• The idea that the affairs of parties need to be governed by law is a relatively recent development in Kenya.
• Before the Political Parties Act, political parties were registered under and governed by the Societies Act.
Political parties and elections play an important role in the analysis of politics in developing countries. This is particularly in the analysis of democratisation, and specifically the consolidation of democratic political regimes.
Many democratic scholars argue that the existence of free and fair elections on a regular basis is considered the minimal condition for a democracy.
In Kenya, these elections happen every five years. However, they are not without any challenges and the last three presidential elections (2007, 2013 and 2017) have all been disputed – having been marred with mass rigging and irregularities.
A political party is defined as a political group that is officially recognised by law as being part of the electoral process and who can support candidates for elections (free or not) on a regular basis. In this way, political parties (party system) and elections are used as a measure of the consolidation of a society's democracy.
Political parties are thus central to democracy and in this regard, play several roles, including proposing or supporting candidates for national or county elections, with a view to forming or influencing the formation of the government.
In Kenya, parties are founded under the Political Parties Act of 2011. The Act emphasises that parties must have a national character and a democratically elected governing body, respect minorities and marginalised groups, and promote the Constitution and the rule of law. It also states that a party shall not be founded on religious, linguistic, racial, ethnic, gender or regional basis, nor shall it engage in corruption.
While the Act proscribes formation of parties along ethnic lines, this has not been the case in Kenya. It seems that this is only on paper as witnessed by activities of most parties and politicians.
Kenyan politics by nature is tribal and political parties are merely façades to power and most of them are disbanded after elections and usually formed by tribal kingpins. Even where coalitions are formed, they are normally formed along tribal lines.
In the run to 2013 elections two political coalitions were formed – the Coalition for Reform and Democracy with the former Prime Minister Raila Odinga as the presidential flag bearer and the Jubilee Alliance under the President Uhuru Kenyatta. It is worth noting that these coalitions were disbanded and metamorphosed into NASA and the Jubilee Party in the run to 2017 elections.
The idea that the affairs of parties need to be governed by law is a relatively recent development in Kenya. Before the Political Parties Act, political parties were registered under and governed by the Societies Act.
Political parties did not have legal personality or perpetual succession and they basically belonged to individuals and some unscrupulous party leaders formed parties with a view to selling them for monetary gain.
For instance, Mugambi Imanyara sold ODM to Raila Odinga in 2007. The party has since grown and has become the biggest party in the country. The Constitution embodies principles and values that seek to configure the governance and architecture of political parties.
Most importantly, the constitutional principles that inform the formation, management, and operation of political parties – values of human rights, equality, freedom, democracy, social justice and the rule of law.
However, even with the enactment of the Political Parties Act in 2011, our parties and politicians have still found ways to circumvent it and behave as if everything is normal. The Political Parties code of conduct acts to regulate the behaviour of members and office holders of political parties, aspiring candidates, candidates, and their supporters, promote good governance and eradicate political malpractices. It also prohibits members from engaging in influence peddling, bribery, or any other form of corruption. This has neither been the same among Kenya’s political parties nor among the politicians.
In the recent by-elections in Matungu, Kakamega Senator Cleopas Malala was captured on video with some money and was accused of voter bribery and violence.
However, the move to dewhip him as the Minority Whip in the Senate has been castigated by his party leader, Musalia Mudavadi of ANC.
In a press statement, Mudavadi accuses ODM of removing Senator Malala from his position because of his role (in defeating ODM’s candidate) in Matungu.
In a quick rejoinder, ODM secretary general Edwin Sifuna said at ‘for his "role in Matungu" Malala has been charged with robbery with violence, abduction, causing grievous harm and assault of an IEBC official among other crimes’.
This just points to the inefficacy of our parties and the electoral laws. It is worth noting that our elections are normally marred by violence and voter bribery.
Similarly, the Political Parties Act states that, a person shall not be a member of more than one political party at the same time. A person who, while being a member of a political party forms another political party, joins in the formation of another political party, joins another political party, in any way or manner, publicly advocates for the formation of another political party and promotes the ideology, interests or policies of another political party, shall, notwithstanding the provisions of subsection (1) or the provisions of any other written law, be deemed to have resigned from the previous political party. But these provisions are not followed to the letter in Kenya, right from the highest office in the land.
In 2020, ANC announced that they had expelled Malala on account of gross misconduct. The party stated that ‘the senator has been prejudicing the activities of the party and has been disloyal’.
Nevertheless, ANC then secretary general Barack Muluka, who communicated the decision to expel Malala has since left the party and joined Deputy President William Ruto in his new Party – the United Democratic Movement. This shows how weak parties are and clearly do not stand for any ideology.
In 2019, Malindi MP Aisha Jumwa was expelled from ODM for gross misconduct. Jumwa openly declared her support for DP Ruto and was accused of being disloyal to party leader Raila Odinga.
In 2020, the Jubilee Party removed from parliamentary leadership members who were accused of disloyalty to the party and the President. Elgeyo Marakwet Senator Kipchumba Murkomen and Nakuru Senator Susan Kihika were removed from their Senate Majority leader and Majority chief whip positions respectively and were replaced by leaders allied to and considered loyal to President Uhuru Kenyatta.
Similarly, Prof Kithure Kindiki was removed as the Deputy Speaker on similar grounds. In 2013, the late Mbita Senator and ODM stalwart, Otieno Kajwang’, maintained that fidelity and loyalty to the party were the number one consideration for anyone to hold any party positions and being the party’s candidate in any electoral post. In essence loyalty is like pregnancy, you either have it or not – you cannot be having it and lacking it at the same time.
Perhaps, the most glaring of all is the defiance by Ruto to clearly defy his party boss and the President. DP Ruto, who was elected on the Jubilee Party together with President Uhuru Kenyatta, has since gone rogue and is pushing his own agenda – the Hustler Movement, which the president has clearly shunned.
DP Ruto has led mass exodus of members from the Jubilee Party to UDA. These leaders have openly defied the president and Jubilee agenda and have openly rejected the constitutional amendments through the Building Bridges Initiative. It is, however, surprising to see that none of these leaders have resigned from the parties that sponsored them to parliament and seek a fresh mandate through the new party – UDM.
As stated above, it is required by law that if one is no longer a member of a political party that sponsored him or her to Parliament, they should resign and seek fresh mandate from the electorate on another party.
Perhaps, the current politicians can borrow a leaf from Raila, who in 1994 — following a rift between him and the then Saboti MP Michael Kijana Wamalwa over the leadership of Ford Kenya — resigned and joined little-known National Development Party. He used the outfit to contest in the subsequent by-election and recaptured his seat.
When elections involve the true competition of political parties based on their proposed policies and platforms, and not the popularity of individual political candidates or voting based on special interests, that consolidation of democracy is advanced.
This can be witnessed in the US for example where the two major political parties – the Republican Party and the Democratic Party have contributed to the consolidation of democracy in the US as they are formed along ideological lines unlike the ethnic parties we have in Kenya.
I believe that with time, Kenya’s parties will be based on ideologies rather than the ethnicity that currently characterises our parties. Once this is done, those in power will utilise the political party as a vehicle to propagate the regime's ideology among the citizenry and to create a base of political support, based on this ideology and not ethnicity.
The Registrar of Political Parties and other relevant government institutions also have a crucial role to play to ensure that our political parties and politicians adhere to the laws governing the formation and operation of political parties.
Al Hajj Amin is a lecturer