What is floor crossing?
This is sometimes called “defection”. We are not talking here about the sort of pre-election party hopping that is common in Kenya.
The focus is when a person is elected to Parliament on the ticket of a particular party but, parts way through the parliamentary term, leaves that party and either joins another or becomes an independent. Alternatively, a person elected as an independent decides to join a party while an MP (or senator).
In some countries there is no law to stop this happening. In some, a person who changes party must resign and face a fresh election if they want to remain an MP. In some, to leave a party and not resign one’s seat would be strongly disapproved of even if there is no law about it. In countries where voters vote for a party (for its list of candidates) rather than individual candidates, it is common for a member who leaves the party to have to leave the legislature, and the next person on the party list not to have got a seat already moves into the now vacant seat.
Is it a good or bad thing?
This is a horrendously complicated matter. Floor crossing can involve people leaving a ruling party to join the opposition, or leaving the opposition to join the government side.
It can involve people leaving for money or office, or because they genuinely disagree with their original party on policies or philosophy or practice.
It may take place in a country where parties are established and generally disciplined. Or in a country where parties are in the process of forming, or one where parties are pretty meaningless. Or it may be that people generally vote for the individual rather than just for the party.
It maybe that floor crossing is common –part of political culture – or very unusual.
So some people in some circumstances may view floor crossing as the expression of genuine political commitment and think that to prohibit it would be a violation of democracy and freedom of conscience and expression (a point that has led to anti-defection law in some countries being held unconstitutional).
Others may think of it as a betrayal of the trust of the electorate who voted mainly with party in mind. Or it may undermine efforts to develop a strong and effective party system. Or it may undermine democracy because this requires an effective opposition – but the opposition may all be bought off and persuaded to change sides.
It can also be viewed as – or often be supported by – a form of corruption.
Paradoxically, if many MPs move into the government party (perhaps even a party) it may end up weakening that party, by bringing divisions, rather than strengthening it. Oginga Odinga said that this happened to KANU, as John Kamau recently reminded us.
In Kenya
A lot of floor crossing took place early in Kenya’s history. KADU essentially merged with KANU – creating an effectively one-party state, which became so for a time even in law. They were of course welcomed by Jomo Kenyatta (and had been persuaded to join the KANU fold by Odinga).
But, when later Odinga formed the KPU and persuaded a number of MPs to join it, Jomo was less pleased, and got Parliament to amend the constitution. This was Kenya’s first anti-floor crossing legislation which said than any MP who resigned from a parliamentary party must resign his or her seat at the next ending of a parliamentary session.
This stayed in the Constitution (section 40) until 2010 and the new Constitution.
New Constitution
A somewhat similar provision is now in Article 103. Any member who resigns from their party or “is deemed [treated as having] to have resigned from the party” ceases to be an MP. Similarly if an independent candidate joins a political party.
Why is this there? There may have been an element of keeping what one was used to (several constitutional provisions seem to be there for largely this reason).
One objective was part of a significant theme in the constitution – trying to develop a solid, policy - and principle-based, and stable, party system.
There was also a strong desire to prevent the re-emergence of a one-party state –to prevent what had happened early in the post-independence period. To put it another way, there was a desire to keep an effective opposition, if possible.
The drafters wanted to avoid the situation where people were enticed to leave their party of election to join the government. (The limit on the number of Cabinet Secretaries was also partly intended to prevent the President buying support by making MPs ministers. That was particularly relevant when the system adopted in draft constitutions was a parliamentary one.)
“Deemed to have resigned” is new. The old constitution only talked of resigning. This would have made it more difficult to require MPs to leave the house – because they never resigned from their first party. Dismissing a member is not the same as their resigning.
Neither the old nor the new constitution prevented a person shifting allegiances if their whole party joined the other side (because they had not resigned from their party). Dissolution of the whole party would not be resignation. Indeed with the present emphasis on coalitions it would be hard to prevent this - though it does mean that a party may end up aligned with another that its voters deliberately rejected.
Why does the law not work?
So far no-one has been actually forced to leave a House or stand for a fresh election. A new court case will have been “mentioned” this week.
It is not easy to operationalise Article 103. People do not resign from parties – however much their behaviour indicated that they are supporting another. Indeed Article 103 is a major disincentive to resign, and could thus be viewed as encouraging dishonesty.
The floor crossing provision can otherwise be activated only if the person is “deemed to have resigned”. As the constitution requires, Parliament passed law on this. It covers things like forming or supporting another party, or promoting its ideology, interests or policies.
This law assumes that the matter is one for the MP’s first party – the affected party must give the members a fair hearing, and then inform the Registrar of Political Parties. Often parties don’t want to do this – they may fear that in a by-election they would lose, for example.
Should there not be a process for voters to initiate a process? After all the floor crossing prohibition is supposed to protect the interests of democracy, and of the public – not just of deserted parties. There is of course the recall process. But on this we have no law – the law that did exist having been declared unconstitutional.
Expelling members may not lead to their losing their seats. If a party expulsion is for some reason that does not amount to deemed resignation (for example for aggressive behaviour or dishonesty) it could not lead to a loss of seat. There are other ways to deal with unruly MPs – and a criminal conviction may lead to loss of seat.
And only the Registrar of Political Parties can take the next step.
If a party does not give the member a fair hearing their decision could be challenged. I would suggest that fair hearing should include indicating that the party is seeking the member’s loss of seat, not just expulsion or suspension from the party or other penalty.
In the case of Isaac Mwaura, a senator expelled by Jubilee, the High Court held that producing some evidence at the time of a hearing, not giving him enough time to defend himself against it was “an outright ambush” not a fair hearing.
This is another topic on which a national debate would be desirable. Is it right to be able to declare “deemed resignation” on the basis of a single vote or campaign meeting, for example? And should the matter be left to the parties or involve the people more?
