Saturday, October 24, 2009

Remodeling Kenya's Political System on a Chinese Foundation

I have suggested the importance of the Chinese model of state organization for both constitutionalist theory and the organization of states on the basis of a rule of law order quite distinct from that natural in the West. See, Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism. Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006; Larry Catá Backer, The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism (January 10, 2009). Journal of Chinese and Comparative Law, Vol. 16, No. 1, 2009; Penn State Legal Studies Research Paper No. 05-2009. For an oral summary, see the recently posted, Larry Catá Backer, Podcast of Presentation at Penn State: "The Party as Polity", Law at the End of the Day, Oct. 21, 2009.

It is clear that China's political model is potentially transposable to other states, assuming the right conditions and capacity for absorption within indigenous political culture. China's recent projection of economic power appears to have also increased interest in the transposition of China's political system to Africa. Recently Kenyan political elites from Kenya's Orange Democratic Movement have begun considering the potential for transposing elements of the Chinese system to Kenya.
Musalia Mudavadi, a senior leader of Kenya's Orange Democratic Movement (ODM) party, said here Tuesday that his party wants to learn from the ruling experience of the Communist Party of China (CPC).

Invited by the CPC, a delegation from ODM, led by Mudavadi, is visiting China from Oct. 14 to 21.

The ODM, which was founded in 2005, became one of the ruling parties in Kenya in 2008, with Raila Odinga, leader of the ODM as prime minister in a grand coalition government, and Mudavadi as deputy prime minister. Kenyan ODM party leader says hopes to learn from CPC's ruling experience, News of the Communist Party of China, Oct. 21, 2009.
This is an interesting development. On the one hand, it is possible that there is value in trans posing the Chinese state organization system to African states. A system based on a division of authority between the state organs, responsible for the administration of the state apparatus, and a "party in power" asserting political leadership within the rule of law framework of its own internal organization and the legal ordering of the state as whole, memorialized in a constitution, may be a useful disciplinary framework for African politics.

On the other hand, Africa has a sad history of following a Stalinist path in the conversion of Marxist Leninist theory to the construciton of state organs. Sadly, that transformation of political theory into cults of personality applied as well to transposition of Western democratic systems as well. It was not so long ago that African states started to rid themselves of their "big men." See, e.g., Alec Russell, Big Men, Little People: The Leaders Who Defined Africa (New York: NYU Press, 2000). And that form of political organization has attracted a substantial amount of international disapproval and juridical consequences.

Since the re-birth of the demands for greater democracy around 1990, Africa has moved unsteadily away from the single-party, single-leader model of rule even if free and fair elections have not been warmly embraced by many of its leaders. If [former Kenyan] President Moi's retirement and his acceptance, so far, of the result of the election, means Kenya is moving in the direction of those African countries where leaders do step down before they are pushed or before they die. But a political process is underway in Africa that hardly existed 15 or 20 years ago. Parties can campaign vigorously; presidents do accept defeat in votes and step down; and chosen successors do not always allow their previous leaders to pull the strings from behind the scenes - all examples that Africa has changed and is still changing. There might be a long way to go - but 20 years ago there would have been no question of President Moi stepping down and having to accept the defeat of his chosen heir.Keith Sumerville, Africa's Big Men and the Ballot, BBC News Online, Dec. 31, 2002.
More importantly, prior failed attempts at single party rule through big personalities has brought a measure of corruption and a consequential judicial condemnation, especially in Kenya. All of this is well captured in a recent corruption case out of Kenya, World Duty Free, Ltd. V. Republic of Kenya (ICSID, Oct. 2006) (holding at ¶¶ 180-182). The arbitral tribunal of the International Center for Settlement of Investment Disputes (ICSID) determined that an individual businessman (a citizen of Canada based in Dubai) could not enforce a contract with the Republic of Kenya that he had secured by paying $2 million to former President Daniel arap Moi.

So, one can only hope that if Kenya means to abandon the sort of Western style transnational constitutonalist framework within which its political system has been developing for some time and embrace a "party in power" system, that it take the time to adequately absorb the lessons of the Chinese system, and not merely pander to China for the purpose of securing more favorable trade terms. It is noteworthy that the ODM mixed politics and economic organization with trade talks. "Besides Beijing, the delegation also visited Hunan Province in central China to see the CPC's organizing structures in rural areas. The delegation also visited farms and agricultural machinery companies in Hunan. He hoped that Kenya could cooperate with China National Hybrid Rice R&D Center to product more rice in Africa." Kenyan ODM party leader says hopes to learn from CPC's ruling experience, supra.

More disastrous still would be the use of a Chinese political form as a cover for the reintroduction of systems of personal rule. Still more important, it is not clear that any move toward "party in power" governance and the separation of political leadership from the organization of government will be possible while political parties represent ethnic factions rather than class or other national elements. For an interesting suggestion along those lines see, Karega-Mûnene, Polarisation of politics in Kenya along ethnic lines, 18(1-2) Wajibu (May-July 2003); Godfrey Mwakikagile, Ethnic Politics in Kenya and Nigeria (Nova Science Publishers, Incorporated, 2001). The importance of the ethnic element in what passes for politics in Kenya is not something to be lightly dismissed. Nor is the violence that is grounded in political divisions that mirror ethnic-national loyalties. See, Larry Catá Backer, Democracy Part IX: Participation and Ethnic Rifts in Kenya, Law at the End of the Day, Jan. 28, 2008.

For China there is an additional danger as well. Association with known foreign elements of ethnic politics can cause embarrassment and ill affect Chinese foreign policy. Under the guise of interest in its political systems, Kenyan political/ethnic parties might seek to draw China into Kenya's divisive internal ethnic wars. In that warfare, it is not clear that there are any clear good choices for China. Indeed, it was not so long ago that members of both the ruling party and the ODM were accused of participation in ethnic fragmentation politics and the violence associated with it.
A government-sponsored commission in Kenya has accused a number of top-level officials of inciting and funding ethnic violence in the country that left thousands dead and hundreds of thousands displaced following disputed elections late last year. . . .It makes allegations against 219 persons, including many government ministers. . . . Most of the accused are supporters of the Orange Democratic Movement, or ODM, whose leader, Raila Odinga, nonetheless supported the establishment of a tribunal to try those politicians responsible for inciting the post-election violence. Odinga, who is not accused, belongs to the Luo tribe. In the run-up to the elections, the ODM forged a multitribal alliance against the Kikuyu, who have been regarded as economically and politically powerful since the 1960s. In last December’s elections, the Kikuyu mainly supported the incumbent president, Mwai Kibaki, whose Party of National Unity was thought by many Kenyans and outside observers to have rigged the polls. Their names are included in the "Schedule of Alleged Perpetrators," a 54-page appendix to the report of the Kenya National Commission on Human Rights, or KNCHR, on violence related to the country’s December 2007. Travis Kabulla, Report Accuses Top Officials for Post-Elections Ethnic Violence in Kenya, Fox News, Oct. 25, 2008.

So something as simple, and as appealing, as interest in transposing a political model, might, in reality, pose substantial dangers and raise complex issues of politics, internal relations, and the unsolved problems of Africa. On the one hand, the ODM may see in the Chinese model a way to construct a multi-ethnic state by shifting the hierarchy of power from ethnic membership to Party membership. While this is inconsistent with Western models of mass democratic states, it may provide a basis for shifting power hierarchies necessary for the construction of a single political state from the amalgamation of pre-colonial tribal-nations now forced to live with each other in a single state. But that movement by the ODM appears to exclude the ruling Kikuyu and thus provide a cover for ethnic violence and division by other means.

At the same time, others are seeking to apply traditional Western theories to construct a traditionally legitimate multi party state system of political culture from out of the ethnic divisions in Kenya. See, for example, the work of the Netherlands Institute for Multi-Party Democracy ("In the aftermath of the troubled 2007 elections, NIMD’s Kenyan partner, the Centre for Multiparty Democracy (CMD-K) played a visible and constructive role in fostering a multi-actor dialogue. The centre brings together political and civil society around a democratic reform agenda, and is currently working to build consensus for constitutional reforms." Id.). What this suggests is the possibility of competition for control of the fundamental framework for political organization in Kenya that may also acquire an ethnic dimension. In any case, China may soon discover these difficulties first hand in ways that will mirror the road to similar discovery experienced by the Soviets, British and Americans in the last century. In order to adopt a state-party model with Kenyan characteristics, transposing the potentially valuable and system-legitimating lessons of Chinese political forms, one first needs a state rather than a collection of ethnic states vying with each other for control of the state apparatus. To use the Chinese State-Party political framework to disguise efforts by one ethnic group (reconstituted as a party in power) to dominate others and control the state for the benefit of their own ethnic "nation" would exacerbate the political fracture in Kenya in a way that would weaken the legitimacy of the Chinese model.

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