Somaliland reinstated its independence in 1991 following the collapse of the military regime that had ruled Somalia for two decades. The Somali National Movement which took over the northern regions facilitated a broad-based conference in Burco attended by traditional leaders of all six regions of Somaliland who unanimously agreed to the dissolution of the union with Somalia and proclaimed independence on 18 May 1991.

The conference also established Somaliland’s first government, based on the SNM’s organisational structure, with its Chairman, Abdirahman Ahmed Ali, becoming Somaliland’s first executive president and the SNM Central Committee functioning as the country’s first parliament. It had a two-year mandate, and was tasked with accommodating non-Isaaq clans into the government, developing a constitution and preparing Somaliland for elections.

The new country continued to suffer violence and weak institutions, with elders stepping in to prevent degeneration into protracted civil war. In 1992, the first of two major clan conferences, held in Sheekh, created the national Guurti, or council of elders, bringing together elders from all the clans responsible for controlling clan militia and preventing conflict, as well as defending the country.

The 1993 Borama Conference 

The second major clan conference assembled in Borama, a city in the West of Somaliland, for nearly five months in 1993. It eventually produced a National Charter which established government structures and the separation of powers for a transitional two-year period, pending the adoption of a new constitution. The charter included the creation of a bicameral parliament, with the Guurti formally institutionalised as the upper house, and the lower house made up of elected representatives. A clan-based electoral college elected Mohamed Haji Ibrahim Egal president for two years as well as members of the guurti and the lower house.

The political system established in 1993 became known as Shirbeelad, meaning “clan” or “community,” integrating indigenous forms of institutional arrangements with modern institutions of government. It was only meant to be in place for three years but lasted a decade.

Following the transition of power from the SNM leader Abdirahman to Egal, the new administration now had two years to prepare an interim constitution for approval by parliament and the upper house. The process proved to be time-consuming, necessitating extensions of the charter’s deadline.

Ultimately, two drafts were produced. In 1994, the government hired a Sudanese lawyer to write the constitution while the House of Representatives appointed an ad-hoc committee advised by lawyers, traditional leaders, religious figures and politicians which, suspecting the government’s draft would give excessive power to the executive branch, drafted an alternate version. Following deliberations to reconcile the two documents, a unified draft was adopted as the interim constitution in 1996, with a three-year implementation period leading up to a referendum. A final, revised constitution was approved by both houses on 30 April 2000 and overwhelmingly endorsed by 97 per cent of voters in a public referendum held on 31 May 2001.

The local government and parliamentary electoral system

The constitutional referendum paved the way for popular elections. The first set of municipal and national elections held between 2002 and 2005 were conducted by a novice electoral commission with almost no international technical and financial support and without many of the accoutrements of modern elections such as censuses, comprehensive voter registers and voter education. Though not without problems, disagreements and accusations of malpractice, the elections were considered largely credible, free and fair, and their outcomes were widely accepted.

The constitution defined a new political system for Somaliland — a democratic, multi-party system, in which the head of state and members of parliament and district councils would be elected directly by the public by secret ballot, instead of through electoral colleges of elders.

Within two years, a body of laws was passed to facilitate formation of political parties, define citizenship, delineate the structure of local government, and lay down electoral procedures. The laws provided for a seven-member Registration Committee which administered the registration process for political parties as well as the process of qualifying three to become national parties as stipulated by the constitution. The constitutional limitation to the number of national parties was meant to prevent the political system from fracturing along clan or regional lines.

The first local government elections were held In December 2002. Voter registration was only carried out in urban areas, with around 330,000 people being registered. However, on polling day people were allowed to vote irrespective of whether they had a registration card or not (and were then marked with indelible ink).

Six registered political formations qualified to compete in the polls, with the top three in terms of number of seats won recognised as national parties which could field candidates in national elections, including for the position of president. The successful parties were Egal’s UDUB, Kulmiye and UCID. European Union observers declared the elections — during which 440,000 votes were cast — to be “of as high a quality as is realistic within the prevailing environment”.

The presidential polls

In 2003, with the presidential elections fast approaching, President Dahir Riyale Kahin, who had succeeded Egal after the latter’s death in May 2002, met with the three national parties and agreed on the composition of the seven-member National Election Commission. The president and the Guurti would each nominate two commissioners while the political parties would pick one each.

The elections were held on 14 April 2003, pitting President Riyale of UDUB, Ahmed Mohamed Silanyo of Kulmiye and Feisal Ali Hussein of UCID. The result was a wafer-thin victory for the incumbent, who won by just 80 votes out of the 500,000 cast. The Kulmiye Party immediately asked for a recount at some of the polling stations but this did not change the original tally. The result was eventually challenged in the Supreme Court which endorsed Kahin’s victory. Silanyo conceded and Kahin was sworn in on 16 May.

Many who were uncertain and wary of a disputed election and its consequences, expressed gratitude to the Kulmiye leader, Silanyo, for his incredible decision. A seasoned politician, Silanyo had weighed the situation and seen the turmoil that lay ahead. He sacrificed his own political and party ambitions in order to save the fragile democracy. Given that he had served the longest in the SNM leadership and was from the dominant Isaaq clan, Silanyo’s concession removed the latent suspicion that the powerful Isaak would establish hegemony over the other clans.

2005 legislative elections

On 29 September 2005, Somaliland held its first, and so far only, multiparty contest for the 82 parliamentary seats. The 82 members of the house were elected on the basis of proportional representation. UDUB won with 33 seats, Kulmiye garnered 28 and UCID captured 21.

Smarting from their 2003 presidential loss. Kulmiye and UCID blocked or rejected any motion from the executive branch. It was the beginning of political tensions in Somaliland, which crippled the cohesive nature of Somaliland democracy. The parliament elected in 2005 is still glued to their seats because the opposition political majority in the house has continued to filibuster and shoot down any progressive motion pertaining to elections.

He sacrificed his own political and party ambitions in order to save the fragile democracy.

It was only after the 2005 elections that political stakeholders agreed to establish the first voter registry. A law was enacted in 2007 to govern the process and, following some amendments, voter registration proceeded in 2008. It was, however, briefly suspended following suicide bombings in Hargeisa on 29 October 2008, and was also marred by widespread fraud and mismanagement. Nearly 1.3 million names were collected throughout the country, each of which was meant to be validated through a biometric fingerprint system. According to Michael Walls —  Co-Coordinator of the international election observation mission for the Somaliland presidential election in 2009 and lecturer at University College London — registration centres permitted more than half of those registering to do so without taking a readable fingerprint and “large numbers were permitted to hold photos in front of the camera rather than presenting themselves for the purpose”.

The 26 June 2010 presidential election 

With the term of President Kahin expiring in May 2008, the voter registration exercise was meant to facilitate municipal and presidential elections. However, the polls were repeatedly delayed because of infighting within the higher political circles, specifically between the parliament, opposition leaders and the president, necessitating two extensions of his term. As provided for in the constitution, the Guurti approved the president’s request for an extension of his term and that of parliament to March 2009 due to the instability in the eastern regions. The second extension occurred at the request of the NEC which needed another year to prepare for the polls due to the prevailing political situation, economic problems and technical issues.

The elections were finally held two years late — on 26 June 201 — and were again contested by Kulmiye, UDUB and UCID. Nearly 540,000 voters cast their ballots across the country on election day, electing Kulmiye leader Silanyo, with 50 per cent the vote. It was now Kahin’s turn to gracefully concede and Silanyo was sworn in on July 26 in a ceremony attended by delegations from across East Africa, including officials from Kenya, Djibouti and Ethiopia.

Local government elections in 2012

On 28 November 2012, Somaliland held its second round of local council elections, the results of which, like the first a decade earlier, would  determine the three national political parties that could contest national elections for the next decade. Though largely free and relatively peaceful, the elections were marred by multiple voting exacerbated by the lack of a voter register – the previous one having been nullified by parliament after it defied attempts to clean up the voter roll — and the ease with which supposedly indelible ink was removed.

With two of the three national parties in trouble — many of UCID’s supporters and MPs had transferred their allegiance to Wadani, a new political organisation, while UDUB, the party of the two previous presidents, was widely thought to be dissolving — there was space for new political formations. Five new formations contested the 2012 elections alongside Kulmiye and UCID. Despite some dispute and violence in the immediate aftermath, the results were accepted and Kulmiye, UCID and Wadani emerged as the national political parties.

Presidential elections — 2017

On 13 November 2017, Somaliland conducted its third presidential election, its sixth popular national voting exercise in 15 years. The election — which had originally been scheduled for June 2015 but was delayed, initially at the request of the NEC and then due to the drought ravaging the country in January 2017 — saw three candidates competing to replace the incumbent Silanyo, who had decided to step down: Wadani’s Abdirahman Mohamed Abdullahi Irro, UCID’s Faisal Ali Warabe, and Kulmiye’s Muse Bihi Abdi. The polls, which were preceded by the rollout of a new biometric voter registration system, experienced considerable delay caused by technical and political challenges, and drought. Compared to over a million in 2010, 873,000 voters were registered, although only just over 700,000 actually collected the voter cards that would allow them to vote.

Once again, peaceful voting was followed by delays in the tabulation and collation of results, and allegations of malpractice. Violence led to some fatalities and the results were disputed, especially by Wadani which demanded a recount but eventually relented. On 21 November, Abdi was declared the winner with 55 per cent of the vote and became the country’s fifth president, cementing a tradition of peaceful handovers of power that is relatively rare in the region.

On November 7th 2020, as the country prepared for the long-delayed parliamentary and municipal elections that are now to be held at the end of May 2021, the National Electoral Commission (NEC) released the timetable for the voter registration exercise that was scheduled to start on November 29th 2020 and end on January 13th 2021. The voter registration exercise targeted those who had missed the 2016 voter registration exercise as well as those who had attained the voting age. The exercise would also be used to clean up the 2016 register. The NEC also gave voters who needed to change voting locations the opportunity to do so and to also replace lost voter cards.

Successes and challenges in the democratisation process

The Somaliland constitution contains fundamental principles strengthening citizens’ rights and freedoms, and emphasises the transition from clan-based politics to a multi-party democracy. However, political parties have not transformed themselves in terms of structure, vision and strategy. Rather than becoming vehicles for transmitting the noble constitutional principles of a multi-party system, in practice they derailed it and became clan-oriented in order to secure more votes. For example, they deferred to clan leaders in the selection of candidates, favouring those from the larger, vote-rich clans, ignoring the smaller ones, and generating conflicts and divisions between them.

The heteromorphic nature of Somali politics and democracy 

Somali society is considered ethnically homogenous, monolingual and singularly Islamic. However, it is characterised by an entrenched paternal clan system. These clans are communities of relationships that share common ancestral origins and are interrelated. Clan relations extend over clan territories marked by fluid borders. Upon birth, a Somali is given one name — their first name. The second name is their father’s, the third their paternal grandfather’s and so on and so forth until you arrive at the sub-clan name. Knowing one’s genealogy several generations back is of paramount importance in Somali culture; it is a primary identifier for the individual and the clan. This genealogical identity has been used successfully in Somaliland to curb crime, insecurity and terrorism. It is the most successful approach to community policing.

The clan therefore is at the core of politics in Somali culture. Clan groups became the basis of the political parties for the parliamentarian election in 1964, which meant that from the outset Somalia political parties had a strong clan consciousness. The political system adopted in the 1960s was a clan-based parliamentary democratic system that inevitably led to the politicisation of the clan and the death of ideological politics and democracy.

Clanism, nepotism and patronage

This is the omnipresent danger to all Somali political and democratic initiatives. In such a clan-based political system, the government must have robust and powerful institutions. The governance culture must also emphasise meritocracy over clanism, nepotism and patronage. Governance must be inclusive economically, socially and in terms of development and must be seen to be meritocratic in the filling of public office. The tenets of democracy are optimistic; they envisage a rational human society. But humans are often irrational and their decisions, beliefs and bias is born out of their own selfish interests and desires.

Democracy calls for one man, one vote, and victory to the majority. This is ideal in a democracy that practices ideological politics. But where ideology is replaced by clanism, the majority will always be the most populous clan or the most populous clan alliance. This denies a country visionary leadership because political contests are not based on ideologies, development agenda or unity.

Further, elections in Somaliland have been characterised by unnecessary postponements when politicians are uncomfortable either with the electoral laws or with the appointment of NEC members. For example, the 2008 presidential elections were postponed for two years due to the opposition severely pressuring the incumbent president on controversial issues related to the choice of NEC members.

The political system adopted in the 1960s was a clan-based parliamentary democratic system that inevitably led to the politicisation of the clan and the death of ideological politics.

More recently, between 2017 and 2019, opposition parties UCID and Wadani were at loggerheads with the president over the nomination of the National Electoral Commission. The opposition was challenging the president’s prerogative to increase the number of the NEC commissioners from seven to nine. That dispute led to the postponement of the elections to 2021.

The political parties have truly shackled many opportunities to develop true democracy in Somaliland. The parliamentarians elected in 2005 are still in office 16 years later due to the cycle of postponements driven by political parties. There is a light at the end of the tunnel, however, as new political parties are rising unburdened by the tedious process of using local government elections to select the parties to compete in national elections. The four-year delay in holding the local government elections now means they will be held on the same day as the parliamentary polls.

Due to this, on April 4th 2021 the Somaliland parliament drew up new criteria for identifying national political parties which will now be selected through a separate electoral process in all the six regions. The political organisations that obtain the highest cumulative votes from all six regions will qualify for the three spots, allowing them to run for national elections in future. This elective process for new political parties will most likely be carried out before the expiration of the 10-year period for the current three political parties in November 2022.

Significance of the May 2021 elections 

With 1.3 million registered voters (approximately 30 per cent of the population of Somaliland) expected to cast their votes — with 246 candidates gunning for 82 parliamentary seats and 966 vying for 249 district municipality seats in the six regions — these elections will be the most competitive yet. The outgoing parliamentarians were elected in 2005 and sat for 16 years, a decade longer than their mandated term limit. Similarly, the outgoing local government council was elected in 2012. The citizens of Somaliland are determined to bulldoze these unethical politicians. As stated earlier, the dysfunctional political parties are responsible for the postponements, while incumbent presidents have often played the game to gain more time on the throne.

The government will provide at least 80 per cent of the NEC’s budget, with international partners covering the rest. According to the NEC, it will be using biometric voter registration and a sophisticated voting system which university students have trained operate at the polling stations to ensure smooth operations with minimum technical errors and disruptions.

May 31 is of historic significance for Somaliland as it marks the 30th anniversary of Somaliland’s independence and the 20th anniversary of Somaliland’s multiparty democracy. It was on May 31st 2001 that Somaliland voters approved the constitution through a referendum. Somaliland youth born after 1991 have never had a chance to elect their parliamentary representatives.

Which way forward?

If Somaliland’s democratic transition is to last there must be strict regulation of the behaviour of political parties. Moreover, the structure, composition, competence and size of the National Election Commission must be re-evaluated and the best way to do this is to make its membership independent of political parties. The inclusion of political interests in an institution that is supposed to be a neutral adjudicator only destabilises and weakens the NEC with serious repercussions as the constant bickering brought on by political entities diminishes the trust that the electorate has in the organ. Elections are an emotive exercise in Somaliland especially since political compromise and consensus in Somaliland politics is almost absent. Further, the habitual postponing of the elections by the NEC, allowing elected officials to continue to hold seats beyond the end of their terms without the mandate of the electorate is a direct result of the inclusion of political stakeholders within the NEC.

May 31 is of historic significance for Somaliland as it marks the 30th anniversary of Somaliland’s independence and the 20th anniversary of Somaliland’s multiparty democracy.

The elders’ house is aged and incompetent; many of the key members have either died or are crippled. The Guurti is a powerful legal institution but it has not been re-elected since 1993; dead elders are replaced by their next-of-kin regardless of merit. The president must urgently form an ad-hoc commission to study the criteria required to elect the members of the upper house and laws to eradicate the postponement of elections and the extension of political mandates must be put in place.

And finally, mechanisms to engage citizens’ aspirations, to build trust and confidence in the democratisation process, seminars, lectures, debates and discussions may play a vital role, while the involvement of external experts/institutions will be necessary in providing training in democratisation, specifically for the upcoming parliament and the emerging political parties.

If Marx had lived during our time, he would edit his timeless phrase about religion.  He would write, as religion is the opium of the masses, democracy is the crack cocaine of the elite.  Especially the African elite, we are high on it.  As it quietly destroys our internal organs, we strive for more and of better quality.  The vendors are merchandisers all the most aggressive and most persuasive. Their adverts have refused to add the cautionary label, “democracy smoking will kill you.”

These vendors are not only ‘creaming away’ all the profits from their product, but also eating the carcasses of their victims.  By the time the African intelligentsia overcome their addiction, they would understand that the enemy to their governance-development question has never been themselves, their bad education or bad leadership but rather the stuff they have been smoking as medication – democracy itself, its crusaders and merchandisers.  Democracy is not just a language of [colonial] exploitation, it is the practice of exploitation itself.  Problematically mixed with civil liberties, democracy has inextricably, irretrievably tied the African elite to exploitative capitalism, while at the same time, exciting, distracting and completely blinding them from real concerns, or even revolution.

Just the same way colonial exploitation thrived on divide and conquer, democracy does the same, but more tactfully, more elusively.  Democracy thrives on a double-layered divide and conquer (a) it disconnects the elite from ordinary folks with the elite not only developing new tastes and cultures —not simply consumptive ones, but lifestyles and practices—but they also become obsessed with their own preservation. On the other hand, the lifestyles, struggles and pains of rural folks are exorcised as slight inconveniences, painful sores and humanitarian— not structural—challenges needing benevolent intervention. And (b) the elite are then split into often terribly polarised “political parties” and other smaller camps, where sustaining or grabbing power becomes the single most important preoccupation.  The task of the African intellectual therefore is to understand the colonial exploitative nature of democracy (divide and rule, shameless vulgarity of free markets, disruptive endless ‘human rights’ quibbles, foreign aid, and loans, media bombardment); and the myriad lofty seemingly good-intentioned crusaders.

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Let’s start with some basic seemingly obsolete questions: Do former colonial masters still want to exploit the resources of formerly colonised places – specifically Africa? By exploit I mean, to steal or benefit at the expense of the Natives of those countries. Stated differently, are Africans convinced that their former colonisers are happy to see them thrive, and the endless streams of aid and loans, and the gospel of democracy are all meant for their betterment?  How about new powers such as America and China? Are they benevolent friends helping in times of need or honest business partners?  Has this urge, ambition and plotting to pillage ended? Again, this is not about countries in West Africa where the colonial powers, specifically, France actually didn’t leave after independence but rather retained its grip on their former colonies through especially banking. I am concerned about countries where colonial masters actually “left” upon independence.

The response to these questions is an easy YES; all the world’s new and old powers are interested in stealing from weaker countries especially in Africa. A sombre cry by novelist Ama Ato Aidoo on 500 years of European exploitation captures the painful state of affairs, and a recent meticulous study by Angus Elsby on coffee and cotton captures this ongoing pillage. But the question is this: if Africans know that there are thieves all around them plotting, scheming, and conniving to steal their resources, why are they not resisting the way their predecessors resisted colonialism? Why do Africans feel and behave so weak, incapable, and conditioned to playball as their countries are looted by the same powers their anti-colonial mothers and fathers resisted? Why don’t we have a second wave of anti-exploitation struggle on the continent resisting the new manifestation of colonial-like exploitation?

If Marx had lived during our time, he would edit his timeless phrase about religion.  He would write, as religion is the opium of the masses, democracy is the crack cocaine of the elite

Let me make one caveat here: this has nothing to do with the so-called legacy of colonialism – see Mahmood Mamdani and co. – because that would mean seeking to bring an end to a way of doing things, or simple removal of the structures that were left behind after independence. Mine is not a quest to decolonise but rather to see foreign exploitation in all its new forms. Perhaps my first proposition is that seeing and discussing western exploitation of the African continent through the language of colonialism, and its blighted offshoots, neo-colonialism, decolonisation, etc is not necessarily obsolete, but is actually distractive. It denies us the chance to appreciate the performatively non-colonial ways in which the continent is being looted. My core proposition is that we need to see democracy as the new absolute manifestation of exploitation.  There is urgent need to go behind it, expose its traps, and confront its beastly smiley face. Africa will need to proudly pursue a de-democratisation struggle—which is certainly much more difficult than the anti-colonial struggle.

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Let’s return to my central question: why are Africans not resisting this new form of exploitation – democracy? My answer to this question is threefold: (a) the new exploiters, couched in the slick but highly deceptive, confusingly omnibus understanding of democracy (to include free markets, free and fair elections, freedoms and human rights, free speech, choice, people, representation, equality, justice) have deftly disguised the manifest exploitation of democracy. The face of democracy appears attractive and sophisticated as it displays and performs ironically non-existent Mzungu practices on governance in Europe and North America.

As Ali Mazrui, 1997 succinctly demonstrated, the humanitarian values (freedom of speech, women emancipation and empowerment, freedom of choice, religion, etc.) believed to the guaranteed as so terribly inexistent even in the so-called democracies of the west. The denial of these values, Mazrui noted, only takes a different more subtle form. One doesn’t have to look too far to see how “democratic” America or the United Kingdom treats its black folks, workers, women, drops bombs on other nations for sport, continue to openly loot abroad, etcetera.. The beautiful decorated façade of regular elections, freedom of speech and religion mask a rather dangerous strain of thuggery and exploitation.

There is an army of pleasant looking, beautiful, ever-smiling, sweet-talking and cash-dangling handlers and brokers pushing democracy with high-sounding and seemingly beautiful arguments about justice, rights, the people… etcetera claiming these are provided and guaranteed by democracy.  Who could be against that…? They subtly ask. These handlers – these new colonial administrators – do not call themselves Governors and Colonial Lords, but rather “regional coordinators,” “country directors,” “programme managers” and academics. They operate without the brutality, overt racism and insults that defined earlier exploiters. They are constantly “seeking partnerships,” not dominions. They claim to “respect” national sovereignty and independence and will seek to execute their duties in the confines of international law. They will never tell you the history of so-called international law, which explicitly does not recognise Africans as sovereigns but rather just as Africans (see Siba N’Zatioula Grovogui, 1996). In doing all this, they never lose sight on the estate. These new exploiter emissaries include charming fellows in the European Union, American and British embassies, the United Nations offices, World Bank and International Monetary Fund (IMF) and several experts of democracy based at British and American universities—studying Africa!  They run tantalisingly named units such as the Democracy Governance Facility (DGF) where they narcotize thousands of local elites into inertia, spending endless hours in offices writing proposals and forging accountabilities (see Makau Mutua, eds. 2009).

These strategies have quietly, methodically captured all local media houses, schools, and all other spaces of active learning to push the democracy agenda into curriculums. In the end, they produce democracy thinking clones – literally, producing democracy’s Uncle Toms. Ever wondered why war-torn countries such as Somalia, South Sudan, Central African Republic, Libya, etcetera have intellectuals and politicians on podiums chanting democracy amidst ruins and dead bodies—entering contracts for oil and other mineral resource explorations, signing off loans and debts? Yes, it is the good work of these handlers.

Oftentimes, these democracy “merchandisers” operate under the language of development assistance. They flood the NGO sector, and civil society. This is in spite of the copious amounts of scholarship that vividly demonstrate that aid does not work (see Andrew Rugasira, 2007; Juluis Gatune, 2010; Dambisa Moyo, 2010).  African countries surely do not need aid to stave off famine or prosper – no country ever did – but the givers will not listen. Even when asked to leave, they go away sour-graping like they loved the recipient country more than its leaders. But these new exploiters, wearing their false smiles have, through a series of lengthy and underhand methods—including manufacturing narratives of poverty, predictions of disease, fake annual indices on this and that—they actually force, squeeze, cajole, and harass an African country into receiving aid, but will never mention better terms of trade (see  Slavoj Zizek, 2009).  If they fail to push this through more technicalized forgeries and liberal concoctions, they’ll resort to outright violence.  Examples abound of both covert and overt uses of violence: Egypt, Libya, Afghanistan, Somalia, Iraq, Iran, Cuba, Venezuela, etcetera under the cover of civil liberties. In truth, these are fortune hunters – like their colonial predecessors who rode on the deceptive language of civilising the Natives, these are simply sophisticated thieves who  have managed to manufacture a common sense around their practice of theft as the best form of governance (elsewhere, see Pepe Escobar, 2009).

And finally, against such an environment of deftly disguised exploitation and aggressive brokers (c) the current breed of leaders – in the academia, media, and mainstream politics – have been extremely softened by urban life, and the perverse spread of bodily pleasures from Europe and North America. Softeners range from their beautiful wives (and, occasionally, husbands) and long streams of concubines, comfortable beds, to sweet foods, which they have not earned and are haunted by the fact that they do not deserve. Incredible amounts of money circulate among these fellows over and above the rent for their labour. It is a cartel.

All the world’s new and old powers are interested in stealing from weaker countries especially in Africa. A sombre cry by novelist Ama Ato Aidoo on 500 years of European exploitation captures the painful state of affairs, and a recent meticulous study by Angus Elsby on coffee and cotton captures this ongoing pillage

These comprador leaders and elites surviving off the crumbs of elite capital are condemned to perpetual praise and gratitude to their present oppressors – for enabling them access to these crumbs in the theft of their compatriots. Intellectually inferior, and without the backing of a traditional modernities  upon which their predecessors —the anti-colonial intelligentsia—were bedecked, our new leaders are barebones, thrown into modernities where they have no histories and are simply drowning. When Partha Chatterjee writes about ‘tradition’ presenting the anti-colonial intellectuals with ‘a liberal rationalist dilemma’, that is, in the words of Lidwien Kapteijns, the challenge to be modern and traditional at the same time, he actually recognises the base upon which the anti-colonial intelligentsia constantly made reference as they negotiated their entry into a colonial modernity in a postcolonial moment. Our new would-be liberationists have neither and are simply swimming with the tide.

Spending endless hours watching European football on SuperSport, and admiring lofty English on BBC and CNN, googling stuff, and busying themselves on the myriad social media platforms, they cannot imagine abandoning these pleasures for thoroughbred struggle, which could benefit the collective. It is simply enough and too much. With the majority of this elite imprisoned at their small desks in parliament, NGOs and Civil Society, they are seemingly content with the status quo since they can ably afford the bodily pleasures mentioned above (you’ll find them endlessly chanting: ‘Compatriots! Do not risk throwing the existing order up in air – who knows where we will land !’). They are obsessed with their pleasures and freedoms guaranteed by democracy as the actual wealth of the country is quietly scooped up by their NGOs and Civil Society funders.

Democracy as divide and rule: Lessons from Uganda

Ugandans are now familiar with constant images of mostly white folks from the European Union, and other western embassies driving to homes of leading opposition candidate after every election. Their agenda remains the most enigmatic. When it was Col. Kiiza Besigye, amidst the tension of a stolen election in 2016 —the Uganda  confirmed gross irregularities on two occasions but refused to nullify the election— EU folks would drive to his home in Kasangati for some conversations. We will never know exactly what they discussed but it wouldn’t matter anyway.  But they often had such a grand entry and exit from the dusty Kasangati road turning into Besigye’s home. From Kiiza Besigye’s home, they would then go and meet the incumbent, Yoweri Museveni. This Museveni meeting was never as prominently publicised.  Most recently, with Bobi Wine becoming the lead opposition candidate in the country, they have been driving to his home in Magere, and quite often to his party offices in Kamwokya. Again, they often make quite an entry. From meeting Bobi Wine, they then travelled a few kilometres to meet Museveni where he assured them that Uganda was not “their enemy” [sic] before posing for pictures.

There is no better manifestation, or blatant display of divide and conquer than seeing these democracy merchandisers strutting from one corner of Kampala to the other just like colonial lords patronising the lead politicians on either side of the rather superficial aisle. Their obvious but deftly disguised intention are threefold: (a) ensure that while these two groups remain diametrically opposed to each other, they do not disturb the peace creating a mess for business. Preach peace— there should be no disruptions to our looting! Because if they did, you will never know where it ends. (b) should either side emerge victorious, no alliances are lost, as all of them will consider you a friend. But more significantly, (c) once the cameras are gone, the EU uses opposition leaders as bargaining chips against which they force Museveni into tougher concessions. They constantly remind Museveni of their potential to support his adversary if he does not play ball. Indeed, if this were the 1970s, these fellows would actually sell guns to both sides, and then bring relief food supplies to war-displaced natives.

Democracy is not just a language of [colonial] exploitation, it is the practice of exploitation itself.  Problematically mixed with civil liberties, democracy has inextricably, irretrievably tied the African elite to exploitative capitalism, while at the same time, exciting, distracting and completely blinding them from real concerns, or even revolution

If colonialism thrived on the principle of divide and conquer, democracy thrived on a likeable but sadly, equally dangerous arrangement, ‘multi-party governance.’ As a principle, a multi-party order divides the elite into polarized camps, political parties, with one forming the government and the other, the opposition. After the country’s intelligentsia are divided, the democracy brokers and merchandisers proceed to conquer them. Deeply divided, and sometimes at the point of violence against each other, Natives never get the opportunity to stop and see their real enemy. The contest over retaining office becomes the major concern for the ruling party at the expense of developing the country. Instead of actually uniting to consolidate their position and use their combined brain power (as their anti-colonial intelligentsia did), the sitting government both imprisons and murders its critics—key human resources—leaving it empty of brain power, and terribly exposed. By the time the democracy thieves strike, the sitting president has sycophants and praise singers to consult with.

In the Ugandan example, we will never know (a) how much money Ugandan president Yoweri Museveni invests in keeping the office of president, since he has some of the most sumptuous classified budget votes—such as state house (spending USH550m daily – US$152,000) with a budget allocation above tourism, the lead foreign exchange earner). It is certainly in billions. Since he has life presidency ambitions, Museveni spends a great deal of time and money procuring members of the opposition. To divide them further. Museveni is also endlessly facilitating and privileging the security forces, which in 2020, took 10% of the entire national budget above health and agriculture. [There is no war in Uganda, and the budget has been as high as this for the last 15 years]. The guardian ministries of the man (state house and security) also get sumptuous supplementary budgets for classified expenditure! But the larger goal is to keep the president in power, since he sees a constant threat in the opposing side.

Parliament, which Museveni obviously does not need if there were no democracy merchandisers pushing him, is terribly bloated with over 530 legislators currently making it the biggest in Africa—bigger than South Africa and Nigeria. Annually, the Ugandan parliament burns USH1.3 trillion (approximately US$360m) of Ugandan taxpayer just for the theatrics of it.  Just for the theatrics of it.  Yet, everything of consequence in Uganda is pre-decided by Museveni before it is dramatized on the floor of Parliament. Additionally, Museveni employs hundreds of advisors, ministers, Residential District Commissioners (RDCs) with equally senior deputies, simply as part of his great retinue of patronage.

The amount of money and energy Museveni spends on playing other centres of power especially the Catholic church, Muslims and the Buganda kingdom elite is equally immense. These are not simple cash-staffed brown envelopes—which are far too common—these are big sums ranging from billions to churches to four-wheel Land-cruisers.  Just to buy off opposition in the name of democracy. But democracy merchandisers hold these items in his face, which forces him into concessions with specifically the foreign exploiters. Let’s now consider the related part of this argument.

As Ali Mazrui, 1997 succinctly demonstrated, the humanitarian values (freedom of speech, women emancipation and empowerment, freedom of choice, religion, etc.) believed to the guaranteed as so terribly inexistent even in the so-called democracies of the west.

Living in simple fear—not the principle—of the opposition (b) we would never know the amount of concessions, Museveni has had to make with the new democracy-wagging exploiters, the self-appointed vanguards of democracy to allow them to continue their pillage of Uganda, and him to continue governing. If he is not sending mercenary forces to Somalia, he is sending them to South Sudan, and DRC.  The details of these concessions remain top secrets to the Ugandan public.  The Ugandan parliament predicts that the country will need 94 years to clear this debt, which continues to surge every passing day. Business deals where Uganda is left with minority shareholding over its own resources such as oil are simply baffling.

Incidentally, all this rides on the wreck left behind by vanguards of democracy into African economies in the late 1980s when they coerced country after country into dismantling cooperatives that had enabled societies and the people to survive. The dismantling of cooperatives led to a rise in rural poverty after tilling the land had been made unprofitable.  If this was no colonialism—an outright plot to exploit and break the toiling masses of Africa —then we’ll never appreciate the depth of its damage to the continent.  Because after local economies were ruined, including the closure of all local banks – many of them closed without explanation – the vacuum left behind was filled by European and Asian banks. The Ugandan banking market is now dominated by foreign banks, with business-suffocating interest rates, making banks in Africa the most profitable in the world, yet the most inefficient—according to The Economist. It is extremely difficult, if not outright terrifying, for farmers and small scale businesspersons to access credit. Surprisingly, this so-called Washington Consensus is still enforced 20 years on – even when the damage is visible everywhere – and the WB has acknowledged its mistakes. What the fuck is this?

Yet farmers across Europe and North America are not on their own. They are heavily funded by their states. Take the example of Mali that Slavoj Zizek (2009) writes about, despite producing high quality cotton and beef, the two pillars of its economy, the country could not compete with the US and EU, where the same industries are heavily subsidised:

…the problem is that the financial support the US government gives to its own cotton farmers amounts to more than the entire state budget of Mali… the EU subsidizes every single cow with around 500 Euros per year—more than the per capita GDP in Mali.

These double standards are visible to every single soul from South Africa to Mali and Uganda (see also, Jörg Wiegratz 2019). The promotion of free markets remains a central idea to a so-called democratic government.  But in truth, it is outright exploitation through the international dictates of structural adjustment and open markets which are pushed down the throats of Africans as a core parts of ‘democracy.’ Only in Africa!

To return to the question why is there no concentrated movement against this new form of exploitation dubbed democracy (its free market economics, loans, and grants, and foreign aid) and enforced onto only small countries? This is because of democracy’s disguised logic of divide and conquer. The language of democracy ensures the best brains of the country are split into conflicting camps with one obsessed with  the holding onto the presidency as much of the intelligentsia remains blind but also conscripted to the networks and channels of exploitation.

The west’s no-change regimes, and PR presidents

One of the most powerful jokes of the 21st Century is the highly cited notion that “power belongs to the people.”  It never does, has never, and will never.  That in the exercise of democracy—specifically voting—ordinary folks wield their power to determine the ways in which they are governed, remains one of the biggest lies of our time.  The lie continues that by this single act of voting, they have power to restore civility, end dangerous policies of previous governments such as removing American troops from Iraq and Afghanistan, which since the start was based on fake intelligence, closing the very embarrassing Guantanamo Prison, or ensuring a minimum wage for workers etcetera.  It is all high sounding nonsense.  Ordinary folks have no power—except through violent revolution—but would be constantly manipulated into the belief in their electoral power.

The Slovenian theorist, Slavoj Zizek, was right when he claimed that while humanity was okay, 99 percent of people are boring gullible idiots.  They have been deluded into belief of possessing electoral civil power.  In truth, the world is run on self-interested authorities or autocracy.  These take two forms, institutionalised and individualised.  While in Europe and North America, authority or autocracy is institutionalised, it has tended to take individualised forms in Africa.  The west has extremely autocratic institutions, which constantly change their public relations officers—often problematically called Presidents or Prime Ministers.  The holders of these titles and offices actually have no power besides speech and celebrity.  See for example, be it Clinton, Bush, Obama, Trump and now Biden, America’s domestic policy on immigration, the police force, black folks, guns, women, the minimum wage will remain the same.  There will be minute adjustments that the very noisy American press will blow out of proportion discussing it endlessly.  But by and large, stuff remains the same.  American foreign policy towards the Middle East, Israel, Palestine, Iran and Africa will not change.  Change only comes by way of violent revolution, marches, strikes, community organising, media activism, etcetera—not through the facades of elections.

As an African watching  America from the outside, I agree with Syria’s Bashar-al-Assad’s conclusion that President Donald Trump’s crime was transparency about the intentions of America’s imperial interests.  While Obama and Clinton smiled and joked through their crimes in the Middle East and at home, Trump was boisterous and embarrassingly candid.  With more gusto, Trump simply continued Obama’s policies at home and abroad.  Surely, Joe Biden is already doing the same — with just a little sophistication and disguise. American and European presidents are like shirts and dresses, while some make the wearer turn out smart, others could simply mess-up their appearances.  But the bodies behind these fabrics remain the same.  The truth is, heavily invested, albeit invisible Hitlers, Mussolinis, Stalins, Lenins, and Napoleons control American and European institutions. True to their power, these invisible Hitlers and Mussolinis blatantly took away the megaphone from Donald Trump for constantly embarrassing them with terrible PR. They went ahead and killed those smaller units that sought to challenge their power?  [Please note, Facebook and Twitter are simply a manifestation, not the wielders of actual power].

The cycle of deception continues. Americans will always unite in stealing and killing from the rest of the world.  Then back home, lobbyists, bankers and the super rich will squeeze life out of workers and African Americans will constantly be jailed and murdered, as women march for equal work equal pay like democracy never existed.  It is all a deception.

The deceptive entanglement that democracy is more than elections, but all other civil liberties and humane treatment is terribly ahistorical. African history is replete with civil regimes that have no connection with our present perceptions of so-called democracy. In truth, the proposition that their democracy guarantees and is synonymous with humaneness and civil liberties is not just problematically ahistorical, but a dreadful deceptive. It is the trick. It is behind this claim that Africans have been duped, as their resources are being stolen under their noses.

Towards regimes of authority

After Tanzanian President John Pombe Magufuli had died, and the deafening elite noise boomed from every corner of the region, sloganeering about how Magufuli stifled dissent and free press, a friend of mine asked me to name the major opposition political party in China, and how many MPs they had in their parliament. I didn’t know. He then asked me to name the main opposition party in Russia, and how democracy—as dramatized in western Europe and North America—played out there. I did not know it either.  He moved on to the much admired Qatar, and the United Arab Emirates.  He mixed it up with Saudi Arabia, Turkey, Egypt, Argentina, North Korea, Iran asking me to name their opposition political parties.  It was such as mixed bag, and I did not know how to respond.  He then asked me about the quality of life in those countries compared to say the “more democratic” Great Britain, Kenya, Uganda or even South Africa.

Humbled, I then recalled Muammar Gaddafi’s Libya which the UN constantly ranked highest in Africa on its Development Index. Focused on items including literacy rates, women empowerment, living conditions, and healthcare, Libya, for years ranked above more democratic spaces such as South Africa and Nigeria. On their part, Russia, China and Turkey have a higher quality of life for their populations in addition to being major economic powers. Why, if they aren’t democratic? Why don’t they have open markets? Didn’t structural adjustment reach these places? Before asking about the civil liberties in these countries, my friend raised the story of Julian Assange and the asked whether I had read a Mazrui 1997 essay discussing how similar the so-called democratic spaces in the west aren’t any different from so-called authoritarian spaces in the Islamic world.

The exploitative dangerousness of democracy is captured in Slavoj Zizek’s eulogy to Nelson Mandela that appeared in The Guardian upon his death. Concluding that Mandela was a failure—as regards the uplift the victims of apartheid from the backwaters of the economy, land redistribution . Zizek speaks to a difficult capitalist-democracy dilemma, and how leaders get derided and fought as authoritarians and sometimes even killed. Zizek writes,

A leader or party is elected with universal enthusiasm, promising a “new world”– but, then, sooner or later, they stumble upon the key dilemma: does one dare to touch the capitalist mechanisms, or does one decide to “play the game”? If one disturbs these mechanisms, one is very swiftly “punished” by market perturbations, economic chaos and the rest.

Although Zizek speaks to open confrontation from capitalists, we need to appreciate that exploitative nature of capitalism has thrived with ‘democracy’ as its utmost enabler, its methodology, which most importantly, makes resistance to exploitation divided and distracted.

Across Africa, this dilemma of whether to or not to touch the capitalist machine is as old as independence. Those leaders who played the game were either favourably profiled in international presses, given lucrative deals in mining and other resource exploitation projects. In other cases, they were knighted, and sometimes awarded with Nobel prizes. If they touched or simply threatened to dismantle this exploitative structure, they were punished, either with sanctions leading to removal from office, assassinated or exiled. They would be labelled dictators.

It is noteworthy that those few African leaders in history who actually managed to destabilise the machinery of new exploitation—euphemised as ‘free markets democracy’—had to craft something entirely different. But they were fiercely resisted. Even if they had actually been elected, as soon as they touched the machinery of exploitation, they were challenged. Especially on land and resources exploitation reforms, Idi Amin, Robert Mugabe, John Pombe Magufuli are noteworthy. The core reason for dispensing with their democracy is that it has tended to bind government into contracts (globalisation, and free market), sensibilities (such as certain political freedoms, international human rights regimes etc), which are often selfishly and racially applied onto weaker countries and then exploited. International exploitative capitalism would be dead if it were not offered democracy as its handmaiden.

It is noteworthy that those few African leaders in history who actually managed to destabilise the machinery of new exploitation—euphemised as ‘free markets democracy’—had to craft something entirely different. But they were fiercely resisted

Nelson Mandela’s Nobel Prize winning genius was in deftly deflecting ANC land reform and economic redistribution movement leaving the economy in the hands of white South Africans. And because Steve Biko, Chris Hani, Winnie Mandela presented a persistent threat to white capital, they were purged.  It should be interesting to note that the land reform in Zimbabwe was for a while actually working despite the country continuing under sanctions and misinformation in the major media houses (see  Grasian Mkodzongi and Peter Lawrence, 2019).  Six years of John Pombe Magufuli would be characterised by immense international name-calling because he actually refused to cow-tow to the dictates of the democracy merchandisers.

Closely appreciating these exploitative dynamics of a mode of government—a more sophisticated mode of pillage and control just like colonialism—continues to be stifled by the democracy machine and lobby.  Africans will have to take a stand.  And standing up will be costly in terms of life and resources. Sanctions, death, wars will be created so as to reproduce democratic exploitation. But for the African who is convinced that democratic Uganda under Museveni or democratic Kenya under the Mwai Kibaki, Uhuru Kenyatta, or Raila Odinga rather than Libya under Gaddafi or Cuba under Fidel Castro has actually joined the thieves en-route to rob their father’s estate.

Of course, there are empty comprador autocracies, which are as bad as democracy. Of course, Libya’s Gaddafi would be more humane, and the example of what it has become is extreme.  But democratic Libya would never return to Gaddafi’s Libya, unless all Africans stood up.  Nor will democratic South Africa ever reach Gaddafi’s Libya. The values often confused with democracy were more often preserved under the Ottomans. The scholarship on the Islamic tradition is deep and explicit on humaneness, rights of women, the poor, social security, equality between races, workers, independent scholarship, and thus freedom of speech, but the language is never “democracy.” In truth, democracy is divide and rule. It is thuggery.

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This article was first published in the Review of African Political Economy Journal.

Since the promulgation of the Constitution of Kenya in August 2010, the Judicial Service Commission (JSC) is one of the Constitutional Commissions which has gone through what was described by scientist Thomas Kuhn as a “paradigm shift” in his book, The Structure of Scientific Revolutions. A paradigm shift was described in scientific terms as a way in which there occurs, or needs to occur, a fundamental change in how to describe a scientific development of basic concepts and practices that had previously guided that science.

Assuming exercise of judicial power is a science (even if social), and reflecting on where Kenya was during the tenure of the previous JSC that reigned before the fundamental changes that have taken place under the 2010 Constitution, Kenya has fundamentally transformed that institution.

The single most significant difference is that whereas in both the repealed constitution and the current one the JSC is a constitutional commission, the composition and number of members are radically different, giving the current commission 11 members with  some independence of thought and decision-making unlike the previous 5-member JSC.

The five members of the previous JSC were direct appointees of the president. They included the Chief Justice, the Attorney General, two judges appointed from amongst the puisne judges and finally the chair of the Public Service Commission. The requirement today that judicial officers elect their own JSC with a broad-based representation of various interests within the legal profession contrasts with the previous JSC which only represented the interests of the appointing authority. The President.

Therefore, whereas the previous JSC was filled with presidential appointees whose appointment was not even approved by the National Assembly, today all but six of the JSC members are officially nominated by the president but may or may not be approved by the National Assembly. This gives the National Assembly veto powers to approve or disprove that membership.

Chaired by the Chief Justice, the JSC includes a judge representing the Supreme Court; a judge elected by members of the Court of Appeal; a judge elected by judges of the High Court; a Chief Magistrate representing the Magistracy; and finally, two members (one man and one woman) representing the Law Society of Kenya (LSK).

The other members are more or less appointed with the tacit approval of the National Assembly. That is, if the president has sway over the National Assembly membership, as the current President has, through what in The Elephant has been described as the “Tyranny of Parliament by the Jubilee Party”, then the nominees have been appointed tacitly by the president in the knowledge that members of the National Assembly will raise no objections.

These other members of the JSC include the Attorney General, a member nominated by the Public Service Commission, and two members (one man, one woman) to represent the members of the public. Finally, the Chief Registrar of the Judiciary makes up the 11th member and is the Secretary to the JSC. The latter has no voting rights in decision-making.

Current context

In the current political context of the Building Bridges Initiative (BBI) debates, there are radical proposals around the JSC. Some of these include introducing an Office of the Ombudsperson, whose occupant will sit in the JSC. This has caused a political and judicial furore, particularly because it is proposed that the Ombudsperson will be appointed directly by the president.

In social and political spaces, some have opined that the Ombudsperson will be the president’s “watchman” in the JSC. It is no wonder then that there has been overt and covert resistance from the LSK, the JSC and the entire Judiciary. Kenyans have been here before and it is obvious that they do not want a return to the past.

Furthermore, the BBI intends that the two judges and one magistrate who are elected by their peers serve for a fixed term of five years. The constitution bestows the powers of nomination and election of these members on judicial officers, not on itself. Yet the BBI proposals tend to crystalise that power on the constitution. Thus, it has been argued that this is total interference with and an erosion of the independent choice of the electorate (judicial officers in this case) to hold their representatives to account.

Moreover, it is perceived as an attempt by the Executive to interfere with the Judiciary, with many recalling the president’s warning following the nullification of the August 2017 presidential poll that “we shall revisit” the judiciary. On his way out, Uhuru Kenyatta seemingly intends to make good his threat — let us also not forget that David Maraga departed office on a controversial note.

The former Chief Justice, David Maraga, ended his term by recommending that the president dissolve parliament for not conforming to Article 27 of the constitution — which provides that “The State shall take legislative and other measures to implement the principle that not more than two thirds of the members of elective or appointive bodies shall be of the same gender” — which did not go down well with members of his inner circle, and hence perhaps the need to “tame” the Judiciary.

Therefore, in the current debate pitting the Executive against the Judiciary through the BBI process, it is incumbent upon the JSC to stand tall and protect itself. It requires members of impeccable integrity, character, tone, gravitas and bravado to face present and future challenges.

This commentary delves specifically into the role of the JSC as provided in Article 172 of the Constitution, which is to promote and facilitate the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice.

Given that the Office of the Chief Justice is still vacant, it points out to the nuances that may emerge in the recruitment process, and why the role of each member is important, including that of the future female representative of the LSK to the JSC.

The JSC needs members with impeccable integrity, character, tone, gravitas and bravado to face present and future challenges.

This is so because currently there are only nine members, split between those who may be considered fully independent, who are five, and those representing the Executive, who are four. However, with the departure of the female representative, the “independents” go down to four: Mohammed Warsame, David Majanja, Evalyne Olwande (who represents the Judiciary) and Macharia Njeru (who represents the LSK).

It is my view that, as Philomena Mwilu is the acting Chief Justice, her legal and social history, her pending criminal cases and of course her controversial “acting capacity” as the Chief Justice, render her susceptible to the influence of “other forces” other than those she should ideally represent — her peers in the Supreme Court — when deciding who will be Kenya’s next Chief Justice. In case of a 4-4 tie, she may be called upon to be the tie-breaker. This is an important decision to make.

Electing the LSK Female Representative

As alluded to above, two members are elected directly by the membership of the Roll of Advocates (that the LSK scrutinises through an Elections’ Board) and they are formally appointed by the president through a Gazette Notice. In May 2019, Macharia Njeru — formerly the Chairperson of the Independent Policing Oversight Authority (IPOA) — won the Male Representative seat by trouncing the then incumbent Tom Ojienda. Today, Macharia represents the LSK in the JSC.

The first five-year term of the Female Representative of the LSK, Mercy Deche, came to an end on 24 March 2021 and although she is eligible for a second five-year term, she will be stepping down. In her view, Deche has served her term and is satisfied with her performance; she therefore wants to be succeeded.

However, since institutions are led by people, they reflect the personal convictions and commitments of those within them. The current JSC has been led by former Chief Justices Willy Mutunga and David Maraga, with the latter exiting the scene only recently in January 2021. The JSC advertised its search for the third Chief Justice following the “paradigm shift” in the appointment of members of the JSC referred to above.

This article aims to point out issues as they appear, issues that should be dealt with, and issues that should make advocates line up to vote in large numbers for whoever their choice will be. It is an election that advocates cannot afford to ignore, particularly in view of the ongoing BBI debates previously referred to.

Politics at the LSK

The LSK is in crisis — with some members seeking to remove the current president, Nelson Havi while others support him. Already a meeting to remove Havi had been called for the 27th March 2021.

With regard to the Female Representative position, the advertisement was made on 18 December 2020 by beleaguered Chief Executive Officer Mercy Wambua, who is not on good terms with Havi. The deadline for the submission of interest in the position was 18 January 2021. However, since then, the LSK has been suffering a severe crisis of leadership — both at the level of the Secretariat and at the Council which is led by Havi.

It is therefore inconceivable that the LSK will be a composite body with a leadership capable of successfully steering the election processes.

It is an election that advocates cannot afford to ignore, particularly in view of the ongoing BBI debates.

Unless something is done by the whole Council working together in harmony, with unity of purpose, and demonstrating ethical leadership, the upcoming elections are bound to be perhaps the most controversial in LSK’s history since the promulgation of the 2010 Constitution.

As stated, unlike the former Male Representative, Tom Ojienda, who sought a second term in accordance with the JSC Act, Mercy Deche is not seeking re-election. That election was very competitive since the difference between Ojienda and Njeru was not more than 300 votes. With Deche not in the race, the power of the incumbency is non-existent unlike during the Ojienda poll, which was a huge challenge.

With a divided Council, a seemingly authoritarian president who is accused of not consulting by some members of the Council, and a CEO faced with a dictatorial president, and court cases flying left and right, LSK is in troubled waters.

Changes in the Judicial Service Commission

As changes are happening to the LSK and the Judiciary, the JSC is also facing imminent changes. The biggest change has been the retirement of the former Chief Justice Maraga and the search for his replacement.

Since Maraga retired, media and other pundits, including lawyers, have been very vocal about the eligibility of the “acting Chief Justice”, Philomena Mwilu, to be given such a role considering the various criminal matters facing her in court. Indeed, a petition was also filed by Okiya Omtatah seeking a constitutional interpretation regarding this transition, and her eligibility and/or the legality of her position as “acting Chief Justice”.

Moreover, even within the JSC itself, similar questions have been raised both by the Commissioners and in the Secretariat, not to mention the murmurs at the top echelons of the Judiciary. Therefore, as the Commissioners seek to recruit the next Chief Justice, the politics of the institution will be laid bare.

The JSC will most likely be split in their opinion based on how they join(ed) the JSC. As mentioned above, only the Chief Justice is appointed through a public process and the nominee is sent to the president for formal appointment. The president’s “direct nominees” are four compared to the four who may be called “independent”. This is because, currently, the seat of the Female Representative of the LSK fell vacant on 24 March 2021. The Acting Chief justice is likely to lean towards the former group of “conservatives” as I shall demonstrate.

Therefore, as campaigns for the position of the LSK’s Female Representative begin in earnest, all the eight candidates for this position and the voting advocates will need to bear in mind what is going on in the JSC, as that is the institution they seek to join together with the new Chief Justice who will be the chairperson of the JSC.

The Campaign environment

In addition to the foregoing, there are other issues that shaped the campaign agenda in the period between the submission of papers on January 18, and the election on March 24, 2021. Already, we observed stay orders emerging from the courts stopping the LSK’s Elections Board from proceeding with the shortlisting and processes of preparing for the election of the LSK Female Representative.

Campaigning in the midst of the COVID-19 pandemic

There is no doubt that COVID-19 has altered our social, economic and political landscape. This elections taking place in an environment which is largely restricted through: limiting the number of gatherings; observing physical and social distancing even if the campaign is done in public halls; and no campaigns outside curfew hours, among other COVID-19 protocols that must be respected.

In this context, violation of the protocols could cost a candidate the seat. This could happen since the media will be watching, as will advocates. If candidates cannot observe the law, then their reputations are at serious risk.

Second, candidates who are tech-savvy will have an advantage, since campaigns will be done on new media, using Facebook, Twitter, Zoom meetings, and other such platforms. Those that will attract the biggest number of followers are likely to tip the balance of this campaign.

Finally, any candidate who wishes to win this election should of necessity be seen to be supporting the government, especially the Ministry of Health. This is not because one should support blindly, but in order to create linkages with the Ministry to support efforts to have Kenyans respect COVID-19 protocols and encourage them to get vaccinated. This could be as easy as linking one’s campaign sites with the relevant information from the Ministry, especially their daily updates.

Political knowledge and the IEBC

Running for political office requires knowledge of politicking, and the ability to debate issues without losing arguments. One should be consistent in messaging whether on social media or on traditional media such as pamphlets, television, radio, etc. Second, politics has neither permanent friends nor permanent enemies. It’s bare knuckles in political debates, but with respect when differences emerge.

Third, this is a political position, not a legal position and candidates need to learn this fast. In a period of less than eight weeks or so, things will turn hot, and it is not the best legal mind that will win the position, but the one with political guts.

Finally, the Independent Electoral and Boundaries Commission (IEBC) will oversee the elections. Knowledge of this institution will prove very vital for any candidate. The institution has a series of codes of conduct, protocols, regulations, and so on. Familiarity with the IEBC rules of procedure is essential for candidates.

The IEBC is an institution that has faced serious issues of integrity during every electoral cycle in Kenya. However, it has conducted itself professionally for other institutional elections such as that of the LSK. Candidates’ knowledge of past LSK elections and whether there were complaints concerning voting, counting, tallying, verification and announcement of the eventual winner is a valuable asset.

The typologies of voters

In his book, The Science of Election Campaigning, Afrifa Gitonga makes the argument that there are three types of voters in the world of politics. These typologies have been manifested variously in political competition and they include voters who are rational and who seek to question everything the candidate has done, if seeking re-election, or is committing to do for them for them by seeking office.

Second, sentimental voters are those attracted by sensual appeal and they will vote on that very basis. These voters are impressed by the looks, by the mannerisms and by the beauty of the candidate, and even by how they dress.

Thirdly, Afrifa talks of conformist voters who, unlike the two above, simply conform to how the tide is moving, by asking questions like “who are we voting for?” They go with the flow and do not make any rational or sentimental decision.

The advocates may or may not understand these concepts fully. Back in 2007 I wrote about the three typologies above and added two more: there are those who vote with the head (rational), those who vote with the heart (sentimental), and those who vote with the wind (conformist).

In addition, there are those who vote with the tongue (ethnicity of a candidate, which is very familiar in Kenya) and, finally, those who vote with the stomach (those whose decision is based on what they have “eaten” from the candidate). These typologies exist even amongst the advocates despite references to “learned friend” or “senior”.

Role of young lawyers

It is evident that there has been a debate between the long-serving “seniors” and the “juniors” — recently admitted advocates. The debate is basically about what young lawyers feel about the old and established advocates and the young lawyers’ role in the advancement of the legal profession in Kenya in the absence of equal and fair opportunities for progress. This debate has not ended, and it is not ending any time soon. It should be approached with caution and information on where this debate is headed could be a great piece of the puzzle in the elections.

There are those who vote with the tongue and those who vote with the stomach.

In my opinion, since each candidate has at least 15 years of practice as per the requirements, they belong to the “seniors” category. Those who have been practicing for less than 15 years have different perspectives about what these elections are about, unlike the “seniors” who know the difference between practicing law under the old legal framework of the repealed constitution and under the current decade-old constitution.

This was a hot issue during the May 2019 and is not to be ignored by any candidate as it could be a deciding factor in the forthcoming election.

Selling the agenda

Selling the agenda is the most important matter for consideration. It should document what the first five years, between 2021 and 2026, would involve. There are many problems mentioned in the policies — such as the BBI proposals — in the laws being proposed, the LSK leadership wrangles, the possible splits between the ”independents” and the “conservatives” in the JSC, etc. Prioritising what is to be tackled, and in which sequence, should not just be documented but should also be verbalised throughout the campaigns.

This should include appreciating, upholding and defending the advances made by the 2010 Constitution; providing a considered legal opinion about the BBI process; transforming the case management system to reduce the backlog of cases and ensure the speedy dispensation of justice; and, strengthening ethics and integrity by enforcing the codes of conduct, among others.

Eight candidates have been cleared to run for the position of Female Representative of the LSK to the JSC and they have formally submitted their nomination papers. The election board will vet these aspirants and determine who actually appears on the electoral ballot. Using the above typologies, lawyers are spoilt for choice, but this independent and objective assessment should help advocates select the best female candidate to represent the LSK at the JSC. Be on the lookout.