Of course people like to win. And it is entirely rationale to think that if you have things you want to achieve in a political role – like MP, Senator or MCA – you won’t be able to do them if you don’t even get elected.
But so often, it seems as though Kenyan politicians are not so much focused on what they will do in office, but what position they will hold, what benefits they will receive as individuals.
So before elections we see politicians abandoning existing alliances and relationships, calculating who is most likely to win so they stand the best chance of office. But while there has been some talk of policies — bottom-up economics being the most (if mysterious) prominent example — it does not generally seem to be policies that unite people in their allegiances.
And now, after the elections, we see more rather undignified abandonment of alliances (I am not sure I can say principles), even rats leaving what they think are sinking ships. People elected as independent candidates suddenly discover they are not really so independent after all, and whole political parties abandon alliances.
THE CONSTITUTION
In many ways, the Constitution focussed on ways in which an effective party system could be strengthened. The first constitution draft – by the Constitution of Kenya Review Commission – imagined parties that fostered democratic processes, mobilised public opinion and fostered national values and outlook, organised people with similar views and interests for political activities, helped to focus public opinion on government policies, hold the government accountable, and help maintain cohesion in government and discipline in public affairs.
Hardly any of this vision can be seen in today’s political parties.
The Constitution makers were also aware that parties could be oppressive, and that political activities should not be limited to parties. Although Kenya had ceased to be a one-party state in 1991, 10 years later you could not stand for political office except as a party candidate. That ended with the 2010 Constitution.
Among the provisions designed to support political parties, and the institution of independent candidates (and members), is a rule that says if, once elected, you leave your party and join another or, having joined as a non-party person you join a party, you lose your seat.
The idea is that if you want to make this change, you should go back to the people who voted for you on the basis that you belonged to a particular party, or no party, and allow them to decide if they still want you to represent them.
It is also influenced by memories of the one-party state. Kenya did not become by law a one party state until 1982. But for years, it had been effectively a one-party state because members did not stand up against Kanu, and very early on, Jomo Kenyatta had set out to destroy other parties.
NON-INDEPENDENT INDEPENDENTS
About 400 people stood as independent candidates for the 290 constituencies in the National Assembly (out of the total of 2,132). Only eight were elected. And already most of them seem to have been wooed by William Ruto to agree to support him.
Is this wrong?
It may be that those individuals were elected for their personal qualities and their constituents would have no difficulty accepting them whichever party, if any, they are aligned to.
But they did present themselves to the electorate as non-party people. As an independent member, they would be in a position to decide how to vote according to their consciences and their perceptions of national interest and that of their constituents.
If they have reached a deal presumably, this is no longer true. Almost certainly their constituents could have voted for a UDA candidate but did not; now they have an effectively UDA legislator.
There seems a risk that being elected as an independent just allows candidates to postpone a decision about what party they belong to, and gives them the chance once elected to bargain with parties for their support.
We have to remember that for some MPs and their constituents, the work of an MP is mainly conceived as related to the CDF. For them, it presumably hardly matters what party the MP belongs top. Of course the recent Supreme Court case has (rightly in my view) thrown doubt on the whole idea of the CDF in the Kenyan context.
In truth, the concept of an independent candidate and member is not really being used as the Constitution envisaged it.
And how about the law?
The Constitution (Article 103) says MPs lose their seats if, having been elected as independent candidates, they join a political party. No doubt they would argue first that they are not yet members because they have not yet been sworn in, and second that they are not actually joining a party – just supporting it.
But being a member of a party is a continuing process, and the practical effect of what these MPs have done is just what Article 103 is designed to prevent. And the Political Parties Act says a party member is to be treated as having left that party, if the member “promotes the ideology, interests or policies of another political party”.
On the same basis, should not an independent member who consistently does those things be treated as having ceased to be independent?
Unfortunately the procedure for this loss of seat is not clearly spelled out in law, especially for an independent member (who has no party to discipline him or her).
The member’s constituents could try to recall him or her using Article 104 — but again the procedure is not clear because the only law passed on the subject was declared unconstitutional in 2017 and has not been replaced. The right still exists, though.
COALITION HOPPING
The strange political animal a Coalition Political Party was created by amendments to the Political Parties Act very late in the campaigning day.
Parties of various sizes hopped into bed with a coalition. But now that that coalition appears to have lost the presidential election (a matter pending in the Supreme Court of course) various members of parties in that coalition party, and one whole party, seem to have left the original coalition and joined what they perceive to be the winning coalition.
For a party to leave one coalition and join another does not entail loss of any parliamentary seat. However, the new Act says that “A member of a coalition shall not be a member of another coalition.”
No consequence is specified for trying to evade this. Presumably, if a party has not done what is needed to leave one coalition, it cannot formally join another
But members of a party who as individuals join the other coalition by whatever means, or agree to support its policies and decisions, even though they have not yet been sworn in, are, like independent members-elect, violating at least the spirit of the Constitution and very probably its letter (that will be for the courts to decide).
Law aside, this is a depressing scenario, reminiscent of that in many countries soon after independence when MPs who turned out to be elected for the opposition would flood to the winning side.
The philosophy seems to be to make use of the connections one has but, once they no longer serve one’s ambitions, to abandon them.
It indicates a lack of interest in the role of elected legislator – regarding it as a stepping stone to another office or a bargaining chip for personal advantage.
And it weakens an important part of the political system and democratic process – the institution of an opposition.
Opposition MPs have critical constitutional roles, of scrutinising government’s policies and proposed laws, and holding government to account. They may be more effective in this than government MPs.
We haven’t had a real opposition since the 2018 Handshake. Shall we have one now?
It is all sad to contemplate on the eve of the 12th anniversary of the Constitution.
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