Have Faith, By 2030 Uganda Will Be a Democracy – Pointers From Kenya

Charles Onyango-Obbo

22 June 2011

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On Monday, something unusual happened in Africa, and in Kenya. Dr Willy Mutunga, until a few days ago the Eastern Africa Representative for the Ford Foundation, was sworn in as Kenya’s first Chief Justice under the country’s new constitution.

Mutunga, a lawyer who was jailed by then president Daniel arap Moi for his pro-democracy activities in the 1980s, is known to many civil society activists and progressives in Uganda. He used to joke that whenever he went to Uganda, he feared that anti-gay politicians like MP David Bahati would arrest and take him away. Mutunga is a very liberal chap, and actively supported the campaign for gay rights in Uganda too. He wears an ear-stud, and when he swore in as Chief Justice, he had a glittering one on!

He has also been twice divorced.

Mutunga was a friend and admirer of the great late Ugandan poet Okot p’Bitek. Bitek, as all those who have read his book, most famously Song of Lawino, thought that Christianity was a sham that was used to rob and enslave the African people, and believed very much in our traditional variety of religion.

Despite his anti-Christian views, when Bitek died in 1982, he was buried in a religious cemetery in Gulu. After Mutunga visited Bitek’s graveside in late 2003, he wrote that he would have exhumed Bitek’s body from the religious grounds and buried him in the village among his ancestors if he had his way.

The short of it is that that man is easily the most liberal Chief Justice in the world. It is like getting Dr Joe Oloka-Onyango, Dr Sylvia Tamale, law don Fred Jjuko, and Prof. Mahmood Mamdani and rolling them into one.

When Mutunga was interviewed and picked as the candidate for CJ by Kenya’s Judicial Service Commission, most people swore that President Mwai Kibaki would reject his name. After all, in 2003 in the heady days after the opposition National Rainbow Coalition (NARC) had become the first, and last, Eastern Africa opposition party to defeat a ruling party democratically at elections, Kibaki appointed Mutunga to a fat job.

Mutunga refused it, saying he was only interested in ending Moi’s despotic rule, not a political job. Kibaki is a proud golf-playing old man, a fairly conservative fellow who seems to believe that if you didn’t go to Makerere University in the late 1950s and early 1960s you are not educated, was not amused.

To the surprise of many, within about 24 hours, Kibaki had signed on to the nomination.

Kenya has been a troubled country, and still remains so. It alone in East Africa has not had a “revolution”. Yet, amidst its cutthroat and fractious politics it still makes tremendous economic progress (witness its ambitious infrastructure projects) and is evolving into a modern democracy way ahead of the other countries led by “revolutionaries”.

Under its new constitution, Kenya is the only country in the world that televises the interviews of its judges twice (in the Judicial Service Commission and in Parliament) – and they are tackled hard. When the interviews started, thousands of people were glued, fascinated to see feared judges being reduced to near tears.

It is probably also the only country where the candidates for Chief Justice and the Supreme Court are not handpicked or nominated by the president. The jobs are advertised, candidates apply and the JSC shortlists, interviews them, and sends its pick to the President.

From 2012, it is likely to have the most limited presidency in Africa. The president has only about 10 per cent of the budget to dole out his patronage and fund his pet projects. The bulk of the rest are fixed; both by a constitutional cap, and a negotiation process.

Also, from 2012 there is only one job that a Kenyan president can promise you and you are sure you will get it–that of majority in Parliament (provided his party gets a majority in the House). The rest he has to beg and negotiate with Parliament and Senate to get through.

Where is all this leading? First, give that heightened opposition activity in Uganda and an equally determined crackdown by the government, that democratic struggles, even when they face many setbacks they did in Kenya, are never in vain. With time they breed meaningful change.

Second, that the gun is not the only way to overturn an old backward political order.

Third, you need a massive civil society effort to combine with active opposition politics and an intelligent press, to make lasting democracy happen (with minimum casualty). Civil society in Kenya is huge, noisy, and tireless.

Indeed, even after a repressive order is overthrown through armed rebellion, you need civil society to complete the circle. Unfortunately, in Uganda, civil society is nowhere near where Kenya’s is.

Fourth, and finally, Kenya teaches us that real change doesn’t come overnight. The struggle for the constitutional order in Kenya we see today took 30 years – and still has a long way to go (and could unravel). The current “third wave” of democratic struggle in Uganda only started in 2000. That is a mere 10 years. So we should wait until 2030 to say Uganda will never be a free law-governed democracy.

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