One of Kenya’s most influential scholars, the late Okoth Ogendo wrote an article against formalising customary arrangements for managing land. In the article, Formalising Informal Property Systems: The Problem of Land Rights Reform in Africa, he argues that the central thesis that until we move the poor to the formal sector where the rule of law operates, is false. He insists that undocumented and informal nature of traditional systems does not make it inferior and should not be changed.
This past week, I was drawn back to this article in a forum by the National Council of Churches of Kenya to reflect on the state of the nation.
My friend Cyprian Nyamwamu who led the discussion in that session made a point that we have informalised the formal. He made the point that tribe rules over the nation so that as opposed to formal decision making informal and subjective factors are what influence actions.
This discussion raised the issue as to which of the two arguments is plausible. Should we encourage informalisation or formalisation? In my view, the two arguments address different issues. One addresses the nature of traditional property rights, which has been captured by the recognition of community property rights. That is distinct from the argument on what ails the country. The latter is about a return to a focus on the rule of law as the basis of decision making as opposed to informal rules of the game, captured in such terms as ethnicity, deep State and elite capture.
Several examples demonstrate this informality approach. As demolitions have been going on, President Uhuru Kenyatta pointed out that we should be able to make decisions irrespective of whether one has a lot of money or not, or whether one is known to people in high offices.
The statements are an admission of the pervasive nature of informality in our governance.
As opposed to rule-based society we have become a society of might makes right, one of technical know-who and not technical know-how.
We have to remove informality. Doing so does not require complicated actions. First, we have to go back to being a value-based society. This requires dropping of shortcuts. By ingraining such attitudes and ethos on all citizens, there will be greater formal decision-making.
Currently there is a focus on rules. Whenever we are faced with a problem, we think the solution is to develop new rules. Unfortunately, in a system where rules are not adhered to, the making of rules on its own does not mean much. In fact, it may lull people into believing that something is happening. Having a deluge of laws for the sake of it is what the rule of law seeks to avoid.
As part of going back to the basics, the rules that exist should be applied equally and fairly. This builds confidence in the decisions that are made and improves governance.
We also need to ensure that our decision-making considers the interests and concerns of all segments of society, ranging from regions, communities, age-groups and gender.
We should not go back to an informal system of decision making. It is imperative to acknowledge that if you informalise the State and weaken it, you cannot have a strong and democratic society.
As we continue envisioning a new Kenya and designing strategies to recreate such a country, there must be a commitment to abide by decisions that we make and apply the rules that we develop. Both leadership and citizens must always be ready to avoid circumventing rules.
It will help to avoid the levels of impunity and despondency in the country since every citizen will know that there is equality before the law.
All members of society will know that to succeed in life you do not have to be a politician. All that is required is to work hard and honestly in whatever station you are in. That is the journey to more prosperous and equal society.