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Analysis II
Last Updated: 02/01/2008
Hopes and Challenges Facing Emerging Democracies in Africa and Asia
Errol P. Mendes

The best hope for a peaceful world where fundamental human rights are respected is for democracy to ultimately triumph in fractured societies. However, for that to happen, certain preconditions must be established including the rule of law, an independent judiciary and media, a culture that begins to ferociously resists corruption and the establishment of truly independent organs of government that can ensure a fair democratic processes.


Is democracy in permanent crisis in societies plagued by ethnic, tribal, religious or economic rivalries? The world is witnessing the murderous rampage and riots in Kenya following rigged elections. The global community is also anxious about the turbulence in nuclear armed Pakistan following the assassination of Benazir Bhutto with many wondering about the complicity of security and intelligence agencies of the Musharraf government. Likewise we have seen the demolishing of any viable opposition in Zimbabwe before the Presidential elections in March 2008 that could threaten the continued torture of his country by President Mugabe.

 

Those who advocate democracy and democratic institutions for these societies are aware of the dangers that these rivalries pose for emerging democracies. However they argue that democratic processes such as elections and democratic institutions can soften such rivalries. Democracy advocates argue that giving people the vote allows for aggregation of all such social rivalries and permit peaceful adjudication of conflicts over resources, power and identity. Ultimately the democratic ideal is that democratic institutions can make the common good of society a higher ideal over the good of the individual ethnic, tribal, religious or economic social interests. 

 

The critics of this orthodox advocacy of democracy point to trouble spots such as Kenya and Pakistan to argue that democratic processes are particularly vulnerable to be hijacked by social rivalries. Such critics point out that where social differences have become relevant to have access to power and resources, both legitimate and corrupt, and the ability to control the state’s security and military forces, the ethnic, religious, sectarian or economic status card may be irresistible to manipulative leaders who then cause the human tragedies we see playing out in so many parts of the world that is striving to get a democratic foothold.

 

The best hope for a peaceful world where fundamental human rights is respected is that the orthodox advocacy of the merits of democracy will prove right in the long run. However, for that to happen, I suggest that the preconditions for democracy to triumph in fractured societies in the long run are the early emergence of  the rule of law, an independent judiciary and media, a culture that begins to ferociously resists corruption and the establishment truly independent organs of government, such as independent election commissions that can ensure fair democratic processes.

 

These missing elements in so many emerging democracies were also a critical factor in the debacles we see in Kenya and Pakistan. Sadly, we also see common missing factors in both critical democratic processes. In Pakistan, the unraveling may have commenced with the dismissal of the country’s Chief Justice Iftikhar Chaudhry which triggered large protests across the country, including by legions of lawyers.  While he was forced to reinstate the Chief Justice, when his subsequent election for a new term as president by the provincial and the national legislature was likely to be invalidated by the Supreme Court, he took action that grossly undermined the Rule of Law and an independent judiciary. On November 3, 2007, General Musharraf declared a state of emergency, removed many of the Supreme Court judges, put the Chief Justice under house arrest and put compliant individuals in their place. Not unexpectedly, the judiciary then dismissed any challenges to the General’s eligibility to be President and ordered the Election Commission to legitimize him as the winner. Despite stepping down as head of the Army and declaring an end to the state of emergency, the General’s legitimacy is now being questioned not only be the extreme elements in society, but by large parts of the moderate elements of society such as the legal community.

While, he may be a supported by the U.S. and other democratic countries in the so called “War against Terror”, his actions may potentially be undermining the long term stability of his own country and perhaps be conducive to the terrible goals of the very extremists, Al Qaeda and Taliban enemies, including those next door in Afghanistan, that the General and his western allies such as Canada are combating and taking major casualties.

Likewise, before her assassination, Benazir Bhutto questioned the independence of the Pakistan Election Commission and forced through a legal challenge to get the Commission to redraw the voters list. When so forced, in October 2007, Pakistan's Election Commission established "final list" of voters, with a new total of votes at 80 million, an increase of 28 million from the first list set in June, 2007. Many believed that the last national elections in 2002 in Pakistan that elected many of General Musharraf’s allies were rigged. Before her death, Benazir Bhutto also warned many both within her country and her U.S. allies that the January 2008 elections were also likely to be rigged. Finally, there is mounting suspicion that the security and intelligence agencies of the Musharraf government deliberately did not provide adequate security to former Prime Minister Benazir Bhutto and so may either have directly or indirectly contributed to her assassination.

The parallels with the unfolding tragedy in Kenya are painful to observe for one born in that country and whose family loved its people and its great beauty. The 1990s gave the Kenyan people great hope that multi-party democracy would give them the ability to rise out the curses of poverty, crime and violence that has plagued the country. However, decades of one party rule and the 24 year kleptocracy and corrupt Presidency of Daniel Arap Moi dashed the hopes of its citizens until President Mwai Kibaki came to power promising a rainbow coalition that would promote rigorous anti-corruption laws and strengthen the rule of law. It did not happen. When John Githongo, the head of the ant-corruption commission appointed by President Kibaki to fight corruption, revealed the extent of the corruption in January 2005 and  had to flee to Britain in fear of his life. The corruption and the abuses of the rule of law continued and the pressure cooker of unmet expectations began to reach boiling point long before the recent elections.

What caused the inevitable explosion is eerily similar to the debacle in Pakistan. Many allege that the judiciary is not independent and this view was reinforced by the appointment of six senior judges by Kibaki just days before the elections. The Kenyan Electoral Commission declared President Mwai Kibaki the winner before all the votes were finally counted so that President Kibaki could be proclaimed on the state broadcasting television as the continuing President. The independent press was not given any time to question the legitimacy of this self-proclamation. This was even while EU observers claimed the election was flawed citing for example that voter turnout in one area was recorded as 115%.  While some cabinet ministers who had lost their seats in the election were continuing to issue orders, including ordering brutal suppression of demonstrations against the rigged elections, Kenya Attorney General Amos Wako was calling for an independent investigation into the election results. This crass manipulation of the democratic process has caused simmering tribal divisions and rising anger over corruption, cronyism and unrelenting poverty in the mega slums of Nairobi to boil over into murderous rampage. More than 400 people have been killed, including some 30 burned alive in a church and a quarter of a million displaced.

The U.S., the U.K and the African Union have called for both Raila Odinga, the leader of the main opposition party and Mwai Kibaki to form a coalition government of national unity. Given the growing enmity and impasse between Kibaki and Odinga and their followers, such an agreement is increasingly unlikely. Such an agreement would also not guarantee the long term stability of the democratic process in Kenya. What may be the only feasible short term solution is an interim government that prepares for a rerun of the elections or an internationally supervised recounting of the votes, if they still exist.

In both the troubled countries of Kenya and Pakistan, what is needed before any sustainable democracy can be realized is for key partners and allies outside these two countries and in other emerging democracies and key stakeholders within these countries to focus on the following: First, the imperative of an independent judiciary and an independent bar that can bring challenges to the abuse of power and corruption from the highest ranks of government. Second a truly independent elections commissioner that can challenge the actions of any party before, during and after the elections and contest the results before an independent judiciary. Third, there is a need for an independent press which can not be shackled from reporting any abuse of power or corruption. Finally, the need for all military and security agencies to follow the rule of law and ensure that neither their own members or those of the government that is charged with their oversight can violate domestic constitutional restraints or those required by international human rights and humanitarian law. Without these critical preconditions, we may only see more examples of humanitarian crises in the emerging democracies of the world.

Professor Mendes has taught, researched, consulted and published extensively in the area of Global Governance, International Business Law and Ethics, Constitutional Law and Human Rights Law. He is Editor-in-Chief of Canada=s leading constitutional law journal, The National Journal of Constitutional Law. He is the author or co-editor of five books, including the landmark constitutional law text, co-edited with Senator G. Beaudoin, The Canadian Charter of Rights and Freedoms, 3rd Edition, Carswell, 1996 and the internationally recognized texts, Towards a Fair Global Labour market: Avoiding the New Slave Trade, Routledge, New York and London, 1999, (co-authored); Democratic Policing and Accountability: Global Perspectives, Ashgate, U.K., (co-edited); Between Crime and War, Terrorism, Democracy and the Constitution, Carswell, Toronto, 2003 (co-edited); Global Governance, Economy and Law, Routledge, New York and London, 2003.

Born in Kenya, East Africa, Professor Mendes obtained his Bachelor of Law degree from the University of Exeter, England, where he ranked first in his graduating class. He obtained his Master of Laws degree from the University of Illinois in the United States. He was called to the Bar of Ontario in 1986.


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