I have been reading many contributions on the unfortunate developments in Kenya. Some addressed the fundamental issue of what could be done to enhance democracy as a peaceful process in Africa (and, by implication, other Third World regions). 

The problem, as I see it, is a lack of appreciation for the fact that democracy not so much "fails” in Africa (and elsewhere) as that it hasn’t really been tried. 

What’s happened is that a crude conception of what characterises "Western” democracy has been exported by the West and imported by putative democracies.  That crude conception is that "democracy” is the counting of heads, a process, the purpose of which is to find out who has the most support, and then to let them govern as they wish. 

However, power shifts by ballot instead of bullet only if there are sufficient restraints on what those with power can do to those without it, that the consequences of being out of power are curtailed.

I am involved on the periphery of the constitutional process in another troubled country, Nepal, and played a significant role in the South African constitutional process.  My contribution in both cases, and in a few others where I got involved, has been to discourage obsession with the concept of democracy as being a process to establish winners and losers, and to focus attention on what’s needed to protect losers sufficiently to ensure that the consequences of losing are minimised.

There are 25 or so "checks and balances” in most Western democracy constitutions, almost none of which have been incorporated in Third World "democracies”, including Kenya.  One of the most important is the Rule of Law, which has, sadly, become a largely contentless cliché. 

The components of the Rule of Law as opposed to the "Rule of Man” of greatest importance are:
Laws must be objective not discretionary - so that there is no change of patronage, nepotism and favouritism - people’s rights must be a function of law, not the whim of politicians and officials granting licences, protection, subsidies and contracts.  Corruption, for instance, is not a manifestation of a lack of "clean” administration or "clamping down” on it, but of the ability of officialdom and politicians to grant or withhold benefit.

There must be a Separation of Powers - so that only the legislature legislates (makes laws), the executive executes (implements laws), and the judiciary adjudicates (settles disputes and imposes sentences and penalties). 

Unfortunately there is no separation of powers in the Third World, yet it is taken for granted in the First World.  In Kenya, for instance, countless substantive laws (as opposed to implementation regulations) are made by administrative decree and the executive has many tribunals and quasi-courts settling disputes and imposing penalties.

There’s much more to the Rule of Law, but these two components alone, if understood and implemented in emerging democracies, would go a long way to reducing the intensity of the battle for power, because they reduce the unfortunate implications of losing.  What matters is the extent to which those who govern can victimise the governed.
Another well-known constraint on those who govern is a Bill of Rights, which is regarded as "democratic”, yet its sole purpose is to limit democracy - more precisely to limit those who govern. 

Most Third World "democracies” have Bills of Rights, but they miss the point.  Unlike First World Bills of Rights, they are characterised by non-justiciable "second” and "third” generation rights, which obfuscate and dilute the essential purpose of a Bill of Rights, which is to specify what’s not voteable, what the majority may not do.

What we should all do at this time of crisis and reflection in Kenya is contribute to a better understanding of why there’s conflict - because the price of being out of power is higher than the price of resistance - and how to prevent it henceforth - which is to have unambiguous institutions protecting the governed from those who govern.
This syndicated article by AfricanLiberty.org was written by Leon Louw, Executive Director of the Free Market Foundation in South Africa. Louw is the author of ‘Habits of Highly Effective Countries”.

Contact: leonlouw1@telkomsa.net