus for human rights and justice in South America. Many of these civil
society organizations are seeing the gap between the represented and their
representatives close, allowing people to advocate for themselves in a meaningful
way.
While it may appear that civil societies and civil society organizations can only
operate at a local level, there are hundreds of growing organizations around the
world that are working to advocate for people who share common inequities across
borders. Among these civil society organizations are NGOs, trade unions, faith-
based organizations, indigenous people’s movements, etc. all working outside of the
government to bring equity across borders, using globalization and the media to
their advantage. This network of organizations can be defined as the global civil
54
society which is rapidly expanding, following the same template as more localized
civil societies: a participatory democratic structure, representation for the
underrepresented, and upholding the universal values and experiences of
marginalized groups across borders.
55
DEMOCRACY AND THE MEDIA
The media, the press or both?
"The press" is used to describe both the people who gather and relay news
(reporters) and the news outlets (ways of distributing news) or media (or medium
for singular). At some point in history, "the press," referred exclusively to reporters
for paper-based news media, i.e. print media; because their news were produced
56
using printing presses. It also referred to that news medium itself. The term “the
press” eventually started being used to but used for reporters representing any news
media as well as for the media.
Why is the Media referred to as the Fourth Estate?
The term “fourth estate” is often attributed to British politician Edmund Burke.
Thomas Carlyle, in Heroes and Hero-Worship in History (1899), writes:
“Burke said that there were three Estates in Parliament, but in the Reporters' Gallery
yonder, there sat a fourth Estate more important far than them all”.
In England, the three estates preceding the fourth estate were the king, the clergy
and the commoners; together they were the representation of the ordered English
society.
There are other attributions to other people like Lord Brougham in 1823 and the
English essayist William Hazlitt.
The term fourth estate is often used to place the press alongside the three branches of
government: legislative, executive and judicial, these together being the pillars of a
democracy. The fourth estate also refers to the watchdog role of the press, one that is
important to a functioning democracy.
57
Since the 17th century, the media has been recognized as the Fourth Estate of
democracy and a forum for public discussion and debate. Today, Media is respected
as watchdog, and a guardian of the public interest. Media organizations are
generally assumed to play an important role in democracies. Media organizations
are mostly private businesses but referred to as “private enterprise for public good”.
The power of the media is used as an instrument to bridge between the governors
and the governed.
Notice that the famous “First amendment” to the American constitution was to
“free” the media/press. This freedom however carries with it a responsibility to be
the people's watchdog.
To underscore the universal importance of the media, notice some of the
international conventions that expressly support freedom of the media:
1. The Universal Declaration of Human Rights
2. The African Charter on Human and Peoples' Rights
3. The International Covenant on Civil and Political Rights
4. The International Covenant on Economic, Social and Cultural Rights
5. The Charter of Paris for a New Europe
6. The Budapest Summit Declaration: Towards a Genuine Partnership in a New
Europe
7. The European Convention on Human Rights
8. The American Declaration of the Rights and Duties of Man
58
9. The American Convention on Human Rights
The nexus between democracy and media
Democracy in general terms is understood to be a form of government which is subject
to popular sovereignty; the peoples’ sovereignty. In a functional democracy, citizens
need to make responsible, well informed, free choices rather than acting out of
ignorance, misinformation and/or coercion. Access to information is therefore
essential, and so is freedom to read and write, freedom to formulate, hold and share
ideas, as well as expose and reveal the truth especially on public affairs. Information
serves a checking function by ensuring that those entrusted with public authority
over the rest of the population uphold their oaths of office and maintain the trust of
those in whose name they occupy public office. In some cases, an antagonistic
relationship between media and government represents a vital and healthy element
of fully functioning democracies. In post-conflict or ethnically homogenous societies
such a conflictual, tension-ridden relationship may not be appropriate, but the role of
the press to disseminate information as a way of mediating between the state and all
facets of civil society remains critical.
Democracy is nurtured through competition of ideas on how best to manage public
affairs. It is also nurtured through citizen or public participation. The participation
of citizens or the public in the making of decisions that affect them is a key pillar of a
functional democracy. Effective public participation and comparing competing ideas
are not possible without people getting informed and sharing information about
various issues. This is where the media becomes a critical actor in democracy.
59
The media plays the role of watchdog. Media can promote government transparency,
accountability, and public scrutiny of decision-makers in power, and by highlighting
policy failures, maladministration by public officials, corruption in the judiciary, and
scandals in the corporate sector, media acts as a mirror.
The media acts as agency for formulation and organization of public opinion. The
media is a public forum that acts as an agenda-setter, providing information about
urgent social problems, mediating between citizens and the state, facilitating debate
about the major issues of the day, and informing the public about their leaders. A good
democracy is one that is legitimized by the people. For the people to effectively play
this role of participating in and legitimizing their democracy, they must be well
informed and have the power to counter act state power, political power, economic
power, religious power and other sources of power that greatly influence the
management of public affairs.
When channels of communication reflect social and cultural pluralism within society,
in a fair and impartial balance, then multiple interests and voices are heard in public
debates and have a chance to influence how society is ordered and the management
of public affairs.
New Media / Social media
New media or more recently, social media have radically altered the way government
institutions operate, political communication, the manner in which elections are
contested, and the way citizens engage in public affairs.
60
Social media are forms of communication that facilitate the production, dissemination,
and exchange of content on platforms and within networks that accommodate instant
interaction and collaboration. They have wide-ranging implications for democratic
governance and political practices. They have radically altered the ways in which
government institutions operate and political leaders communicate. They have
transformed the political media system and redefined the role of journalists. They
have redefined the way elections are contested, and how citizens engage in politics
and other public affairs. New media can relay information directly to individuals
without the intervention of editorial or institutional gatekeepers. Thus, they have
introduced an increased level of instability and unpredictability into the political
communication process. The diversity of content disseminated by new media has
created opportunities such as the ability for more voices to be heard. *Read about
Barrack Obama’s groundbreaking digital campaign strategy in the 2008 presidential
election in the USA.
Ordinary people use social media to join forces with institutional media to perform
the watchdog role, thus subjecting public officials to greater scrutiny. Issues and
events that might be outside the purview of mainstream journalists can be brought
into prominence by ordinary citizens, hence the birth of citizen journalism. Members
of the public often record and post videos that go viral and greatly influence the course
of events.
Social media also come with the label “post-truth media”: ambiguous statements, not-
attribution, unverified stories, emotional appeals instead of objective facts, clutter that
often crowds out relevant news about weighty policy issues, sensationalized trivia-
bites, misinformation, baseless rumours, fake news etc. *Read about Jubilee party
61
(Kenya) 2013 social media campaign strategy and Donald Trump’s use of social
media.
Strengthening the role of the media in democracy
For the media to have a meaningful role in democracy, the ultimate goal of developing
the media should be to develop a range of diverse mediums and voices that are
credible, and to create and strengthen a sector that promotes such outlets. Credible
outlets enable citizens to have access to information that they need to make informed
decisions and to participate in society. Noncredible outlets promote highly partisan
and private interests.
Other ways include:
• Cultivating alternative media, so that multiple voices and opinions will be
heard
• Mobilizing popular participation in the use of new/social media
• Supporting objective news and information programs, so that people can make
informed decisions and counter controlled media. The media can be controlled
by the state, business interests, religious interests, race interests, cultural
interests, etc – make deliberate choices of what you read, watch, listen to, respond
to…..
• Promoting investment, equity and debt financing, leasing, and other
mechanisms to capitalize the media industry
• Developing media management capacity
62
• Participating in the development of the legal and administrative infrastructure
for an independent media sector
• Fostering the development of a mature information culture
• Promoting industry-wide trade organizations and professional associations
• Overcoming government domination of information – freedom of information
laws…..
• Raising the level of journalistic professionalism
Why media regulation?
There is a contradiction intrinsic to the notion of regulating what is supposed to be
free means of expression and information in a modern society. Regulation by its very
nature sets limits to freedom, which is the most basic principle of democratic societies.
At the very least, this means that there have to be clear and convincing reasons for
regulation, and although we can give general justifications for regulation that help to
reconcile it with principles of freedom and democracy, we cannot escape from this
underlying tension.
There is no single or simple answer to the question on why the media should be
regulated. Prima facie cases for regulation often conceal other purposes (especially
the interests of the state).
Six general reasons for media regulation can be proposed:
63
• The management of what is arguably the key economic resource in the
emerging `information society', with a very high dependence on all forms of
communication. – every other facet of society depends on communication.
• The protection of public order and support for instruments of government
and justice.
• The protection of individual and sectional/group rights and interests that
might be harmed by unrestricted use of public means of communication.
• The promotion of the efficiency and development of the communication
system, by way of technical standardization, innovation, connectivity and
universal provision.
• The promotion of access, freedom to communicate, diversity and universal
provision as well as securing communicative and cultural ends chosen by the
people for themselves.
• Maintaining conditions for effective operation of free markets in media
services, especially competition and access, protection of consumers,
stimulating innovation and expansion.
64

MKU - Law and Democracy Notes

Uploaded by

Copyright:

Available Formats

MKU - Law and Democracy Notes

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

MKU - Law and Democracy Notes

Uploaded by

Copyright:

Available Formats

BLW2104 Law & Democracy notes

LAW AND DEMOCRACY NOTES

LAW, DEMOCRACY AND DEVELOPMENT

Democracy is a form of government in which sovereign power resides in and is

exercised by the body of free citizens1. It provides for equal participation of

citizens in decision making. For example consultation of the citizens before

implementation of a new law. It seeks to inquire of the electoral process and

pluralism, civil liberties, the functioning of a government, political participation

and political culture of a particular country.

Law is a body of rules that govern a country. It can either be codified or

Development is a process and not a once off event since it is considered as a

progression from what existed previously. Historically it was defined in terms of

living and education.

Modern definition of development has been modified. It is defined as expansion

of freedom that a person enjoys.2

to which people aspires. Thus where economic advancement is a piece of

Law and development emerged as a discipline in the 1960s as an extension of

law to carry rapid changes in the society.

American concept of law and development was based on economic growth.

about sustainable development.

Democracy embodies four basic principles; freedom, justice, free participation of

a fundamental source of common value that can be described as the common

different forms and will be realized means, in different societies.

between the disciplines while the other disagrees.

assumption that democracy and development are intertwined.

Here, the argument takes two different routes. Which are;

i. Development first, then democracy

This basically means that development facilitates or brings about democracy.

more accountability from their governments, thus achieving better

• In other ways, an educated and growing middle class is more likely to

and become more democratic.5

• Seymour Lipset , an American sociologist,argues that, through a process of

'Modernization', countries may develop into successful democracies, after a

general process, of which democratisation is the final stage. Modernization

consists of a gradual improvement of social structures and development,

through authoritarianism, and a country will be a successful as a democracy

only after they reach a threshold of economic development. Even if the

emergence of democracy is independent of the level of development, it is

well-to-do a nation, the greater the chances that it will sustain

democracy".Lipset noted that, wealthier societies tend to have higher levels

of human capital, more advanced and varied means of communications,

larger middle classes, and greater social equality. Democracy is therefore,

of democratic institutions are facilitated by development.6

ii. Democracy first, then development

This assumption argues that democracy should be the precondition for

development and promoting democracy is the approach strategically to reach

assumption is particularly true in most western countries where stability

and economic development has been strengthened. As such there has

been a deliberate move by most of African countries to follow the same

route to achieve development through the process of democratisation of

development since the attainment of independence is also a key indicator

that some degree of democracy is critical to promote development. With

the attainment of independence, a number of African countries have

and replacing a government through free and fair elections.7

• Promotion of democratic values such as freedom of communication,

transparency at every level and judicial reforms is essential to modern

development. Impediment’s such as economic inequality and excessive

centralization can be controlled fully functioning judiciary.

• Rule of law which is a component of democracy is a necessary precursor