POLITICAL RIGHTS

On 9 August, 2022, Kenya as a whole will be exercise their civil and political rights as envisaged under Article 38 of the Constitution. This will be the third general election to be witnessed under the New Constitution.

A little background story of the first election under the New Constitution, that was the year of 2013. It was an exciting moment for every Kenyan as it felt like a new dawn. It will forever be a memory to all Kenyans whether dead or alive, that the new Constitution which was promulgated on 27 August, 2010 under the realm of President Mwai Kibaki was a form of hope for a better Kenya, what was witnessed in the year 2007/2008 election was a mark to everyone that we do not want to go back as the results were far more horrible than great. People lost families, their homes, their sense of belonging, hope to a better future others died later with no justice. A people with no hope is a dangerous people, the new Constitution was marked with hope to its people and to restore the hope that was lost with the need to build Kenya as a democratic nation.

Elections in Africa has been witnessed to be a unique moment where its citizenry are seen to be participating in a democratic event. Elections are marred with everything but the unique intention of free and fair objective as intended by the political rights and freedoms as envisage in various instruments including the Constitutions. To borrow the whole context of President Abraham Lincoln speech on democracy, while delivering the speech the former President took notice of the recognition of founding fathers and the angle they took to fight for recognition of the people and their importance in realizing the value of what we now perceive to be democracy. He alluded to the fact that the founding fathers in their fight their end result was to establish a NEW NATION democracy comes in to observe whether the so called NEW NATION can be long endured.

President Lincoln in his speech takes notice of the need to honor those who died in the name of protecting the deep sovereign of democracy, the value of putting their efforts moving forward as hope that what was fought for had value and the need to uphold that intended value and that the honored deaths shall not be in vain and in the new awakening freedom the living shall be guided by a government that is of the people, by the people and for the people.

In Kenya, the Constitution is quite impressive in advocating for civil and political rights in a democratic notion as implored in the Lincoln Speech. From the genesis of the Constitution, it breathes life into the recognition of its people and their obligation in acknowledging the supremacy of Almighty God. This might be controversial as the same Constitution declares that Kenya does not have a state religion and that every person has a freedom of belief and/or religion. The Constitution proceeds to recognize that the efforts of the before in fighting for what we know now as democracy are honored in their aim to heroically fight for our freedom and justice to our land. The people have unequivocally taken recognition of having a government that is based on the essential values of Human rights, equality, freedom, democracy, social justice and the rule of law and the most important is the emphasis on the need to adopt and enact and give the current Constitution to its people and the future generations to come.

Civil and Political rights are among the universal recognized rights that have a long history attached to it. Why do we advocate for civil and political rights? What is the value of voting for people to represent the needs of the masses? Why do we have elections? What is free and fair elections and its threshold in an election? Do we still have the spirit of democracy in the version pronounced by President Lincoln that a government of the people, by the people and for the people?

Article 38 of the Constitution of Kenya, is the concrete Article that has expressly dictated the contents of these Rights. A further look back Article 1 recognizes the sovereign power belongs to the people and that this power may be exercised directly or through democratically elected representatives. This is where the conversation of political rights commence. Power belongs to the people and is only exercised in accordance with the Constitution. Art. 38 guides the exercise of political rights.

There is an interchange of use of the word every person and every citizen in the context of Bill of Rights. There is no direct definition of who a citizen is but the Constitution tends to qualify one to be identified as a citizen either by birth or registration. A citizen can be loosely defined to be a person who is a member of a nation or recognized through legal mechanism to belong to that nation and has been entitled with the rights and privileges and obligations that are set within that nation. Citizenry has the sense of belonging, identification, originality where one comes from. Person has been defined to include juristic persons and thus the need to emphasize that political rights are rights that are individually entitled and can only be exercised and enjoyed in accordance to the provisions of the law.

Article 38 has three parts to it- (1) Decision to Participate in Political Choices (2) Guarantee of Free, Fair and Regular elections based on universal suffrage (right of every adult citizen to participate in political decisions) and free expression of their will and (3) Reasonable restrictions to exercise political rights.

Under the Decision to participate this entails the need for one to recognize that they are entitled to that right and to exercise it on their own free will from an informed point of view. This includes the right to actively participate in forming or joining a political party, campaign for a political party's agenda and to recruit members to join the political party. This has to commence with the point of values and principles. Article 10 appreciates the national values and principles of governance to include patriotism, democracy, participation of the people and national unity.

Free, fair and Regular Elections based on universal suffrage and free expression of their will. Political rights have undergone its own evolution especially in the Kenya from mlolongo system to the secret ballot. These transitions have been demanded by the impact elections have exhibit from harassment, voter suppression, bribery, violence and even the fatal result is people dying. Free and fair elections comprises of;- (i) conducting the election by way of a secret ballot; (ii) free from violence, intimidation, improper influence or corruption; (iii) conducted by an independent body; (iv) transparent; and (v) administered in an impartial, neutral, efficient, accurate and accountable manner.