Balkinization

What a Constitutional Crisis Looks Like

Mary L. Dudziak

"We

are in a constitutional crisis," Kenya opposition leader Raila Odinga said today, as the Kenya election crisis continues to unfold. There was much debate about whether a constitutional crisis was unfolding when the United States faced its own presidential election debacle in 2000. The Kenya news, in contrast, is often collapsed into a simpler story about tribal violence. This tends to reinforce the dominant narrative of Africa as a region of unending despair, where legal reform seems hopeless. South Africa, with courts that look familiar to us, is held out as an exception.

Although tribalism is an element of the Kenya story, with members of smaller tribes acting on age-old resentment toward the Kikuyu, who have dominated Kenya politics since independence, it is also a political crisis, and Kenya politics in the last decade have unfolded in the context of an on-going debate about constitutional reform. The branch of government at the center of constitutional debates has not been the judiciary, but the executive.

"Big man" politics dominated Kenya for decades. The release from detention of Jomo Kenyatta became a demand of the independence movement in 1960-61, and Kenyatta himself, who would become the nation’s first President, was a focus of Kenya nationalism as different tribes in the colony joined together as a nation for the first time. Kenyatta would lead the nation until his death in 1978, when Vice President Daniel Arap Moi took the reins of power, only to release them after two decades of autocratic rule when post-Cold War democratic reforms swept the world.

As Kwasi Prempeh has illustrated here and here, the most interesting story in contemporary African constitutional politics is not what courts are doing, but the role of structural constitutional limits on the executive, and the troublesome persistence of "imperial" presidencies.

The scope of presidential power was central to recent efforts to rewrite the Kenya constitution. President Mwai Kibaki, initially elected on a platform that endorsed constitutional proposals that would limit his power, stepped back from this pledge after his 2002 election. His constitutional proposals maintaining a powerful presidency were rejected by voters in a constitutional referendum in 2005. The 2007 elections occurred against this backdrop of national debate over the nature of the Kenya presidency.

"Many Kenyans thought that last week’s election would mark a watershed in the country’s political history," writes Robin Lustig, "the moment when leadership passed to a new generation. They feel robbed by the old guard, the elite who have held on to power for so long." Whether constitutionalism is on track in Kenya turns on whether presidents cede power following regular, multi-party elections. So it is not just tribal rivalries that are at stake in Kenya today, but whether the promise of constitutional reform, and the basic practice of democracy, has meaning in Kenya.

In recent news, African Union leader, Ghanaian president John Kufuor, is traveling to Kenya to mediate. As in the recent Pakistan crisis, lawyers are playing a role, with the Law Society of Kenya calling upon Kibaki to step down.

What role does the United States play in this? During the Cold War, the United States turned a blind eye toward human rights abuses under Kenyatta, in the interests of maintaining ties with a Cold War ally. A question we must ask about current interventions in Africa and elsewhere is whether the "war on terror" drives the U.S. to support reliable friends and to ignore their failings. The U.S. appears to be playing a helpful role in the current crisis, with United States assistant secretary of state for Africa Jendayi Frazer traveling to Kenya to promote mediation between the parties. "The people of Kenya were cheated," she said.

The U.S. aim of promoting democracy around the world is better served by promoting democratization, including fair elections, rather than the Cold War model of supporting loyal allies.

For those interested in following this story, I’ve posted Kenya news links on the Legal History Blog.

Photo credits: Raila Odinga, Mwai Kibaki.

Labels: Africa

Posted 12:51 PM by Mary L. Dudziak [link]

Comments:

I thought the 2000 election was all about tribal violence. All those screaming congressional staffers flown down to intimidate the vote counters in FL? We saw right there the darkness at the heart of the Republican party.

# posted by

Mark Field : 1:25 PM

Yup, all those vote counters so intimidated, that if they couldn't count the votes without witnesses, they didn't see any point in counting them. Ghastly, it was.

# posted by

Brett : 10:22 PM

Yup, all those vote counters so intimidated, that if they couldn't count the votes without witnesses, they didn't see any point in counting them. Ghastly, it was.

They may have lacked the drunken "courage" of the Nazi thugs, but they didn't lack the mindset.

# posted by

Mark Field : 10:59 PM

If you're talking about the Palm Beach elections officials who tried to move the recount out of observation of the poll watchers, and gave up on recounting when the attempt caused a mini-riot, I agree. They had the mindset, but not the courage. Real Nazi thugs would have sicced the police on the rather restrained 'rioters', and gone ahead with the unobserved recount, and sneered at anybody who doubted that Gore suddenly did massively better once nobody was watching them do the counting.

Sorry, Mark, there's no positive spin on the Palm Beach attempt to do an unwatched recount, and the subsequent decision that it wasn't worth doing if it had to be watched. There just isn't. The way it was stopped wasn't exactly by the book, but what they stopped was strictly contrary to said book, and for good reason.

Poll watchers exist for a reason, and anybody who tries to move the count beyond their view is up to no good, and you'll never convince THIS poll watcher, who's seen some ugly stuff go down even with us watching, otherwise.

# posted by

Brett : 7:06 AM

There are other countries where, if we measure progress by things that look like "ours," there is cause to take heart. Tanzania and Ghana both deserve respect and support for the progress and stabillity of their legal systems.

Zimbabwe-- a country which perhaps out to be able outshine any other has been allowed by the West and by Africa itself to decay below the highest prospects that it once showed every sign of being achieved and sustained.

There are many international efforts underway concerning Zimbabwe including those led by Archbishop Sentamu of England.

Would consider profiling those efforts and keeping track of them as well -- in the interests of all of us?

# posted by

Tantallonblog : 10:27 AM

Real Nazi thugs would have sicced the police on the rather restrained 'rioters'

Apparently it escaped your keen powers of observation that real Nazis didn't bother with the police, but took the law into their own hands. Like the thugs trying to intimidate the vote counters.

The Republican party has proved itself quite gifted at exploiting legitimate powers and abusing them. Yes, we need security. No, we don't need fear and hysteria about Communism. Yes, we need to stop crime. No, we don't need racist appeals to fear. Tribal politics, indeed; it's the history of the Republican party for 60 years. They're willing to sell out America for party advantage, and to use bullying and thuggery to do it. It's disgraceful.

# posted by

Mark Field : 11:27 AM

In response to Tantallonblog: Stay tuned for a new blog, planned by the Africa Section of the Assoc. of American Law Schools, which may follow some of the issues you're interested in. If other readers know of good blogs that follow law and politics in Africa, please send a link. There are good African Studies websites (some listed here: http://mdudziak.com/resources.aspx -- scroll down to African Studies links), but I haven't found helpful blogs in the field so far.

# posted by

Mary L. Dudziak : 3:36 PM

Mark, we've pretty much run this into the ground, but I'm going to make one last attempt to get this across to you before I drop it.

I have worked as a poll watcher. I have seen what elections workers will attempt to get away with in the full, unobstructed view of a poll watcher of a different party, standing there with notebook in hand, and a frown on their face. And it isn't pretty. Hell, I nearly got ejected from a polling place for pointing out to one of the workers that, when a blind voter asks who the candidates are, you can't just tell them who's running for your party, you've got to impartially list the other candidates, too.

What the Palm Beach vote counters were doing, and what your "Nazi thugs" intimidated them into abandoning, was moving the recount into a room where the poll watchers would no longer be able to directly view the counting process. Yes, they would have been able to watch, through a window, from a substantial distance, far too far to see if anything crooked was going down.

You will never, and I do mean NEVER, persuade me that there is a legitimate reason for vote counters to move the mechanics of a contested recount beyond the observation of poll watchers. NEVER. I don't care what pretext they cooked up, it doesn't matter. You. Just. Don't. Do. That.

EVER.

Your "Nazi thugs" intimidated the Palm Beach vote counters into refraining from an action which has no purpose but to facilitate ballot fraud. If you think that's the stuff of Nazi thuggishness, you have a really, seriously warped understanding of National Socialism.

# posted by

Brett : 4:31 PM

Brett, what's seriously warped is your sense of what those thugs were doing in FL. There's no doubt there's a need for poll watchers. That's not what they were there for. They were there to intimidate, to bully, to harass.

# posted by

Mark Field : 4:37 PM

Just to bring this full circle back to Kenya, and to reinforce my original point, what the Republican staffers and other outsiders were doing in FL is what the New Left and its wannabes in my student days liked to call "mau-mauing". I hated it then and I hate it now.

# posted by

Mark Field : 7:38 PM

Oh, there's absolutely a need for poll watchers. And there's a need for the counting to take place where the poll watchers can actually watch. Maybe you could try getting a tad upset about the attempt to prevent THAT in Palm Beach, while you're doing your circuits on that high horse.

That confrontation wasn't the simple scenario of thug vs blameless you're painting it as. Try to show some recognition of that.

# posted by

Brett : 9:14 PM

Oh, there's absolutely a need for poll watchers. And there's a need for the counting to take place where the poll watchers can actually watch.

I've already agreed with this. The fact that you keep trying to obscure thuggery by hiding behind an irrelevant point does not speak well for your position here.

Look, the legitimate need for poll watchers was something to be worked out in FL, and by Floridians. It wasn't the business of Republican professional staffers or YAFfers or anyone else from outside FL. And within FL, the solution to the problem was a suit in court to enjoin the counting in the absence of appropriate safeguards, not mau-mauing by a bunch of Brownshirt-wannabes.

# posted by

Mark Field : 12:05 AM

Look, Mark, I know from your previous writing that you're not this stupid or oblivious. The Democratic poll workers, in a recount where their favored candidate was only a few hundred to a thousand votes short of being elected President, were deliberately taking ballots beyond the view of poll watchers. A couple hours privacy and a handful of paper clips, and no forensics lab on the face of the earth could have proven that Gore's sudden gain of enough votes to put him over the top was manufactured in that room.

The were either stopped then, or any later legal challenge would have been utterly moot. That "riot" was the only way to preserve the chain of evidence your later legal action would have needed!

And having been intimidated into not undertaking an action which would clearly facilitate ballot fraud, they then decided that it wasn't worth counting the ballots after all, if they had to have witnesses present while they did so. Which is a pretty damning fact, if you're at all objective, which you're not being in this case.

You can add 2 plus 2 and get 4. You just don't want to.

# posted by

Brett : 5:38 PM

Brett, aside from your suspicion of poll workers, there are at least two flaws in your argument:

1. How did the thugs from out of state know, far enough in advance, to get down to FL in order to prevent this terrible event, yet the actual Republicans in FL were unable to do so?

2. Assuming your scenario played out, the correct response still is not a riot, it's a suit asking that the ballots be thrown out. That's what distinguishes a judicial system from vigilante justice. Sorry, but the KKK doesn't get to "protect" elections, and neither do Republican apparatchiks.

# posted by

Mark Field : 7:09 PM

"Assuming your scenario played out, the correct response still is not a riot, it's a suit asking that the ballots be thrown out."

God. If you saw Boss Tweed carrying a ballot box towards the door to the incinerator, and somebody stood in front of him and blocked his path, I swear you'd call the police and lodge an assault complaint.

The courts do not have the divine power to undo every evil you stand by and permit on the theory that you'll later file a lawsuit. Something you doubtless understand in cases where the evil wouldn't redound to your benefit.

I also think we have a fundamental philosophical difference here over the extent to which we have delegated the right to engage in violence to stop evil to the state. If you can even call that attenuated 'riot' "violence". Max Weber's definition of the state is not exactly uncontested.

# posted by

Brett : 6:45 AM

This post has been removed by the author.

# posted by

Mark Field : 11:32 AM

I'm anxious to know just how far my newfound power extends. If I see that President Bush is authorizing torture or engaging in an unlawful war, can I shoot him?

For the sake of formality, I'd like your advice in writing. Just in case, Yoo know.

# posted by

Mark Field : 1:32 PM

I don't think I need, in the present context, to answer that question. The present context, after all, being a 'riot' where nobody got shot. And while there are claims somebody got "roughed up", I note that no assault charges were filed.

One last time, if this is what you think constitutes "Nazi thugs" in action, you really need to review the history of Nazi Germany.

# posted by

Brett : 9:13 AM

I don't think I need, in the present context, to answer that question.

It's merely an extreme example given to make the point that your defense of vigilante action has no logical stopping point. Rioting in order to intimidate public officials? The KKK would be proud.

# posted by

Mark Field : 10:52 AM