Most members of the National Assembly represent a constituency or a county. But 12 of them do not.
In 1958 —before independence — there were four Europeans, four Africans, and four Asians or Arabs (one Arab, one Asian Muslim and two non Muslims). They were called “specially elected members” – and were elected by the other members of the House.
Later the system was changed so that each party nominated members according to its proportion of constituency members, to “represent special interests” and “taking into account the principle of gender equality”. There were still 12 but were called “nominated members”.
By the almost final stages of the work of the Committee of Experts in early 2010 the draft constitution provided for enough extra members from party lists to ensure that overall in the House at least one third were women; at least five per cent persons with disabilities; and at least five per cent from marginalised communities, marginalised groups, the youth or workers.
MPs did not want this and restored what they were used to, including the phrase “nominated members”, although they were to be list members. They are still to represent “special interests” including the youth, persons with disabilities and workers.
For the Senate, the CoE proposed members to represent youth, persons with disabilities and workers, but the Parliamentary Select Committee removed these – however the CoE reinstated the first two, with specific numbers attached to them (two of each, and in each case one man and one woman).
At the county assembly level, the CoE proposal was retained. The Constitution and the law require that each party has a list of eight people, with at least two persons with disability, two youth and two marginalised groups (which means groups discriminated against in the past).
The CoE did not change what the PSC wanted for the National Assembly, fearing rejection of the whole constitution. The word “nominated” was retained for all these members – in the National Assembly, the Senate and the county assemblies.
WRONG WORD
The word “nominated” has obscured what is supposed to happen. The old nomination system involved parties putting forward names after they knew how many seats they had won in an election and thus how many of the 12 extra seat they were entitled to. The electorate had no say.
But now, the system is supposed to be very different. Each party is required by the Constitution and law to submit 45 days before the election lists of names of people who would become members of the National Assembly, Senate or County Assembly, if the party won enough constituency, county or ward seats.
That list is supposed to be public. Voters are supposed to know about the lists. And - if they really did not like a party’s choice of list candidates - maybe they might choose to vote for another party.
In reality, only a few major parties get any of these list or nominated seats. This time round, UDA has five of these members in the National Assembly and ODM has three. Three other parties have one each and one is held up by a court case. In the Senate, UDA has 10 seats, ODM seven and three other parties have one each.
I was wondering whether there was some way for people to be more involved in this process. Would it work, for example, if on the back of the ballot paper for MP were all the parties’ list members? On the front the ballot paper would say “your vote for a member is also a vote for that party’s list. Turn over the see the party lists.” And on the back they would be told that they could edit the list of the party for which they had just voted.
But it would not work.
First there would not be room on the back for all the party lists. Can you imagine people frantically searching for the list of the party for whose candidate they had just voted on the front? It would be time-consuming chaos.
But it is also legally impossible. The Constitution says the lists are “closed lists”. That does not mean they cannot be changed without a court order as Chebukati, and the regulations, say.
In the ordinary usage about elections, it means the voters cannot change them. In some countries, you can edit the list of a party – strike out the name of a person you do not want on the list, for example. That is an open list system. We do not have it.
12 NATIONAL ASSEMBLY MEMBERS — WHY?
Some lists are to get women into Parliament or county assemblies. Why? Because women are under-represented.
Others are about getting persons with disability, members of marginalised communities or youth into these legislative institutions For the same reason – they are under-represented.
Workers are only referred to once – for the National Assembly. This word has implications that simply do not resonate with Kenyans. It has political/ideological overtones.
In Uganda and Tanzania, it would be taken to mean those working for employers and probably exploited by them. [Cotu boss Francis] Atwoli speaks of workers meaning trade union members, I suspect. But other Kenyans probably think they are all workers. It was a mistake to use this word here.
When Article 97 says the 12 members must represent “special interests”, including the youth, persons with disabilities and workers – what does this really mean, especially what does “including” mean?
I believe it must be read as meanings other groups who tend to get excluded, especially not represented in Parliament, who would not be elected, and who are therefore rather voiceless.
Small farmers would be included, jua kali workers, and members of small ethnic groups. But it should not include business people, and professionals, or, perhaps, people who have got elected in the past.
ABUSE OF THE SYSTEM
Complaints have been about nepotism in forming the lists, about not including those for whom the system is intended (especially persons with disability), and changing the names after the lists are submitted.
I am focussing here mostly on the National Assembly. The IEBC has allowed parties to get away with a complete violation of the Constitution.
Four of the people so-called “nominated” to the National Assembly are, true, said to be “workers” But what does this mean? One I think is a retired teacher. Another is described in the media as a “renowned businessman”. One was an active MCA and is also “an authoritative football analyst for local media houses”. And the fourth was an MP in the last Parliament and chairperson of one of the main parties. None of them is surely in the voiceless class!
Two of them are just listed as “women”. But this category is not now intended to be for just any women – only for those who also fit the description of something like youth, worker or person with disability. It is shocking that there is only one person with disability among the 12.
By law, in each party’s list for the National Assembly the first four names must be of a youth representative, a person with disability, a worker and one other special interest. How then did ODM have 2 workers at the head of its list (even if they are really workers)? Or Narc Kenya no worker or person with disability in the top four of its list?
Worse has been when politicians have nominated their relatives. Raila Odinga’s brother in the 11th Parliament? What a disgrace. What special interest, inadequately represented in Parliament, did he represent? The Odinga family?
Basically the parties either do not understand the system – or do not want to understand it because it would interfere with their patronage system. And the IEBC similarly either does not understand it or does not enforce the law.
Unless Kenya can make this work as it was supposed to and not to enable cronies to get in unelected, its abolition would be my first choice for amending the constitution.