The Electoral System and Multi-Partyism in Kenya - Hanns

Transcription

The Electoral System
and
Multi-Partyism in Kenya
African Research and Resource Forum (ARRF)
Hanns
Seidel
Foundation
and
Multi-Partyism in Kenya
African Research and Resource Forum (ARRF)
Hanns
Seidel
Foundation
ISBN 9966 - 7062 - 4 - 0
copyright 2007
Contents
1.0. The Case for Electoral System Reform in Kenya
By Michael Chege
1
1.1 Introduction
1
1.2 Counting Progress
2
1.3 Half Century of Electoral Politics in Kenya
6
1.4 Generic Electoral System Types and their relevance
to Kenya
17
1.5 Comparing Electoral Reforms and Consolidation of
Democracy in Africa
21
1.6 A mixed Electoral System for Kenya
26
1.7 Conclusion
32
2.0 The Kenyan Electoral System
By ECK Vice Chairman, Mr. Gabriel Mukele
2.1 Introduction
35
35
2.2 History of the Kenyan Electoral Process
36
2.3 The electoral Commission Set up
38
2.4 The Electoral law of Kenya
39
2.5 The 2002 General Elections
46
2.6 Conclusion
48
3.0. The Electoral System and Mullti-partyism in Kenya
By Njeeri Kabeberi
49
3.1. The Electoral System 49
3.2. Multi-Party politics in Kenya
52
Foreword
Kenya, like many modern states of the world practices representative
democracy in which the sovereignty of the people is exercised through their
elected representatives. Since a representative democracy assigns significant
powers to the elected leaders, there are legitimate concerns about how the
leaders are chosen, the expanse of their jurisdiction, as well as their scope of
influence. This is why the electoral system is an extremely important aspect of
any democratic country. Simply put, it is the electoral system that dictates who
represents how many people and in what area or jurisdiction. An electoral system is essentially the method by which the votes of the electorate
are translated into seats in the national legislative body. The two most popular
electoral systems in the world today are the Single Member District (SMD)
and the various forms of Proportional Representation (PR). We also have the
two-round run off system of single member districts practiced mostly in the
Francophone African Countries.
Kenya is currently under the SMD, also called the First Past The Post (FPTP) system,
which is sometimes criticised for creating electoral districts (constituencies, as
they are called in Kenya) of unequal populations thus leading to disproportionate
regional representation at the national assembly. Another common criticism of
the SMD system is that it makes it possible for political parties to have a greater
proportion of the seats in parliament than their proportion of the vote. So that
it is possible for a party that enjoys say a 50% majority of the total vote to have
less than a 50% majority in parliament. This is however not to suggest that
other systems are not without shortcomings. Under Proportionate Representation (PR) for instance, it is difficult for the
electorate to hold individual legislators accountable because voters may
choose between alternative lists of many candidates who represent different
political parties without specific districts. This poses a unique problem in a
context like Kenya where legislators play a direct role in the development of
their constituencies.
iv
The Electoral Commission of Kenya
The challenge, therefore, is to discuss possible models of electoral system that
will address the problem of disproportionate representation while at the same
time avoiding the lack of accountability in the PR system.
Hanns Seidel Foundation cannot purport to have specific solutions to the
challenges facing the electoral system in Kenya today. It is neither in our interest
nor within our mandate to suggest specific solutions. However, Hanns Seidel
Foundation seeks to facilitate an open discussion about issues relevant to the
democratic development of Kenya.
This publication summarises the presentations and deliberations generated at
a workshop on the electoral system of Kenya jointly organised by the African
Research and Resource Forum (ARRF) and the Hanns Seidel Foundation.
This publication is intended to encourage the wider sharing of knowledge
and information, among the many individuals and institutions interested in
the subject. We hope that this publication will advance the discourse on the
subject, and prompt action aimed at the improvement of Kenya’s electoral
system to further strengthen the country’s democratisation. The content and
views contained in this publication reflect the opinion of the individual authors
and do not necessarily reflect the position of Hanns Seidel Foundation.
Dr. Wolf Krug
Resident Representative
Hanns Seidel Foundation
v
vi
1.0 The Case for Electoral System Reform in Kenya
Michael Chege
1.1 Introduction
W
hatever yardstick one uses, Kenya has made remarkable progress
towards democratic governance and the respect of civil liberties
compared to the dark days of the Kenya African National Union
(KANU) regime prior to 2003. This is also the case when Kenya’s development
is compared to most of her neighbours. There, however, is no reason for
complacency. That progress has brought major governance flaws into sharp
focus, notably the capacity to deal with new and old corruption, as well as the
monumental political challenges that have brought many African states to their
knees: management of ethnic demands (including regional autonomy), and
the mounting of national elections that bear the stamp of legitimacy. As Kenya
heads to the December 2007 elections, the debate on both issues has sprung
to the fore. According to the most recent theories of government, and given
an ethnically pluralistic society like Kenya, some of the proposals already on
the table - especially those based on majority decision rules (like referendums),
uniform devolution, and run-off elections - could worsen a grave political
situation. Consensual democracy, grand coalitions, inclusive power-sharing,
and proportional representation are infinitely better-suited.
This paper examines the contribution which one of these set of reforms electoral change towards a “Mixed” system combining single constituency with
a plurality victory (as at present), and Proportional Representation that caters
for currently unrepresented or under-represented groups. To have the desired
effect in responding to ethnic demands going back to half a century, these
changes need to be accompanied by a profound multiple devolution system
that allows regions or districts to opt for or against government from the centre
on key contentious issues that have remained unresolved since the 1960s.
Either way, its recommendations point towards a plurality of solutions, rather
than the uniformity and centralisation that have plagued both Kenya and other
African states since independence in the 1960s.
1.2 Counting Progress: Democratic Governance in Kenya since 2002
G
oing by most public opinion polls conducted in Kenya since the
December 2002, when KANU lost power for the first time in 40 years,
a vast majority of Kenyans indicate that they enjoy a greater scope
of political freedom than at any other time except the brief period immediately
after independence in 1963. According to the latest polls, only 7 per cent
of Kenyans surveyed in August 2006 state that Kenya is not a democracy,
compared to 76 per cent who think it is now a democracy to a “full” extent
(17 per cent), or a democracy experiencing “minor” or “serious” problems
(59 per cent). According to the national household survey conducted under
the African Peer Review Mechanism (APRM) of New Partnership of Africa’s
Development (NEPAD) in August 2005, Kenyans gave the highest approval
ratings to the prevalence of freedoms of worship, speech, travel, association
and assembly. This was confirmed by NEPAD’s external review panel of experts
in October 2005. The panel found that “democratic space had increased
remarkably during the previous two years….Political and civil rights are
exercised with considerable degree of freedom and few restrictions. The civil
society movement in Kenya engages the Government in a robust and fruitful
manner…In effect Kenya’s civil society movement continues expansion of the
political space”. All this is in line with what other independent observers of
trends in democratisation in Africa have concluded. Using a composite index
of civil and political freedoms, Freedom House in New York rates over 190
countries annually on a scale of 1-2.5 (“free), 3-5 (“partly free”), to 5.5-7 (“not
free”). Kenya’s rating fell from a tyrannical level of 6.5 in 1996 to 3 in 2006.
. Westminster Foundation for Democracy, “Using Multiparty Democracy in Kenya”, Nairobi, August 2006, p.
12. 17 per cent were not sure or refused to answer.
. Kenya NEPAD Secretariat, “Kenya National Self-Assessment Report of the APRM”, Nairobi: Ministry of
Planning and National Development, 2005.
. NEPAD, “APRM Country Review Report of the Republic of Kenya”, Midrand, South Africa: APRM
Secretariat, 2006. p.80
This places her among the 13 freest countries in Africa, much better than any
of her neighbours—Tanzania (3.5), Uganda (4.5), and Ethiopia (5.0). Kenya
is classified as the only “electoral democracy” in eastern Africa.
Credit for that dramatic change for the better goes to ordinary citizens,
committed professionals, and organised groups that confronted tyrannical rule
in all its manifestations from the 1960s to the darkest days in the 1990s, and
often paid a high price for it. Many non-Kenyans and foreign institutions made
significant contributions to that remarkable transition. The gains made need
to be consolidated. As Kenyans celebrate democratic progress, it would be
foolhardy to ignore the institutional deficiencies and governance challenges
facing the country, whose profile has been brought to sharper focus by political
openness in the wake of the transition. Some of these can be deduced from
polls and careful political analysis of events (like elections and referendums) and
stated aspirations of leaders and followers. The NEPAD external review cited
the danger of ethnic animosities following the November 2005 constitutional
referendum; economic inequalities between regions and between the rich
and poor; impunity from corruption and abuse of office; gender inequality;
and lack of a “transformative leadership”. In the polls, Kenyans continue to
express distrust and discontent with their elected legislators and to insist that
the Government should do more to rein in corruption by prosecuting past and
present offenders. Though hugely satisfied with the reforms introduced in the
education and health sectors - and to a lesser extent in prisons, agriculture
and public transport - Kenyans are overwhelmingly dissatisfied with the lack of
employment opportunities, insecurity, and low incomes despite the resumption
of economic growth in the last four years.
A democratic government embraces a continuous process of mutuallynegotiated political innovation to problems in the interest of higher social
ideals binding society together. These include security (the ultimate reason for
the state), safeguards against any violation of individual liberty, and access to
the essentials in life that make freedom meaningful -human rights, adequate
nutrition, health, education and shelter. Not surprisingly, contemporary political
debate in Kenya now centres on some of these issues: constitutional reforms that
ensure more equitable representation (of ethnic groups and women), devolution
of constitutional responsibilities to regions or districts, more equitable distribution
of income and employment opportunities (often tied to devolution), reduction of
executive power, more accountability of rulers, and wider representation in the
electoral commission and public service. Kenya is a culturally-pluralistic society.
It is characterised by sharp internal cleavages based on ethnic identity, language,
region of origin, race, culture and religion. At the heart of the reform debate in
Kenya lie two broad political sentiments: the desire for a more perfect democracy
and the resolution of deep-seated ethnic claims and grievances.
In addressing these problems, one constitutional innovation that could be a
useful tool in responding to these challenges is electoral reform. Electoral
systems define the manner in which the wishes of the voters are translated into
voter representation in the legislature and decision-making in government. In
all culturally-segmented societies, social group interests are expressed through
the ballot. In the most successful of that lot, innovations in electoral systems
have often been used to introduce national governance systems that meet the
challenges posed by ethnic and regional differences that Kenya faces. This
was the case in South Africa in the run-up to the 2004 elections that ended
apartheid, Northern Ireland following the Good Friday agreement of 1998,
Zimbabwe at independence in 1980, Mozambique in 1994, and Namibia
at the pre-independence elections of 1989. In all these cases, the choice
of the electoral system - the rules behind balloting, computation of winning
candidates, party representation in the legislature according to votes received
- was based on broad inclusiveness of groups that had previously been locked
in conflict. To cultivate a sense of security at community level, the success
of electoral reforms has been premised on complementary constitutional
innovations. These include power-sharing, grand coalition government,
minority veto, devolution and regional autonomy or fully-fledged federalism,
quotas in top appointments and affirmative action for groups that cannot
acquire representation in any other way.
Apart from a fleeting recommendation (in the constitutional debates in 2001) for
“mixed” electoral system - combining Proportional Representation (PR) with the
present first-past-the-post (FPTP) method - changes in Kenya’s election system
have never occupied centre stage in country’s governance reform agenda.
Two prominent scholars of government in Kenya have dealt with the issue of
electoral reforms in the country, simulating what the outcomes would be under
alternative voting systems. However, their findings and recommendations have
not caught as much public attention as they deserve. Focusing on whether
PR could have made a difference in party representation in the 1997 election,
Ndegwa concluded it could not have, while Barkan demonstrated that more
equitable constituency delimitation could have produced more representative
in opposition to the KANU government in the 1990s.
This paper takes it from where they left and hopes to advance the debate on
electoral reform in Kenya at a time when the momentum for constitutional
reform is again gaining strength. It begins with a summary of Kenya’s electoral
history and the lessons learned from it and proceeds to an abbreviated survey
of available options in electoral systems that the country might consider.
Given the country’s ethnically-segmented voting pattern, a reality that need
not be condemned outright, it comes out in favour of a “mixed” PR and FPTP
system, complemented by reforms involving power-sharing, grand coalition
governments, devolution and regional autonomy, and affirmative action for
the smallest groups that have been previously been denied representation.
In its most generic form, this is what Arend Lijphart refers to as consensus or
“consociational” democracy; the form best suited to countries like Kenya.
. Stephen N. Ndegwa, “The Relevance of Electoral Systems: A Simulation of the 1992 Kenyan Election”, Nairobi, Institute for Development Studies, University of Nairobi, 1997; Joel Barkan, Paul Densham, and Gerard Rushton, “Space Matters: Designing Better Electoral Systems for Emerging Democracies”, American
Journal of Political Science, October, 2006.
. Arend Lijphart, Democracy in Plural Societies (New Haven: Yale University Press, 1977)
1.3 Half a Century of Electoral Politics in Kenya, 1957-2007: Some Lessons of Experience
E
uropean settlers in the Kenya colony enjoyed universal franchise and
elected representation in the colonial Legislative Council since 1920
when they were allocated 11 seats. This replaced nominations to the
legislature by the Governor, which had been the practice since 1907. In
1920, electoral regulations were amended to permit the election of two Indian
members, a Muslim and a Hindu. Between 1920 and 1960, communal (racial)
seat allocations for Europeans, Asians and Arabs increased as the legislature
grew but official members (civil servants) remained a majority in the colonial
legislature until 1948. The first African nominated member of the Legislative
Council, Eliud Mathu, took his seat in the council in 1944. He was joined by
five others and this brought African representation to six out of 28 members by
1956. The Mau Mau rebellion in 1952 forced quick rethinking about African
representation in the Kenyan government by the Colonial Office in London. This
led to the first direct elections of African members to the Legislative Council on
a highly restrictive franchise in 1957. But once the door was opened, it proved
impossible to close. As McMillan’s “winds of change” swept the continent, it
was just a matter of time before a majority African legislature was conceded.
Under the Lyttelton Constitution of 1955, Walter Coutts - an administrator
with long experience in the colony - was commissioned to prepare a formula
for African representation in the Legislative Council through of direct election.
Coutts’ recommendations provided for a highly restricted franchise under
which African voters were required to meet at least three out of ten conditions on education, wealth, public or military service, business ownership, etc. - and
demonstrated loyalty to the government. Voters were allocated multiple votes,
no more than four, depending on the conditions they satisfied. The multiple
ballots could be cast for the same or for alternate contestants. Candidates
needed to meet voter and other conditions (language, education and income).
For the Kikuyu, Embu and Meru, both voter and candidate needed a “loyalist
certificate” demonstrating their disassociation with the Mau Mau movement.
There were eight seats at stake, one from each province, the then Northern
Frontier region having been excluded.
In March 1957, Africans in Kenya voted for the first time in history, albeit
in a limited franchise. The first eight elected representatives in the Legislative
Council, many of whom were to shape politics in independent Kenya, were:
Tom J. Mboya (Nairobi); Jaramogi Oginga Odinga (Central Nyanza); Masinde
Murilo (North Nyanza); Lawrence Oguda (South Nyanza); D.T. arap Moi (Rift
Valley); Bernard Mate (Central Province); J.N.Muimi (Akamba); and Ronald
Ngala (Coast). Once inside the legislature, the eight, under Mboya’s
leadership, fought for an additional six African elected seats to bring Africans
to parity with European legislators. This was conceded by the Lennox-Boyd
Constitution of 1957 which allowed six additional African constituencies that
were contested in 1958. This brought African representation in the Legislative
Council to 14, although they were still a minority. The situation never changed
until 1960.
Over time, these elections have been interpreted differently. Following Bennet
and Rosberg, Keith Kyle saw them as cutting edge of the rising tide of African
nationalism that could not be contained by the official attempts to formulate
a moderate “multi-racial” government. Indeed Kenya politics, after 1958,
were dominated by demands for majority rule on the basis of universal adult
franchise and the release of Jomo Kenyatta from prison. Others consider
those elections as the beginning of the installation of a compliant African petitbourgeoisie, or some variation thereof, which could be trusted to manage the
colonial economy in the future. Re-examining the 1957 election in Central
Kenya, for instance, Daniel Branch considers the elections to have marked “the
first triumph of the system” with the loyalists edging out Mau Mau adherents
and their leaders. These explanations are not necessarily incompatible;
being adopted into the system and pursuing a nationalist agenda can be done
. For the most detailed account of these elections see G.F. Engholm, “African Elections in Kenya, March 1957”,
in W.J.M. Mackenzie and Kenneth Robinson, eds., Five Elections in Africa (Oxford University Press, 1960).
Of the eight, only Mboya commanded a genuinely strong intra-ethnic constituency, precisely because it was
urban.
. The 1958 cohort was also to remain dominant in post-independence Kenya politics, by dint of their regional
following: J.J.M. Nyagah (Embu), Julius Gikonyo Kiano (Muranga and Kiambu); Taita Towett (Kipsigis);
. Keith Kyle, The Politics of Independent Kenya, (New York, St. Martins Press, 1999), pp.75-86; George Bennett
and Carl Rosberg, The Kenyatta Election, 1960-61 (London, Oxford University Press, 1961), pp.11-16.
. Daniel Branch, “Loyalists, Mau Mau and Elections in Kenya”, Africa Today”, Vol.53, No.2, 2006. See also
Colin Leys, Underdevelopment in Kenya: The Political Economy of Neo-Colonialism (Berkeley: University of
California Press, 1975), pp.43-52.
simultaneously. As can be seen by the access to power of the African National
Congress of South Africa (1994), Zimbabwe African National Union (1980),
and South West African Peoples Organisation in Namibia (1990), nationalist
parties and liberation movements that brought majority rule to Southern
Africa changed the racial texture of political representation substantially
while accommodating themselves to the economic and social institutions they
inherited. It all depends on how one understood nationalism and the political
mechanism that legislators and parties adopted in building it. In Kenyan
elections, allegiance to ethnic homeland was to gradually compete with that to
the wider national state. A mistake was made, and continues to be made, in
considering both incompatible in the face of evidence that electoral and other
formulas to accommodate both were available.
Nation-wide African political parties in Kenya were banned in 1953 following
the outbreak of the Mau Mau war. In 1955, the colonial government permitted
the formation of political parties based on administrative districts - except in
the Kikuyu, Embu and Meru region, which was still under the war regulations.
This was a strategy to pre-empt the spread of violent politics outside Central
Kenya. That, however, did not stop the Nairobi Peoples Convention Party,
under Tom Mboya in Nairobi, from pursuing a national agenda, in line with the
Ghana Peoples Convention Party. Most of the district parties were concerned
with local issues such as better access to government services, employment,
income opportunities, health and education. Within the colonial legislature,
African members eventually coalesced around two loose informal groups: the
Kenya Independence Movement (under Oginga Odinga, Gikonyo Kiano and
Tom Mboya) keen to promote African majority rule under a unitary state; and
a moderate multiracial Kenya National Group (including Masinde Murilo,
Ronald Ngala, and Daniel arap Moi) which favoured a slower pace to majority
rule and decentralised government as a safeguard for local ethnic interests,
and against “dictatorship”. As Daniel arap Moi, then head of the Baringo
District Independent Party, said in 1958, such a system was necessary “because
tribalism will live for at least another 50 years”10 As David Anderson has shown,
the fissure had already opened between advocates of a strong central authority
10. Quoted in Keith Kyle, Politics of the Independence of Kenya, p.77.
and those of a federalist (majimbo) state with substantive local autonomy for
ethnic homelands that was to become a defining characteristic of intra-African
politics in Kenya in the early 1960s, then again in the 1990s.11
In mid-1960 when nation-wide political parties were again allowed, the
advocates of majimbo (regional federalism) coalesced under the Kenya
African Democratic Union (KADU), while those of a strong central government
with equal citizen rights regardless of ethnic or regional origin regrouped under
the Kenya African National Union (KANU). Under the leadership of James
Gichuru, Oginga Odinga, Tom Mboya (and Kenyatta after 1961), KANU drew
its support primarily from Kikuyu and related communities in Central Kenya,
Luo (in Nyanza and all urban areas), Kamba, Kisii, part of Luhya, Kisii and Taita.
KADU appealed to the then predominantly pastoral communities (Kalenjin,
Maasai, Samburu, Pokot), Mijikenda at the Coast, and part of the Luhya.
This was out of suspicions of domination by the larger and more educated
groups and fears over loss of traditional lands, particularly to the Kikuyu. And
the problem lay not so much in the enduring tribal hostilities of the kind Moi
imagined in 1958 - Kenyans for the most part actually got on well across
ethnic lines, considering the chasms in culture and language. The problem
lay in opportunistic exploitation of those differences by leaders keen to build
an ethnic electoral base and institutional failure to adapt to ethnic interests as
expressed in electoral and party politics before and after independence.
The 1960, McCleod Constitution - in response to African demands in the
Legislative Council and an attempt to bring closure to Mau Mau after the
Hola massacre of 1959 - allowed an elected African majority in the Legislative
Council for the first time. Though roundly condemned by most conservative
European leaders, the electoral format envisaged for 1961 was a widely
acceptable compromise that combined a universal franchise with an African
elected majority (33 “open” seats out of 53), but also reserved 20 constituencies
for candidates from racial minorities: ten for Europeans, eight for Asians (split
between Muslims and non-Muslims), and two for the Arabs. Eligible voters
of any race resident in the 20 “reserved” constituencies were allowed to vote
11. David M. Anderson, “Yours in the Struggle for Majimbo”, Journal of Contemporary History, Vol.40, No.3, 2005.
for any of the candidates, but the had to primary elections restricted to the
racial minorities (Asian or Europeans) allocated the seat, to ensure the ballot
represented genuine community choice, not a candidates without popular
following in the racial groups but who could take the seats due to backing
from African nationalist parties. Two issues dominated the 1961 elections.
First, as Bennett and Rosberg observed, there was agitation for the release of
Jomo Kenyatta (then in detention at Maralal), hence “the Kenyatta election”.12
Secondly, voting patterns for the first time clearly reflected wholesale ethnic
preference for one party, rather than many parties with a following in one
ethnic group. Bennett and Rosberg referred to this as the phenomenon of
“one party tribes”. Thus KANU won a majority of the African seats (19 out of
33) to 11 of KADU. Three seats went to smaller ethnically-confined parties.
Another factor that Bennett and Rosberg’s study glossed over was the impact of
the first-past-the-post system. A number of high profile seats went to minority
candidates as a result of two contestants often in the same party: Nakuru
Town, Meru and North Nyanza. In addition, there was a discrepancy between
the percentage of votes received by parties and the number of seats won.
KANU took 67 per cent of the vote but only 57 of the “open” seats; this is the
phenomenon of “electoral disproportionality”. Both phenomena were to be
amplified as time went by.
The pre-independence elections in 1963 pitted KADU against KANU once
again, but this time with a difference. This time, special communal rolls
were replaced by universal suffrage in 112 single-member constituencies in
the House of Representatives, 38 Senate seats, and six regional assemblies.
As Sanger and Nottingham demonstrated, KANU had by this time acquired
superior organisational skills and funding from its pan-African connections.
This is what KADU lacked and was becoming increasingly disorganised. It
was unable to field candidates in all the 112 constituencies.13 The result
was a KANU landslide. After the dust settled, it took 68 seats out of 112 (60
per cent) in the House of Representatives, derived from 67 per cent of the
popular vote, and 20 of the 38 Senate seats. KADU took 32 seats in the
12. Bennett and Roberg, The Kenyatta Election, p.126.
13. Clyde Sanger and John Nottingham, “The Kenya General Election of 1963”, Journal of Modern African
Studies, Vol.2, No.1, 1964
10
House of Representatives, compared to eight of the African Peoples Party led
by Paul Ngei, which soon crossed the floor to join KANU. But although KANU
demonstrated more widespread national appeal than KADU, or than it had
in 1961, the country was split at regional assembly level, and even within
districts, on the basis of wholesale ethnic affiliation to one party. KADU took
control of three regions (Rift Valley, Coast and Western) in comparison to three
of KANU (Central, Eastern and Nyanza).14
Figure 1 below shows the regional distribution of party allegiance as of 1963.
Fig 1: Regional Voting Patterns in 1963
14.No elections took place in North Eastern Province due to a popular boycott in favour of annexation of the
region to Somalia.
11
Genuine competitive multiparty elections returned to Kenya in 1992. As a result
of the differences between radical and moderate factions within KANU, the
country was thrust into the “Little General Election” of 1966 that pitted the ruling
party against the Kenya Peoples Union (KPU) in 18 constituencies.15 Between the
election and its proscription in 1969, KPU faced official harassment and coercive
restrictions that ultimately reduced the base of its support to Luo-Nyanza. As in
most of post-independence Africa, competitive party politics gave way to onepart states soon after independence. In Kenya the process was gradual and,
by most authoritative accounts, single party rule in 1969 tolerated considerable
internal competition at election time until 1988. In the four intervening elections
- those of 1969, 1974, 1979, and 1983 - between 40 per cent (1983) and
65 per cent (1969) of the incumbents lost their seats. In a survey conducted
in 1974, Barkan reported that most voters rated their MPs on how well they
conveyed their views to the government and their capacity to obtain projects and
benefits for the constituency, confirming some of the conclusion arrived at by
Leys and Hyden about the 1969 election.16 This was confirmed for subsequent
elections under one-party rule by Throup and Hornsby.17 But as these authors
demonstrate, presidential authoritarianism and rigging were already creeping in,
culminating in the farcical “queuing” of voters behind candidates in 1988. At
this time, discontent with the authoritarian and corrupt ways of the KANU regime
was building up, heading for a showdown with the opposition in 1990.
The 1992 general elections, the result of the protracted campaign for multiparty
elections in the previous two years, have attracted consider analysis. The most
detailed is the volume by Throup and Hornsby, arguably the most detailed study of
a national election in Africa then.18 The regime’s opponents had split three ways,
and so in an election marred by officially-sanctioned ethnic violence, corruption
15. Cherry Gertzel, The Politics of Independent Kenya (Nairobi: East African Publishing House, 1970), pp??; and Susan Mueller, “Government and Opposition in Kenya”, Journal of Modern African Studies, Vol. 22, No. No.3, 1984.
16.Joel Barkan,“Legislators, Elections, Political Linkage”, in Joel Barkan and John Okumu, eds., Politics and Public Policy in Kenya and Tanzania (New York: Praeger, 1979); Goran Hyden and Colin Leys, Elections and Politics in Single Party Systems: The Case of Kenya and Tanzania”, British Journal of Political Science, Vol.2, No 4, 1972.
17.David Throup, “Elections and Political Legitimacy in Kenya”, Africa, Vol.63, No.3, 1993; Charles Hornsby and David Throup, “Elections and Political Change in Kenya”, Journal of Commonwealth and Comparative
Politics, Vol. 32, No, 2, 1992.
18. David Throup and Charles Hornsby, Multiparty Politics in Kenya (Oxford: James Currey, 1998).
12
and intimidation, “KANU won a decisive victory based on a vote of less than
one third of the country. This was partly as a result of the incompetence of the
opposition, partly because of their willingness to bribe, threaten and cheat their
way to victory, and partly because the Government continued to represent the
interests of key less developed communities in the country, whose loyalty they were
able to retain.”19 In the parliamentary poll, KANU won 53 per cent of the seats
with only 30 per cent of the vote. This was courtesy of constituency delimitation
that favoured the less-populated KANU-supporting areas (previously supportive
of KADU) and the impact of first-past-the-post system in an election with many
parties. Cowen and Kanyinga say by this time, it was safe to conclude that KADU
had resurrected itself in the guise of KANU, while communities supportive of
KANU in 1963 had split their votes into the three opposition parties: Ford-Kenya,
Ford-Asili, and the Democratic Party. Figure 2 reflects the regional distribution of
party support, which also bears this out.20
Figure 2: Regional Distribution of Party Support, 1992
19. Throup and Hornsby, Multiparty Politics in Kenya..p.526.
20. Michael Cowen and Karuti Kanyinga,“The 1997 Elections in Kenya: The Politics of Community and Locality”, in Michael Cowen and Liisa Laakso (eds.,) Multi-party Elections in Africa (Oxford, James Currey, 2002), p.132.
13
The 1997 elections largely followed the contours of the 1992 elections
although there were some notable exceptions. Although Moi took a slightly
higher plurality in the presidential poll (40 per cent), his KANU party won
only 51 per cent of the parliamentary seats (108 out of 210). This made his
government vulnerable to defeat via a motion of no-confidence, should it lose
the support of a few MPs. Indeed as Grignon, Mazrui, and Rutten point out, the
election was actually won by the combined opposition. Three seats - Westlands,
Changamwe, and Kitui West—were won by KANU “out of the count” by ballotstuffing.21 This made it necessary for KANU to bring the National Development
Party (NDP) of Raila Odinga (with its 21 seats) into an informal alliance with the
Government even though NDP was to sit in the Opposition benches.
Academic and popular explanations of the two elections see Kenyan politics in
highly pessimistic terms. This position is largely justified by the continuity of a
tyrannical government despite the repeated elections, the continued split of the
Opposition on basis of self-interest of party leaders, a culture of self-destructive
ethnic inclusiveness among the voters, an amoral political leadership in all
parties, and, above all, susceptibility of the public to political violence, bribery
and corruption. The 1997 election has been covered in great detail and
by more authors than that of 1992.22 This is true whether one is referring
to national presidential elections, patterns of voting in ethnic homelands,
urban areas or key constituencies. The greatest strength of this literature, and
that of the databanks and analysis provided by the Institute for Education in
Democracy and similar institutions, is its empirical contribution. It has given
Kenya possibly the most detailed data on elections electoral behaviour at
21. Francois Grignon, Alamin Mazrui and Marcel Rutten, “Conclusion”, in Rutten, Mazrui and Grignon, Out of
the Count: The 1997 General Elections and Prospects for Democracy in Kenya (Kampala: Fountain Publishers,
2001), p.594.
22. See the essays in Marcel Rutten, Al Amin Mazrui, and Francois Grignon, (eds.,) Out of the Count:The 1997
Elections and the Prospects for Democracy in Kenya (Kampala: Fountain Publishers, 2001; Ludeki Chweya,
(ed.,), Electoral Politics in Kenya (Nairobi: Claripress, 2002); Smokin Wanjala, S. Kichamu Akivaga,
and Kivutatha Kibwana, (eds.,) Yearning for Democrcay: Kenya at the Dawn of a New Century (Nairobi:
Claripress, 2002). Also consult A. Tostensen, B.A. Andreassen, and K. Tronvoll, Kenya’s Hobbled Democracy
Revisited: The 1997 General Elections in Retrospect and Prospects (Oslo: Norwegian Institute of Human
Rights, University of Oslo, 1998). Rigging and state-engineered violence as an electoral strategy is dealt with
by J.Klopp, “Ethnic Clashes and Winning Elections in Kenya”, Canadian Journal of African Studies, 2001; Rok
Ajulu, “Kenya’s Democratic Experiment”, Review of African Political Economy, 1998; and Stephen Brown,
“Quiet Diplomacy and Recurring Ethnic Clashes in Kenya”, in Chandra Sriram and Karen Wermester, (eds.,),
From Promise to Practice: Strengthening UN Capacity for Prevention of Violent Conflict (Boulder, CO: Lynne
Reinner, 2003).
14
national and constituency level in Africa. It has also documented the systemic
weaknesses inherent in Kenya politics and society, which made it possible for
an authoritarian government presiding over catastrophic economic conditions
to hang onto power for so long.
But it has not engaged theories of governance reform directly relevant to the
intractable political problems that it highlights, thereby pointing out some tested
remedies in similar circumstances. It has often taken recourse in a wholesale
moral and cultural regeneration agenda that is also deemed a long shot.
For that reason, it is saturated by an all-pervading pessimism that could not
have anticipated the events of 2002 and the qualified positive changes that
we have identified. Part of the literature considered successful reforms nearimpossible given the perverse and corrupted political culture, ultimately based
on endless “tribal” calculations, rather than national interest. Looking at the
situation in 1997, for instance, Fox judged the future of multiparty politics in
Kenya bleak.23 To Throup and Hornsby, even a participatory Kenyatta-era one
party state would have been preferable to the “the primacy of ethnicity over
ideology…communal solidarity and internal divisions…and lack of political
principle within the Kenyan elite” that characterised the 1992 elections.24
To Chweya, electoral democracy in Africa of the 1990s “was on the verge
of failure” because it was Western implant on African cultural and political
soil that had failed to blend traditional and post-colonial traditions.25 More
importantly, Walter Oyugi saw a law of ethnic (“tribal”) determinism at play in
Kenya politics going back to the 1963 elections, about which Kenyans seemed
to be in perpetual denial.26 To make democratic progress, this tradition and
factors that produce it - like inequalities in resource distribution by the State
- needed to be “tamed” but it was not made clear by whom and how.
23. Ron Fox, “Bleak Future for Multiparty Politics in Kenya”, Journal of Modern African Studies, Vol.43, No.3,
1998.
24.Throup and Hornsby, Multiparty Politics in Kenya, p.590-91.
25. Chweya, “Western Modernity, African Idigenem and Political Order: Interrogating the Liberal Democratic
Orthodoxy”, in Chweya, Electoral Politics in Kenya, p.26.
26. Walter O. Oyugi, “Ethnic Relations and the Democratisation Process in Kenya, 1990-1997”, in Walter O.
Oyugi, ed., Ethnicity and Democratisation in Africa (Dakar, Codesria Books, ???); and “Ethnicity in the
Electoral Process: The 1992 General Elections in Kenya”, African Journal of Political Science, Vol.2, No.1,
1997.
15
This is where institutional innovation through electoral and complementary
constitutional reforms comes in. To start with, the most respected findings on
the problem in Africa demonstrates that far from being a concretely-fixed and
predictable quantity, ethnic identities are forever in flux depending on the situation
and the issues at stake, making unitary tribes “an illusion”.27 Like in other parts of
the world, the motivation and goals behind ethnic mobilisation are fabricated by
“cultural entrepreneurs” not always with malicious intent. Such movements can
be politically constructive even benign, while in other circumstances it can be a
lethal weapon aimed at one group - as demonstrated by the Rwanda genocide in
1994, and the tribal clashes in Kenya in the 1990s. At every competitive election
since 1960, negative ethnic mobilisation has been called in to buffet the voter
base, subjecting cultural “outsiders” to violence. In the hands of reckless leaders,
friend and foe are defined by convenience, which is why some of the recent
studies on electoral politics in Kenya reveal ethnic political loyalties over time.
Since “cultural pluralism” (to give it the right term), is a defining characteristic
of Kenya society, it would be impossible to banish any appeal to it at election
time without eliminating free speech and freedom of association altogether. The
challenge lies in tolerating it, while snuffing out its lethal dimension.
This is the dilemma that James Madison dealt with in Federalist Paper Number
10. Writing about the potential and danger of “faction” in a democracy, he
concluded that rather than seek to extinguish it (and with it freedom), it is better
to accord it toleration in a republic enjoying a wider “size and variety” of political
institutions, not sameness of opinion. It sounds contradictory as do most valuable
ideas from the Age of Reason (including Adam Smith’s derivation of greater
public good from toleration of private pursuits) but it is a more realistic solution
to Kenya’s problems than idealistic appeals to a uniform nationalism. Equal
political rights must then be accorded to self-defined constituent communities
as much as to individuals, as long as this is does not violate the rights of others.
That is best done through a culture of tolerance and accommodation, powersharing, devolution (and federalism in particular), and electoral systems that
widen representation, in “constant consociational bargaining”.28 One thing is for
27. See for one Crawford Young, The Politics of Cultural Pluralism, (Madsion, WI.: University of Wisconsin
Press, 1976). Pp.34-65.
28. Young, Politics of Cultural Pluralism, p.527.
16
sure, policies and electoral systems that contain “winner-take-all” and “majority
always prevails” as ruling principles are ill-suited to competitive culturally
pluralistic societies like Kenya. Political scientists and Kenyan election observers
may be right in blaming the country’s “tribalistic” and opportunistic politicians,
and their unquestioning ethnic followers, but a first-past-the-post system electoral
system in a highly centralised State such as Kenya, is probably an even greater
culprit. That is why the electoral system and some parallel constitutional reforms
deserve a closer look. In this respect, the electoral and institutional framework
most suitable for Kenya would be similar to that of post-apartheid South Africa,
India, Switzerland, Austria and Belgium, rather than the UK or France - which
have dominated the electoral models operating in their former African colonies.
1.4 Generic Electoral System Types and their
Relevance to Kenya
I
n a 2005 study entitled Electoral System Design, by the International Institute
for Democracy and Electoral Assistance (IDEA), the authors commence their
analysis by stating that “the choice of electoral systems is one of the most
important institutional decisions for any democracy. In almost all cases, the choice
of a particular electoral system has a profound effect on the future political life of
the country concerned”.29 This statement is borne out by historical observations
of democratic governance in action, and the role that electoral systems play in the
process. In one of the most notable scholarly studies on the subject many years
ago, Douglas Rae observed that different electoral systems affect the nature of
party systems that emerged in a country, and the degree to which voters’ wishes
in representation are reflected in the legislature and ultimately the government.30
Electoral systems could help engineer national politics. At the same time, Rae
noted that all electoral systems have some effects in common: they seldom
produce a legislature representation that fully accords with the proportions of
votes cast for each party; they lead to under-representation of smaller parties in
parliament; and they tend to “manufacture” majorities in legislatures that do not
accord to the voter preferences at election time. In addition, studies on electoral
systems indicate that having selected one pattern of voting and deciding on
29. Andrew Reynolds, Ben Reilly and Andrew Ellis, Electoral Systems Design: The New International IDEA
(Stockholm, International IDEA, 2005) p.1
30. Douglas W. Rae, The Political Consequences of Electoral Laws (New Haven, Yale University Press, 1967)
17
winners, countries find it extremely hard to switch to another system. This, as we
shall see, is also true of African states.
Electoral systems fall under two large families: (i) the “Plurality and Majority” cluster of
rules under which winners are decided on the basis of which candidate among many
contestants in a single member constituency receives the most votes (a plurality),
or a majority (at least 50 per cent) of the total valid ballots cast; (ii) “Proportional
Representation” (PR) which attempts to make the proportion of the votes cast for parties
as close as possible to their representation in the legislature. There is a third cluster of
electoral systems, which is usually referred to as “Mixed”. It combines characteristics
of the two main ones. In practice, democratic countries increasingly reflect diversity
between plurality/majority systems, PR, and mixed systems in legislative elections.
This diversity is also marked in presidential and local government elections. Table
I below summarises the three families of electoral systems, against examples of the
most distinguished country practitioners as of 2005.
Table I
Main Categories of Electoral Systems
18
Family
Sub-sets
Examples
Plurality/Majority
: First-Past-the-Post
: Two-Round System
: Alternative Vote
: Block Vote
Britain
France
Australia
Mauritius
Proportion/
Representation
: List PR
: Single Transferable Vote
South Africa
Ireland
Mixed
: Parallel Plurality/PR
: Mixed-Member PR
Japan
Germany
1.4.1 Plurality and Majority Systems
The most distinguishing characteristic of the British and US “first-past-the-post”
(FPTP) system is the single-member constituency in which winning candidates
are those who receive most of the votes, but not necessarily the majority.
FPTP has the attraction of simplicity, strong accountability of legislators to a
geographically-defined constituency, and a tendency to strengthen the twoparty system. It is however criticised for short-changing the smaller parties in
parliamentary representation and for inadequate representation of women. In
countries like France, the two-round system requires run offs among leading
candidates in cases where none of them receives an outright majority the first
time. In the run-offs the weakest candidates are excluded and a plurality can
be used to declare a winner. African countries have largely taken the cue from
Britain or France, adopting either FPTP or run-offs.
In yet another variant of majoritanian voting systems, under the Alternative Vote
(as in Australia) voters are required to indicate their preference for candidates
in descending order (from first, second, third to the last). The outright winning
candidates are those who receive an absolute majority in the first round. Should
no candidate achieve that, the candidate with the lowest amount of numberone preferences is then dropped, and his or her votes then distributed to the
candidates shown as the second choice in his or her ballots, a redistribution
process that continues until an overall winner with a majority is identified. The
alternative vote has been applied in Ireland’s presidential elections, but not
in any African state so far. Block vote is another but less popular subset of
the plurality/majority electoral systems. Voters in multi-member constituencies
choose between parties, each of which fronts an agreed number of candidates.
As under FPTP, the party with the most votes takes all the districts seats.
This system has been applied in Mauritius, Singapore, Chad, Senegal and
Cameroon.
1.4.2 Proportional Representation
Under Proportional Representation family, the most common subset is “List PR”.
There are some differences within List PR but it has fundamental characteristics.
19
The contesting political parties nominate lists of candidates in order of priority
for each (multi-member) district. Constituency ballots are then cast for parties
and the seats allocated parties in proportion to the votes that they receive out
of the total. South Africa has used this system since 1994, and it is a living
example of how user-friendly List PR can be for deeply fragment societies, when
combined with matching constitutional reforms under good leadership. An
increasing number of African states have opted for List PR since the 1980s,
making it one of the most popular electoral systems in the region. Advocates
of PR defend it not just on the basis of proportional representation of voter
wishes, but also on the basis of opening up access to minority parties, ethnic
inclusiveness, and provision of more seats to women. This, as we have seen,
is of special concern to democracies in Africa. PR is, however, criticised for
producing coalition governments of convenience. They tend to be unstable
and are prone to ransom behaviour by extremist parties at either left or right.
In addition, legislators cannot be held strictly accountable to constituency
development as under FPTP.
Under the Single Transferable Vote (STV) of the PR family, voters rank candidates
-rather than parties as in List PR -in multi-member constituencies, in a pattern
akin to the Alternative Vote (AV) System. However, the formula for determining
the winning candidates differs significantly from the majority-based AV pattern.
Computation involves both re-arranging votes of the top and the lowest voterecipients. First, a quota of votes out of the total that each winning candidate
should have is determined; usually as percentage share of total ballots cast,
divided by the number of seats in the district. For outright winners, any
surplus ballots above the quota are then allocated to candidates listed as the
second preference. Next, the weakest candidates are eliminated and their
votes distributed to the second voter preference. The process continues until
all qualified candidates meet the quota threshold. STV is praised for meeting
both party and candidate preferences of the voter, but low familiarity of its
complicated computation system has restricted its popularity to a few countries
- Ireland, Malta, and the Australian Federal Senate. For that reason, STV
would be a hard sell in Africa, and no country is presently applying it there.
20
1.4.3 Mixed Electoral Systems
The subset of Mixed Member Proportional representation combines aspects
of PR with those of plurality/majority systems in the electoral process. The
“Parallel” PR and plurality majority sub-system was used by 21 countries in
2005 - including Japan, Thailand, Lithuania, and South Korea. Voters cast
two separate ballots, one indicating party list choice under the PR system, and
another a preferred constituency candidate under a plurality or majoritarian
formula. Outcome in one does not affect the other. In Africa, Guinea-Conakry
and Seychelles use the FPTP alongside PR.
In other countries, the two systems are integrated, as is the case in Germany,
Italy, Hungary and Mexico. In principle, one round of ballots is cast for
candidates on a plurality/majority basis and then PR seats (amounting to a
certain percentage of total seats in the legislature), are then allocated on a
PR formula determined by party strength as reflected by votes each received.
In some cases, parties are compensated for votes “lost” under the plurality or
majority ballot. The percentage of seats allocated under the PR formula in
mixed systems varies. In Germany, it is 50 per cent of the legislature. In Italy
it is 25 per cent, 40 per cent in Mexico, and 55 per cent in New Zealand.
Lesotho uses the Mixed Member Proportional sub-set and allocates 33 per
cent of its legislative seats under PR criteria, and the balance under FPTP.
1.5 Comparing Electoral Reforms and Consolidation of Democracy in Africa: 1985-2005
A
t independence, African countries inherited the electoral systems of the
departing colonial powers: FPTP for most of Britain’s former dependencies
in the continent, and a majoritarian formula with run-off in the former
French colonies. Between the 1960s and the post 1989 democratic phase,
there has been considerable mutation and innovation. Table II below indicates
the systems adopted by 45 countries stood by 2004.
21
Table II
Breakdown of African Countries by Electoral System of National Legislature:
2004
FPTP
Plurality/Majority
PR
Mixed
Botswana
Cameroon
Algeria
Guinea (C)
Ethiopia
Central Afr. Rep
Angola
Lesotho
Gambia
Chad
Benin
Senegal
Ghana
Congo-Brazzaville
Burkina Fasso
Seychelles
Burundi
Tunisia
Kenya
Malawi
Cote d’Ivoire
Cape Verde
Nigeria
Djibouti
Sudan
Egypt
Guinea (B)
Swaziland
Gabon
Morocco
Tanzania
Madagascar
Mozambique
Uganda
Mali/Mauritania
Namibia
Zambia
Mauritius
Niger
Zimbabwe
Togo
Rwanda
Sao Tome
Sierra Leone
South Africa
TOTAL
13
13
15
5
Source: Andrew Reynolds, et. al., Electoral Systems Design: New International IDEA
Handbook (Stockholm, International IDEA 2005) pp.166-73.
22
As is evident from Table II, the most popular electoral system in Africa is
Proportional Representation in its Party List format. Fifteen of the 45 African
countries surveyed by the International IDEA study of 2005 had adopted it.
Some of the countries pursuing a PR Party List electoral formula did so out
of choice: Morocco, Burkina Fasso, Cape Verde and Sao Tome. This is a
result of deliberative democracy in the quest for a better system. But in a
considerable number of countries in that category, PR had been adopted as
part of the political bargain to bring more political inclusiveness in countries
emerging from deep-seated internal conflict based on, among other things,
internal social and cultural cleavages. As we have seen, this was prominently
the case in South Africa after apartheid, but also in Burundi, Sierra Leone,
Mozambique, Rwanda, and Algeria after prolonged civil conflict. Lesotho’s
adoption of Mixed System must also be understood as part of her quest for a
more inclusive and stable national politics. All this attests to the properties of
PR as a conflict resolution mechanism in highly polarised societies.
Another point worth noting is that 10 of the 15 states in this category have
populations of less than 12 million. Whether large populations with complex
diversity make it more difficult to adopt reforms in the PR direction is an issue
worth exploring. That countries that have adopted a Mixed System tend also
to be comparatively small in size may or may not have anything to do with this
observation, but it is worth observing that other than South Africa, Angola,
Morocco, and Mozambique are the only African states with populations
exceeding 12 million that have adopted PR.
There is another story writ large in Table II as well. This one concerns the
durability of electoral system types inherited from Africa’s colonial past. Of
the 13 countries that elect their national legislatures on a UK-style FPTP,
only Ethiopia was not a British colony. The rest were. Of the 13 countries
still electing parliamentary delegates under a French style Plurality/Majority
system, (with some appropriate local modification) only Egypt was not a French
colony. Most of Africa’s population is located in this set of countries -FPTP
and the French majoritarian system. This means that the majority of African
voters continue to elect their representatives on the basis of electoral rules and
23
regulations that the countries inherited from their former colonial masters in the
1960s. In short, if Party List PR has become the most popular electoral system
among African governments, FPTP and majority run-offs still has the numbers
of voters on its side because the largest and most problematic countries in
the region are still dedicated to it. These countries are the centre of gravity
of African politics. Considering the impact of electoral systems on national
politics as discussed earlier, it makes eminent sense for those interested in
consolidating democracy in Africa to re-examine the prospects of electoral
reforms in these countries further.
This brings us to a comparative analysis of democratic consolidation between
the PR Party List and Mixed System set of countries and that of countries that
have stuck to the electoral systems of the 1960s. Given the characteristics
of wide cultural diversity that we observed in the first part of this paper, it
is observed that already the largest single category of electoral systems in
Africa today is PR, particularly in the Party List format. Even the five African
states that now combine PR with FPTP (Guinea (C), Seychelles, and Lesotho),
or with the Party Block Vote (Senegal and Tunisia), elements of party lists can
still be found.
Compared to the countries that have moved towards PR or mixed it with another
system, states holding on to the older systems have been less proactive in using
constitutional processes and electoral reforms as tools of conflict resolution.
Reformers appreciate the potential in these devices, and there have been
examples of success derived from that conviction. In line with the criticism
levelled against PR, it cannot be claimed that African PR and mixed systems
have been vulnerable to the weaknesses generally associated with those reforms
- unstable coalition governments, reckless behaviour of extremist parties - than
countries still on the older electoral formulas. There is plenty of evidence to the
contrary. Low political accountability of legislators to voters in PR and related
systems has been a recurring concern in South Africa and Senegal. But on
the whole, it is worth noting other aspects apart from the political stabilisation
value of PR and Mixed electoral systems.
24
It would also appear, even though this is subject to confirmation, that democratic
consolidation has advanced faster among electoral innovators than among
conservatives. Of the 11 countries falling under Freedom House’s “Free”
(1-25) classification in 2006, 7 of them—South Africa, Cape Verde, Benin,
Namibia, Sao Tome, Lesotho, and Senegal—have either changed to PR or
PR in combination with another system. In fact 35 per cent of the countries in
this electoral reform category have a ‘Free” classification. Other factors have
no doubt been brought to play in making that remarkable transition possible,
including statecraft, leadership and appropriate governance structures in the
three branches of government. Electoral reforms alone are not sufficient.
But it would be safe to conclude that electoral reforms, in partnership with
other institutional changes, have made an important contribution to that
achievement. What we now need are more detailed analyses to ascertain the
extent to which electoral reforms have served as a catalyst for the transition
to more democratic rule in Africa.
In that process, it will become imperative to undertake closer comparison of
the progress in democratic consolidation made by countries that have made
innovations with PR or mixed systems with those that have refrained from doing
so. In the category of 13 states that have remained faithful to TPFP, for instance,
only Botswana and Ghana had reached “Free” status (1-2.5 rating) according
to Freedom House in 2006, with “Partly Free” Kenya (3.0) and Tanzania (3.5)
being the ones closest to that classification. Indeed some of the poorest
democratic governance ratings in the continent are to be found in this FPTP
category of states—Sudan, Swaziland, and Zimbabwe. A poor democratic
governance record could not and should not be attributed to the electoral
system. The fact that the electoral law books have not been honoured in spirit
may actually be part of the problem. But at the same time, latent political fears
sparked by a winner-take-all polling system in deeply fractured societies are
part of the reason behind the reluctance to reform. To the extent that electoral
reforms towards more inclusive systems have served to ease transition to more
stable and democratic system elsewhere, it would be advisable to study how
electoral reforms could help states with low democratisation ratings, and which
still hold onto the FPTP electoral formula.
25
Moving to the 13 African countries that elect national legislatures on the
basis of French-style Plurality/Majority systems, only two countries (Mali and
Mauritius) were accorded “Free” status by Freedom House in 2006. The
ratio of “Free” states to other states in this category is therefore equal to
that of the FPTP category, and proportion in both systems (15 per cent) is
lower than the one we observed under the group of innovators practising
PR or Mixed system (35 per cent). Again, only part of the explanation might
be found in the consequences of the electoral system these countries have
adopted. The reasons why the worst-rated countries in this category (like
Chad, Cote d’Ivoire, Congo-Brazzaville, Gabon and Togo) are where they
are in the international democracy league certainly go beyond the electoral
systems they have embraced. But as in the low-scoring cases under FPTP,
overall reforms in this category too should not leave out changes in the
electoral system.
1.6 A Mixed Electoral System for Kenya
A
s we saw in our review of Kenya’s experience with electoral politics, even
under one-party rule until 1988, voters greatly value representatives who
are diligent about their constituency responsibilities while consistently
conveying voter demands to the Government. These are the reasons behind
the high turnover rates at election time. To the extent that one wants to
consolidate the gains made by democratic governance in Kenya so far, it
would be prudent to maintain single member constituencies in the interests
of enhanced accountability of the legislator to the voter. Whether this should
continue to be done on the basis of first-past-the-post or a run-off system
is an issue that deserves close inspection, bearing in mind that in polarised
multi-ethnic constituencies (like most urban areas), second-round polls tend to
enhance reaching out more than simple majorities.
Having made the case for the continuation of single member constituencies,
it is also necessary to examine what complementary electoral mechanism
are required to meet the other challenge facing Kenya’s national politics:
inadequate representation of women, cultural, ethnic, racial and religious
minorities. To deal with this problem, it would be advisable to adopt a parallel
26
PR system based on party lists targeting these groups. The definition of these
minorities, the exact priorities to be accorded each one of these groups, and
the proportions thereof should be a matter of inter-party negotiation.
In drawing up a scheme for a party list PR system geared to be better cross-ethnic
and gender representation, Kenya could draw on examples from other parts
of the world that have encountered similar political challenges. Among states
observing “mixed FPTP and PR system, Timor-Leste, at one extreme, elects only
15 per cent of its legislature on a single-district FPTP basis and rest on PR. At
the opposite end of the spectrum, South Korea allocates 20 per cent of the seats
under PR. Of the countries combining FPTP and PR in Africa, Senegal allocates
46 per cent of the total number of seats on a PR basis, compared to 36 per cent
for Seychelles, 67 per cent in Guinea-Conakry, and 80 per cent in Tunisia.
PR party lists could be “open” (i.e. not specify who the preferred candidates
might be) or they could specify gender ratios, as well as excluded ethnic and
religious minorities. Under some rules, seats have been reserved for identifiable
minorities - as has been done with “black communities” in Colombia, Tuaregs
in Niger, “tribes”, and “scheduled casts” in India. This is a potential solution
to representation of smallest minority groups in Kenya - Endorois, Ogiek,
Barabaig, etc. But it could also be applied to racial minorities that lack
political representation even though they play a significant (if not determinant
role) in the economy, notably Kenya Asians, Kenyan whites, Arabs, etc. - whose
political confidence must be won if rapid economic growth is to be assured.
It should be borne in mind that though a combined PR and FPTP bring the
advantage of better representation of politically excluded groups, voters find it
cumbersome and difficult to comprehend. It also does not guarantee overall
proportionality of party or voter-group representation in parliament.
Kenyans should not find it difficult to comprehend a “parallel” electoral system.
Although Kenya’s electoral system is designated as British-style single-constituency
- first-past-the-post - it has always contained a limited “parallel” PR component.
After the “communal rolls” were abolished following the second Lancaster House
conference of 1962, the Constitution allowed for 12 “Specially Elected Members” of
27
the House of Representatives. These members, initially nominated by the Governor
on the recommendation of the Prime-Minister, were expected to represent critical
constituencies that could not have acquired parliamentary representation on a
plurality basis. KANU used that device in 1963 to bring in Kenyan European and
Asian political leaders (though not women) deemed critical to the transition from
colonialism to independence. In addition to key appointments in the Executive and
Judiciary, this had the effect of stabilising the free-falling economy, and in reassuring
racial minorities during the politically-turbulent juncture of Kenya’s history.
In time, “Specially Elected Seats” mutated into “National Seats” serving,
under single party rule, the purpose of presidential patronage and the ethnic
calculations to buttress an authoritarian government. This went on until
the reforms brought into the Inter-Parties Parliamentary Group (IPPG) were
implemented in 1997. Without any reference to PR as an electoral device, the
IPPG reforms adopted a parallel PR system in effect, by allocating “national
seats” to parties on the basis of their share of directly elected seats, rather than
the proportion of votes cast as PR calls for. IPPG helped stabilise a violent
political phase, especially because of the complementary reforms in freedom
of assembly that it contained. Strictly speaking, the Kenyan elections that
followed in 1997 and 2002 were run on a “mixed parallel” basis, even though
the seats allocated on party-PR basis amounted to only 6 per cent of the total.
Consensus should be sought to expand the coverage of the concept using the
share of votes cast to a party to decide the number of legislators it is entitled to
on the basis of party list based on agreed priority categories.
1.6.1 Complementary Reforms
As argued from the start, reforms in the electoral system in and of themselves
are incapable of resolving the complicated political problems associated with
culturally segmented societies that reflect internal divisions at the polls. In
addition to considering electoral reforms along the lines discussed, the country
will not make much political headway until some critical constitutional issues
are addressed, most of which date back to the 1960s. That they have kept
recurring, often with much political passion, is an indication that brushing them
aside is no longer an adequate answer.
28
The first and most important of these is federalism (or majimbo). The 1963
constitution provided for seven regional governments with considerable
responsibilities in security, education, health, agriculture, and social services.
Experts estimated that 50 per cent of Government responsibilities would be
handled at regional level, primarily by district county governments. Regional
governments had been allocated some tax responsibilities (vehicle and driving
licences, poll tax and land rates), and proprietary rights on local community
lands (though not “scheduled lands” which fell under the Central Land Board
and could be traded in the market). They also had rights over local minerals
and natural resources. The KANU government (like most incoming nationalist
parties in Africa at the time) dismantled the system in 1964 in favour of the
Central Government. Joseph Murumbi, Kenya’s second Vice-President called
regionalism “a ghastly charter of inefficiency, corruption, poverty, and ultimately
the suppression of our national aspirations, in which a few people wanted to
carve out a little kingdom for themselves under the guise of protecting tribal
interests”.31 In one of the most even-handed assessments of that constitution,
Ghai and McAuslan said the system was confusing and inherently dysfunctional
even for anyone dedicated to devolution: “The regional executives were so
designed as not to lead to strong regional governments; they were clumsy
and unwieldy; there was a wide dispersion of authority and no clear lines of
responsibility”.32
Critics of the Kenyatta government and advocates of majimbo see an ethnic
conspiracy in the demise of the system. But they also forget that even after the
emasculation of regional authorities, county councils retained considerable
responsibility over all primary school education, local health centres, and
secondary and minor roads, as the 1963 constitution desired. Municipal
authorities and county governments in the economically advanced parts of
the country did this reasonably well at this. But as a result of fiscal insolvency
(primarily a result of inability to collect taxes) in most of the counties, and
inadequate managerial and technical capacity, the situation deteriorated to
the extent that the Central Government was forced to assume responsibility
31. Quoted in Sanger and Nottingham, “The Kenya General Election of 1963”, p.16.
32. Y. P. Ghai and J.P.W.B. MacAuslan, Public Law and Political Change in Kenya (Nairobi: Oxford University Press, 1970) p.200.
29
for these functions in 1970.33 The problem became even more acute after the
abolition of the Graduated Personal Tax (under pressure from populist political
leaders) in 1974. The tax constituted the bulk of local government revenue.
No resistance was offered against the move because the services improved,
leading to a declaration of free education in the first four years of primary
school in 1974.
Yet as a political aspiration in some form, Majimbo did not go away. It made
a resounding comeback as soon as the clamour for multiparty politics began in
1990, driving some political leaders from the former KADU regions to demand
its return and with it, whole expulsion of “non-indigenous” communities,
especially in Rift Valley Province and the Coast.34 The result was a series of
“ethnic clashes” in these regions. The clashes left 1,500 people dead and
approximately 300,000 internally exiled. Majimbo, in the guise of political
“zones”, was an integral part of the “Bomas” Draft Constitution of 2004, which
was federalist in character and in intent. Bomas and its Majimbo component
was an integral part of the political platforms of the leading presidential
aspirants from the Opposition Orange Democratic Movement (ODM) in the
run-up to the 2007 elections - Raila Odinga, William Ruto, Musalia Mudavadi,
and Najib Balala.
In view of its durability as a political demand, primarily in the quest of intercommunal equality, it would be advisable to seek accommodation - as Lijphart
and Young recommend - based on a negotiated agreement on the key Majimbo
demands: (i) security of indigenous land rights and a limit to cross-ethnic migration
and settlement; (ii) local entitlement to benefits from natural resources; and (iii)
fiscal federalism. Of the three, fiscal federalism is the least understood and the
one that deserves detailed study. Not only was an inadequate fiscal base a major
problem in derailing regional (and county) government in the 1960s but also the
issue has been subject to endless misunderstanding and speculation from that
33. Republic of Kenya, Development Plan, 1970-74 (Nairobi: Government Printer, 1970), p.14, and pp.179-182.
34. See Throup and Hornsby, Multiparty Politics in Kenya, pp.188-203.
30
time to the present.35 A lot of that has to do with the confusion between equitable
distribution of incomes, and fair shares of public expenditure; and profound
misunderstanding about sources of taxation (as it is and as it should be under
federalism), without which no public expenditure is possible. All these issues now
need to be fleshed out for all concerned to make informed judgements.
Despite this, these problems can be resolved using well-tested institutional
devices in the construction of federal states, or government in which constituent
regions exercise considerable autonomy at political and fiscal levels. And this
can be combined with discussion on electoral reforms already discussed, using
data-informed policy analysis on devolution and federalism as it would apply
to Kenya. For classic Majimbo-type devolution - not the ethnic cleansing
and land-grabbing associated with it in Kenya - a compromise solution that
is acceptable to regions in favour of federalism and those who detest it can
be found. Just as it is advisable for Kenya to adopt a mixed electoral system,
it would also be in the interests of the country to try a multiple devolution
system, allowing regions (or contiguous districts) to opt for internal self-rule,
or government by the centre. That way, nobody would be governed under
a system they do not desire. India, Britain (following devolution in Scotland
and Wales), USA and Canada, among many other countries, have multiple
devolution systems in which regional (or state) government do not duplicate
each other. It has been Africa’s misfortune to seek for “one-size-fits-all”
solutions in societies as pluralistic as ours. Apart from ethnic rivalries, this has
been the source of political animosity and bloodshed. Kenya’s reforms should
aim at stopping that by giving space to different systems of local rule.
35. Since mid-2006, journalists sympathetic to ODM and ODM presidential contestants have, in thinly-veiled
ethnic allusions, presented figures purporting to show that Central Province (Kikuyu) makes among the
lowest contributions in taxation to the exchequer (Shs.1.8 billion), compared to Shs. 6.9 billion from Nyanza
(Luo,Gusii, Kuria), Shs. 5.5 billion from Western Kenya (Luhya), Shs. 5.6 billion from Rift Valley (Kalenjin,
Maasai, Samburu, Pokot, Kikuyu), Shs. 2.7 billion from Coast (Mijikenda, Swahili), Shs. 920 million from
Eastern (Kamba, Meru, Embu, Boran, and others), and Shs. 43 million from North Eastern (Somalia). See
Barrack Muluka “Devolution can cure skewed distribution of national wealth”, The Standard, 22nd July 2006.
While contributing among the least, Central Province is said to draw more from Government than the rest.
Versions of this have been repeated by presidential aspirants Kalonzo Musyoka and Najib Balala. To start
with, the total State revenue included in those figures (Shs. 23.7 billion) amount to merely 7 per cent of total
recurrent revenue accruing to the Government in the 2004/05 financial year (Shs. 235billion). Kenya Revenue
Authority does not categorise sources by region, rather by function (income tax, excise, company tax, VAT,
customs) which are obviously concentrated in regions with the highest values of productivity and trade Nairobi, Central Kenya, Central Rift and Mombasa.
31
1.7 Conclusion
T
his paper began with an acknowledgement of the gains made by
Kenya in process of democratisation from 2003 onwards, without
glossing over the new challenges that have risen in the wake of
that progress. Against the backdrop of the highly pessimistic literature
on electoral studies of Kenya covering the period 1992 and 1997, this
indicates there are some inner strengths in the political system that were
side-tracked by the analysts. Even if one attributes the success to luck and
personality, the argument still holds: failure to seize golden opportunities
and moral character defaults consistently appear in that literature as
explanatory factors of the tragedy. This time the obstacles were overcome
in a peaceful, widely-hailed transition.
The principal lesson in that transition was that the power of an ethnically-inclusive
grand-coalition, of the kind mentioned by the democracy in plural societies
literature, to broad-based victory and widely-accepted national government.
Grand-coalition government is one of the governance devices. Kenya’s failure
to sustain that coalition must count as one of the many challenges that must be
overcome as the country makes effort to consolidate democratic governance
in the long run. The other challenge, which was the focus of this paper, is
electoral reform - towards more inclusiveness through a formal espousal of a
“mixed parallel” election system containing a substantial negotiated segment
of Proportional Representation.
Both reforms may be necessary but not sufficient conditions for further
democratisation of Kenya. Constitutional devolution that accords regions
more fiscal and political responsibilities has been on the agenda for too
long to be ignored. That it is a tested response to the chronic ethnic politics
of the kind Kenya has is one more reason to take it seriously. To ensure
that it maximises the gains of those who advocate it, without jeopardising
the interests of those that resent it, a multiple devolution system would
be advisable with districts (or regions) making a popular choice between
different but compatible systems of local governance. To the greatest extent
32
possible, majoritarian, plebiscitary and “winner-takes-all” formulas should
be avoided at electoral, national governance, and local government levels.
The opposite - national uniformity, majority rule, similarity of electoral rules
and local government - has been the goal of most African governments as
well as their opponents. It has also been the source of much misery, and will
continue to be. Plural societies deserve multiple solutions, not similar ones,
and Kenya is no exception. That was the central contribution the paper
sought to make.
In one of the most notable publication on African politics in the 1960s,
shortly after independence, the distinguished West Indian economist,
W. Arthur Lewis, made a strong warning against the then rising wave
of single mass parties and highly centralised government, and elections
based on a winner-take-all basis. He made a powerful case for grand
coalition politics inclusive as possible of major parties, decentralised or
federal governments, power-sharing and autonomy for minority groups.
Proportional representation was seen as an essential component of this
political statecraft. All this went against the nationalist grain at the
time. However he stood by that position because, “African societies were
plural societies not class societies” as in the West and the constitutional
solutions suitable to the western countries were unsuited to Africa. The
position taken by Lewis in Politics in West Africa in 1965 bears an uncanny
resemblance to the propositions contained in the formula presented by
Lijphart in 1977, and which featured prominently in the constitutional
debate marking to the transition of South Africa from apartheid before
1994. It was a transition celebrated by the rest of Africa and the world.
Africa’s political experience in the 30 years that elapsed between the
publication of Politics in West Africa, which most of Africa ignored, and the
end of apartheid ought to be a sobering lesson to all concerned about political
instability in Africa and the future of its people. We may never really know
what the most appropriate institutional framework for national governance
and elections for any country might be. In any democracy that is always
33
approximated through constant experimentation. We are on safer grounds
pointing what to avoid, and in this case the 1960s electoral systems now cry
out for fundamental change, as do the national governance structures that
go along with them.
34
2.0 The Kenyan Electoral System:
Comments by ECK Vice-Chairman
Gabriel Mukele
2.1 Introduction
W
hen I received the invitation letter to the workshop and looked at the
topic “The Electoral Systems of Kenya” I wondered what it was all
about. The stated objectives of the workshop, however, clarified the
matter. This paper deals with a few common electoral systems, and does not
pretend to cover worldwide electoral systems.
The Kenyan electoral system is basically a single member constituency based
on “First Past The Post” with very little pretence touching on the Mixed Member
Proportional Representation. There are good arguments for and against this
system. There are also arguments for and against the system of Proportional
Representation. Some countries have combined the two to form the mixed
member proportional representation. Germany is one such example.
The Kenyan pretence on this line is found in Section 33 of the Constitution
which reads:1. Subject to this section, there shall be twelve nominated members of
the National Assembly appointed by the President following a general
election, to represent special interests.
2. The persons to be appointed shall be persons who, if they had been
nominated for a parliamentary election, would be qualified to be
elected as members of the National Assembly.
3. The persons to be appointed shall be nominated by the parliamentary
parties according to the proportion of every parliamentary party in the
National Assembly, taking into account the principle of gender equality.
35
4. The proportions under subsection (3) shall be determined by the
Electoral Commission after every general election and shall be
signified by the chairman of the Commission to the leaders of the
concerned parliamentary parties, the President and the Speaker.
5. The names of the nominees of parliamentary parties shall be forwarded
to the President through the Electoral Commission who shall ensure
observance of the principle of gender equality in the nominations.
I call it pretence because:(a) There is no party list giving the names of those to be nominated for
the electorate to know.
(b) Those nominated are either friends or supporters of parties and there
are some parties in Kenya that are owned by individuals.
(c) Nobody pays attention to gender or special interests or particular
qualifications of the nominated people.
The section can easily be amended to introduce the MMPR system. It can for
example provide for 60 unelected members of Parliament of which 40 would be
women. The other 20 members would be shared out to cover special interests
that would include the disabled, trade union representatives or minorities that
would never be represented in parliament through the normal election. The
Asian and European communities that bring the number of Kenyan tribes to
44 and not 42 play a major role in the country’s economic development and
would hence get a chance to be represented through this system.
2.2 History of the Kenyan Electoral Process
K
enya achieved its independence from the British by the 1963 Kenya
Independence Order in Council. The British set up a constitutional
structure that was calculated to take care of the various interests and
conditions prevailing at the time. It was a structure that had the potential
to ensure the development of a democratic rule. It provided for checks and
balances between the various arms of government and it protected fundamental
human rights. The constitution provided for a decentralised structure based on
36
eight regions of the country. Within the regions were county, urban, municipal
councils and the City Council of Nairobi, the capital. Kenya was to be an
independent multiparty democracy with the Upper House or Senate and the
Lower House of representatives.
Having acquired independence, the ruling party or class set out to dismantle
the system and centralise power. The federal structure of governance was
abolished in 1964 and so was the bicameral legislature. This was followed by
the shift away from multiparty democracy to a one party state with the political
power heavily concentrated in the presidency. By 1988, the country had
become a one party state ruled by the only party, the Kenya African National
Union (KANU). The problems that followed the setting up of the new system
of government are well known to historians and observers. These are the
problems that the current constitutional reform process has been addressing
without much success.
Kenya has held elections regularly since its independence even if some of the
elections, such as the 1988 elections, have been bogus and could be described
as selections rather than elections. The first Electoral Commission was set up
under section 48 of the 1963 Kenya Independence Order in Council. Its
members were the Speaker of the Senate as the Chairman, the Speaker of the
House of Representatives as the Vice-Chairman, a member appointed by the
Governor General acting on the advice of the Prime Minister and a member
representing each region appointed by the Governor General acting on the
advice of the President of the Regional Assembly of the region. The regions
were eight, therefore, the Commission had eleven members including the
Chairman.
As the centralisation of power by the Executive increased, so were the functions
of the Electoral Commission reduced. Over the years, its only function
became the delineation of the constituencies that were directly affected by the
administrative boundaries which were set out by the Office of the President.
Registration of voters and the elections were carried out by the Director of
Elections, a civil servant at the office of the Attorney General. The same
37
office in the Registrar General’s department later registered political parties
at the whims of the establishment. During elections, District Commissioners
in charge of districts were the Returning Officers and the clerks under them
were the Presiding Officers and voting clerks. Except in the south, Kenya is
surrounded by sister states which have experienced serious political upheavals
that were more serious than Kenya’s own political assassinations. These
countries experienced violent changes in government and in one case, peace
has yet to return after 14 years of anarchy. Kenyan leaders and people did not
therefore want to see that violence hence under pressure from the civil society
and political dissent, the government of the day reverted to multipartyism in
1991. Multiparty democracy in the developing world is impossible without an
independent and effective Electoral Commission.
2.3 The Electoral Commission Set Up
T
he Electoral Commission of Kenya is set up under section 41 (1) of
the Constitution that states; “There shall be an Electoral Commission,
which shall consist of a chairman and not less than four and not more
than twenty-one members appointed by the President.” It will be noticed that
while Kenya has the largest Commission in the Commonwealth, indeed it has
provisions for the smallest one with four members and the chairman depending
on the needs and the circumstances of the day. In fact some Commissioners
who died have not been replaced. Until 1997, the number was between four
and 12 Commissioners. In 1997, political parties decided to talk to each other
instead of talking at each other. They reached an understanding commonly
known in Kenya as IPPG (Inter Parties Parliamentary Group).
Political parties in the opposition had been unhappy with the Electoral
Commission as it was then, believing that since its members were appointed
by the President, the incumbent and the KANU party leader, it could not be
fair to opposition party activities. They wanted changes in the electoral law
that would make the Commission neutral and establish a level playing ground
that would facilitate free and fair elections. Thus opposition political parties
nominated 10 Commissioners for the President to appoint and the law was
38
changed to accommodate these additional numbers. The Commissioners
became 22 including the chairman. The IPPG agreement on who appoints
the Commissioners was never included in law. While it is true that the new
inclusion brought more confidence in the Commission, the new Commissioners
did not, in practice, act as opposition Commissioners. They have all worked
well without regard to the sources of their appointment. It is my personal view
that representation of political parties in the Commission would be undesirable
for the following reasons:(a) party wrangling could extend from parliament and other fora to the
Commission.
(b) Commissioners have security of tenure and need not pay attention to
those who appointed them.
(c) The Electoral Commission is independent as provided in section 41
(9) of the Constitution and like judges once appointed, commissioners
must carry out their duties in accordance with the law and the mode of
appointment not withstanding.
(d) The Commission must be strictly impartial and fearless in the
application of the law.
(e) There are over 50 registered political parties. Each would want a slot
in the Electoral Commission.
2.4 The Electoral Law of Kenya
(i) The Kenya Constitution (1998 edition)
The Electoral Commission is set up under section 41 of the Kenya Constitution.
The chairman is appointed by the President and the vice-chairman is elected
by members of the Commission. Both the chairman and the vice-chairman
must be people who have held or are qualified to hold office of a judge of the
High Court or Court of Appeal. Once appointed, a Commissioner’s position
is secure and he or she can only be removed, through a special procedure
requiring setting up of a tribunal chaired by a High Court judge. It is the same
procedure that applies to the removal of judges from office. After the tribunal
39
has taken evidence against a Commissioner and given him/her a chance of
being heard, a recommendation is made to the President for action. Section
41(9) of the Constitution states that in the exercise of its functions under this
Constitution, the Commission shall not be subject to the direction of any other
person or authority.
The functions of the Commission as set out under Section 42 and 42A of
the Constitution and are:
(a) Decision on the number, boundaries and names of constituencies
in which the country is divided.
(b) Review, and where need be, alteration of numbers and names of
constituencies.
( c) Registration of voters, maintenance and revision of the registers of
voters.
(d) Direction and supervision of Presidential, National and Local
Government elections.
(e) Promotion of free and fair elections.
(f) Promotion of voter education throughout Kenya.
(g) Performance of such other functions as may be prescribed by law.
Section 42 (1) of the Constitution empowers the Commission to determine
the number of constituencies into which the country will be divided, yet
sub-section (2) thereof gives Parliament power to determine the minimum
and maximum number of constituencies into which the country can be
divided. During the 1996 constituency review exercise, the Commission
proposed that the country be divided into at least 250 constituencies, but
the law limited these to 210 constituencies. This is an apparent conflict
in the law though the intention may be good. Under Section 42 (3),
the Electoral Commission is required, when determining the number of
constituencies, to ensure that all constituencies contain as nearly equal
number of inhabitants as appears to be reasonably practicable. However,
the Commission may depart from the aforegoing principle to the extent
that it considers expedient in order to take account of:
40
(a) the density of population and any part to ensure adequate presentation
of urban and sparsely-populated rural areas;
(b) population trends;
(c) means of communication;
(d) geographical features;
(e) community of interest;
(f) the boundaries of existing administrative areas, and for the purposes
of this subsection, the number of inhabitants of any part of Kenya shall
be ascertained by reference to the latest census of the population held
in pursuance of any law.
The Commission reviews constituencies at intervals of not less than 8 years
and not more than ten years or whenever directed by an Act of Parliament.
At the end of review, the Commission may, by order, alter the number,
boundaries or names of constituencies to the extent that it considers
desirable, but in accordance with the provisions of the Constitution. The
order of the Commission prescribing constituencies becomes effective
upon publication in the Kenya Gazette and is not subject to debate by
Parliament.
(ii) The National Assembly and Presidential Elections Act
The National Assembly and Presidential Elections Act (Cap 7 Laws of
Kenya), 1998 Edition with regulations and rules made there-under besides
the schedules of that Act, gives a detailed framework and procedures of
the electoral and registration of electors processes.
Section 17A of the Act gives the overall conduct of the National Assembly
and Presidential elections to ECK. The procedure for voting in elections
is set out in the Presidential and Parliamentary Elections Regulations
made by the Commission under section 34 of the National Assembly and
Presidential Elections Act. Those regulations still stand except as amended
a few months before the December 2002 General Elections.
41
The law empowers ECK to prepare and maintain a register of electors
in respect to all constituencies. Section 34 provides for ECK to make
regulations to govern the registration of electors.
Significantly, the Act was amended in June, 2002 under the Statute Law (Misc.
Amendments) Act, 2002 to provide for continuous registration of electors.
Other amendments to the Regulations in the Act provided for, among
others, the counting of votes at polling stations, marking of the ballot
papers using any mark except those that would identify the voter, and
incapacitated electors to be assisted by persons of their own choice.
It is important to note that the law under Section 3 of the Act provides for
the appointment of staff by ECK. The code of conduct for members and
staff of the Electoral Commission of Kenya is also available.
Section 3(3) of the Act provides for police officers assigned duties by ECK
in the conduct of elections to be deemed election officials, and are subject
to the direction and instruction of ECK. This is a very controversial area.
Those police officers are not available in sufficient numbers and in practice
the Electoral Commission never commands them. I have personally
advocated a unit of about three to five per constituency under the overall
command of the Electoral Commission through its area Commissioners
and election officials.
To be specific on registration of voters, the law requires citizens who intend
to vote to apply and be registered as voters. The National Assembly and
Presidential Elections Act as well as the Local Government Act provide for
the registration procedures. The provisions include:
• continuous registration of voters (except for the times it is not
allowed);
• time of claims and objections;
• where to register;
42
• who qualifies or is not qualified to register;
• how to register.
The ECK is responsible for the registration of voters. The Commission
appoints the Registration Officers and their assistants to conduct
the registration of voters and compile a register of electors for each
designated registration unit. It is the voters’ responsibility to inspect
and ensure that their names and particulars are properly included in the
register.
There are provisions which deal with the loss of the voter’s card, change of
residence, transfer, objections and appeals. All objections must be directed
to the Registration Officers who receive and deal with them in accordance
with the provisions of the law.
Appeals must be filed within the provided time from the date of
communication of such refusal or decision as the case may be and must
follow the set regulations. All appeals must be heard and determined
before the polling day.
(iii)Electoral Code of Conduct
This Code was set-up in 1997 under Section 34A of the Act. While the
country’s Criminal laws and the Election Offences Act apply to election
activities, the Electoral Code of Conduct specifically deals with campaign
activities. It is the fourth schedule to the Act. It applies to political parties,
candidates and the government of the day. Its objective is to “promote
conditions conducive to the conduct of free and fair elections and a
climate of tolerance in which political activities may take place without
fear of coercion, intimidation or reprisal.” Paragraphs 5 and 6 of the
Code outline what participants in the election undertake to do.
ECK is empowered to enforce the Code and impose sanctions by way of
warnings, fines, limitation on campaign activities or disqualification through
43
court action. It can, through a court order, bar a party or candidate from
taking part in the election.
The Electoral Code of Conduct was first enforced during the 2002 General
Elections when the Electoral Commission set up the Electoral Code of
Conduct Enforcement Committee chaired by the vice-chairman. The
committee summoned political parties/candidates and heard evidence
concerning complaints from opponents or as provided by observation by
electoral officials and the press, e.g., vote buying and electoral violence.
The ruling party was fined and so was a candidate of one opposition party.
It has not been easy to enforce the Code for the following reasons:
(a) The campaign period is so tense and activities move so fast that
organising the hearing of disputes and getting witnesses becomes a
problem.
(b) Taking the matter to court in order to bar a party or candidate from
taking part in the election or campaign is difficult, knowing how slow
court processes yet everyone blames the Commission for failing to
take drastic action against the offenders.
It has been suggested that the legal provisions requiring court orders
should be removed and the power be given to the Electoral Commission
to handle the malpractices at that time. The Commission should deal
with disputes before the declaration of results. It should have power to
cancel an election before the formal declaration and gazettement of the
said result. The court would take over immediately after election results
are announced and whatever the Commission would have done would
form part of the election petition issues.
(iv) The Local Government Act (Cap 265 Laws of Kenya, 1998 edition)
In this Act, there are provisions giving the Electoral Commission powers
to establish electoral areas. It has rules that govern Local Government
Elections outlined in the 5th Schedule thereto, besides sections 10, 53
44
to 53(c), 57 to 61 of the Act. It also provides rules for the registration of
electors and the preparation of a voters’ roll. Some of the qualifications
and disqualifications for one to register as a voter differ from what is
provided under section 43 of the Constitution. For example, a voter in a
local authority has to be on the roll of rate payers. In practice however,
these differences are not adhered to during registration of voters.
(v) The Election Offences Act (Cap 66 Laws of Kenya)
This Act details the election offences and punishment for breaches. It
was meant to cover offences and illegal practices at elections and in the
registration of electors.
(vi) The Societies Act (Cap 8 Laws of Kenya)
This Act provides for registration of political parties. The Electoral
Commission working with the Kenya Law Reform Commission, the Attorney
General’s Chambers and an NGO working on democratization, drafted
the Political Parties Bill of 2005. That Bill was to streamline the registration
and operations of the political parties. It is still stuck somewhere. It is
common knowledge that in most commonwealth countries except
Tanzania, the political parties are registered by the Electoral Commission
which also controls their funding. The Bill in question provides for funding
of the political parties by the Treasury.
(vii)The Public Order Act (Cap 56 Laws of Kenya)
This Act makes provision for the maintenance of public order at public
meetings (rallies) and campaigns.
(viii)The Kenya Broadcasting Corporation Act (Cap 221 Laws of Kenya)
The changes in the Act were to facilitate access to the public media by
various political parties and candidates.
45
(ix) The Penal Code (Cap 63 Laws of Kenya)
Most of the offences concerning elections are also offences in the Penal
Code. This is particularly so when looking at the Election Offences Act.
2.5 The 2002 General Elections
T
he 2002 general elections were historical and positive in many respects.
The positive aspects included:(a)Counting was done at polling stations, party agents got copies of
polling results documents at the polling station. In fact, political
parties quickly relayed information and got results before the Electoral
Commission got them. The changes eliminated previous suspicion on
possible stuffing of ballot boxes enroute to the counting halls, etc.
(b) The Electoral Commission set up the Electoral Code of Conduct
Enforcement Committee that summoned parties and candidates
reported to be infringing the Code of Conduct. The ruling party itself
and a candidate of the opposition party were heavily fined and many
other candidates were warned.
(c) The training of election officials was good. The training materials
were produced and distributed in time.
(d) There were several election guides that were specific for Returning
Officers, Presiding Officers, polling clerks, candidates and voters
themselves.
(e) The computerised registers and information facilitated the smooth
transition of the vital documents and information.
(f) The set up of the result and media centres gave the elections the
necessary transparency and credibility.
The negative aspects were inter alia:(a) The chaotic nominations in that a political party could end up
forwarding two or more nominees at the close of the nomination time
hence the burden was on the Electoral Commission to get to the party
leaders. There was a complete lack of intra party democracy and
gender sensitivity in the nomination of candidates.
46
(b) The new election rules were approved by parliament three or so days
before parliament was dissolved. This put pressure on the Electoral
Commission to digest and educate political leaders, candidates,
election officials and the electorate.
(c) The lack of an empowered conflict resolution body that would deal with
conflicts as they arose without going to the law courts during elections.
The courts should ideally take over after the announcement of results.
(d) The merging or making of agreements among political parties a few
days before the formal nomination, hence the confusion as to who
were the candidates of the emerging unity or agreement. Opposition
parties came from the new political party yet their old political parties
were still validly registered.
(e) The breakup of political parties on the eve of the elections and lack of
clear legislation governing these activities.
While the 2002 elections went on reasonably well and were viewed positively
by Kenyans and some observers alike, the latest by-elections showed that
all was not well for the democratisation process. It is a pity that some of
the very people who fought hard for the current democratic space are the
same people who want the situation to revert back to what it was during the
elections of 1988.
47
2.6
K
Conclusion
enyan politicians are notorious for wrangling and making decisions, if
any, at the last minute. Constituency reforms and by extension electoral
law reforms can all be finalised in one month, if there is goodwill. The
regulations that brought the counting of votes to the polling stations, the process
that eliminated tampering with election results were legalised by parliament
three or so days before it was dissolved. The same group that worked on
the aforementioned Political Parties Bill has been working on the Elections
Bill. A third draft is ready and a one day workshop would see it through.
It could become law within two months and be operational during the next
General Elections. The bill enhances the power of the Electoral Commission
in enforcing the Electoral Code of Conduct and resolving conflict with powers
to punish the offenders.
48
3.0 The Electoral System and Multi-Partyism in Kenya
3.1
A
Njeeri Kabeberi ED, Centre for Multy party Democracy (CMD)
different electoral system can significantly alter the voting pattern and
thus the political process as seen in 1988 when the secret ballot was
replaced by the queuing (mlolongo) system. The latter was found to
encourage fear and therefore lessen freedom of choice of the voter. Kenya’s
current electoral system is typical of electoral systems in former British colonies
in that almost all members of the national legislature are elected from single
constituencies on the principle of “first past the post.”
3.1.1 Over and Under-representation
The electoral system is however controversial because its electoral districts
(the constituencies) vary greatly in population and size. In the 210 current
constituencies, the least populous electoral district has less than 4,000 people
while the most populous district has nearly 302,000. Most districts have
populations that are well above or below the mean population of 103,000. This
huge variation of population across districts violates the democratic principle of
one person one vote. Currently the system allows for residents of constituencies
with populations below the mean population to be over-represented in the
National Assembly, while residents of constituencies with populations above the
mean are under-represented. Kenya’s present configuration of constituencies
systematically over-represents residents of the most sparsely populated areas of
the country, and under-represents the residents of the most densely populated
areas. Residents of arid and semi-arid areas in the Rift Valley, northern, eastern
and southern Kenya are over-represented while the residents of western and
central Kenya, and especially residents of the capital city of Nairobi, are under-
49
represented. This pattern of representation was established in 1961 and 1963
when Kenya held multi-party elections prior to independence.
The pattern was established because the Kenyan Constitution was (and
remains) vague about the criteria for the delimitation of electoral districts.
The constitution is vague because it specifies multiple criteria that are often in
conflict with each other:
• According to Section 42(3) of the Constitution, “all constituencies shall
contain as nearly equal numbers of inhabitants as appear to the [Electoral]
Commission to be reasonably practical, but the Commission may depart
from this principle to the extent that it considers expedient in order to take
account of:
•
(a) the density of population, and in particular the need to insure adequate
representation of urban and sparsely populated rural areas;
(b) population trends;
(c) the means of communication;
(d) geographical features;
(e) community of interest; and
(f) the boundaries of existing administrative areas . . .”
If the principle of one person one vote is respected and constituencies
are established with equal or nearly equal populations, the principle of
establishing constituencies that reflect communities of interest or “sparsely
populated areas” will be violated, and vice versa.
However, although Kenya’s electoral system has over-represented and underrepresented peoples from different regions for many years, this defect was
never a source of controversy during the era of the one-party state (19691991), because it did not affect the distribution of seats among political parties.
However, since the return of multi-party politics in 1992, the pattern of unequal
representation has been increasingly regarded as “unfair” by political leaders
from the western and central areas of the country. In the past, this system
seemed to favour the party KANU.
50
3.1.2 The Presidency
Kenya is a presidential representative democratic republic with a direct
presidential election. This method of election gives the president of Kenya
enormous power with a positive advantage, especially with regard to the 25%
majority vote that the winner has to obtain in at least five provinces. This gives
the holder of the presidential office a national image and representation. In
the foregoing constitutional debates, the current presidential system has been
challenged as giving too much power to one person and there have been calls
for the establishment of a prime minister’s office, which would separate power
between the head of state and the head of government.
3.1.3 Ethnicity and Representation
Kenya’s current electoral boundaries have continued to support an ethnic based
electoral process other than for the presidency. For as long as the electoral
boundaries are geographically distributed, they will in this country continue to
be ethnically distributed. Other than urban constituency boundaries, mainly
in Nakuru and Nairobi, most other boundaries are within a province and a
district that essentially covers one ethnic group. A change in the constitution
with a view to giving Kenyans a different election option may be the solution
to this. However, this issue is not currently on top of the list of constitutional
discussions and we may therefore continue with this system for many elections
to come.
The Presidency, however, is the only electoral seat that remains outside ethnic
representation because of the 25% clause that requires the president to receive
at least 25% votes in a minimum of five provinces. This gives the office of the
president a national face.
3.1.4 The Electoral Commission
The Electoral Commission has continued to gain strength over the years
despite its dismal performance in years gone by. Although the Commission is a
constitutional body that existed since independence, its active life in Kenya was
only clearly known and felt at the 2002 elections when the first ECK chairperson
51
was nominated by the then president, Daniel Toroitich arap Moi. In the years
of one party system prior to the 1992 multi-party elections, the Commission
only existed in name and did not perform any of its duties in the supervision
of elections. To date its performance continues to be wanting despite major
improvements. There are constant complaints that the Commission does not
act on election malpractices. The Commission, however, in its own defence,
argues that it does not have enough powers and has to rely on the courts to
punish election offenders, thereby delaying justice.
3.2
Multi-Party Politics in Kenya
3.2.1 A Historical Recap
T
he road to the current multi-party system we enjoy in Kenya has been
rough and bumpy. Multiparty politics re-emerged in Kenya after
December 1991, with the repeal of Section 2a of the constitution. In
1982 Section 2a had officially made Kenya a one-party state, with the Kenya
African National Union (KANU) as the sole legal party. Kenya had been a
de facto one-party state since 1969 and had gone through different phases
of multi-party and one-party politics since independence. From that date on
(1982), all political candidates had to be members of KANU.
The re-emergence of a multi-party system in the 1990s initially produced a
fractured opposition to President Moi and KANU. After 1991 an important new
opposition party, the Forum for the Restoration of Democracy (FORD), which
later split into different factions forming a number of FORDs, and numerous
other parties, emerged. After two national elections (1992 and 1997) in which
Moi won against a divided opposition, various opposition elements formed
the National Rainbow Coalition (NARC), a coalition of a dozen parties which
included the then little known National Alliance of Kenya (NAK), the Liberal
Democratic Party (LDP), Ford-Kenya, the Democratic Party (DP), among others.
NARC fielded Mwai Kibaki in 2002 and enjoyed a solid victory to become the
governing party. The coalition has since self-destructed and brought in ‘arch
enemy’ party KANU to form a government of national unity.
52
3.2.2 Coalition Politics
With the current political party and election system which allows for formation
of coalitions before elections without necessarily merging parties, the party
with the majority within a coalition does not necessarily become the leader of
government or state. This is what happened in the case of LDP in Kenya in 2002.
LDP garnered at least 59% of the 56.1% of the total NARC vote out of the 132
MPs represented in NARC, yet they are currently essentially out of government.
The 2007 General elections could become a repeat of this scenario especially
with regard to KANU, which is the only party with properly established party
structures and membership across the country. It is possible, for example, that
KANU may actually get the majority of votes and therefore MPs, but because it
may not have the presidency, within the current arrangement, they could easily
end up like LDP.
Political expediency demands that political parties form groupings that allow
them competitive advantage in the elections. We therefore continue to witness,
desperate and hastily organised arrangements aimed at winning the next
elections. The current system which allows for many parties to exist while at
the same time allowing themselves to go into elections through some form
of coalition as seen in the 2002 elections, or, as we are witnessing with the
formation and registration of ODM-Kenya, actually tend to undermine the very
essence of multi-party democracy.
3.2.3 The Two-Party System
The question that arises though is; would Kenya be favoured by a two-party
system or a more parties system given our level of development? Twoparty systems often develop spontaneously when the voting system used for
elections discriminates against third or smaller parties. This seems to be
the pattern we are developing in Kenya and as it unfolds, we need to think
through the rights of minorities and how these get represented in our fairly
weak party system.
53
Kenyan political parties have suffered from an identity crisis for a long time and
as they attempt to redefine themselves, they are constantly engaging in reactive
rather than proactive politics operating out of fear rather than strategy.
A two-party system as we seem to be gravitating towards, requires voters to
align themselves in large blocs, sometimes so large that they cannot agree
on any overarching principles. This system easily allows for centrists who
have no clear political agenda to gain control. While as we still do not have
clearly defined right-wing or left-wing political parties in Kenya, the stage of
our political growth requires that we begin to find our ideological footing.
Otherwise, we continue to be unable to hold any one party accountable to
anything because it can be argued many centrists have no definite agenda
beyond gaining power. The party developments as we are witnessing may seem
the easy way out, but is a short-cut which will derail rather than move us
towards progressive political development.
3.2.4 Ethnicity and Multi-party Politics
Two issues also arise around the two party system. Does this system help us
get rid of ethnic politics or are we encouraging those very politics? Ethnicity
continues to be an issue around elections in Kenya because the constituencies
within the existing electoral process are, except for urban areas, within certain
ethnic boundaries. It would be interesting to see Kenya with a proportionate
representation system or party list system. This system would encourage us to
support political parties rather than individuals irrespective of whether those
individuals are from our ethnic communities or not.
54
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