Learning political lessons from Germany

• As debate on constitutional change in Kenya builds up yet again, the Association of European Parliamentarians for Africa and the Nation discuss different parliamentary systems in Europe, and weigh proportional representation against the ‘first past the winning post’. In this series, parliamentarians from Sweden, Ireland, Germany, Denmark and Austria give their views.

For Kenyans seeking guidance in the comparison between proportional representation and the “first past the winning post” principle, the German institution recognises both systems.

Half Germany’s members of parliament are elected directly in the constituencies — another 50 per cent of the members are elected according to proportional representation.

A single party has to win at least five per cent of all votes to gain seats in the federal parliament or has to win the directly elected seats of three constituencies. What is called the “five per cent hurdle” was incorporated into German election law to prevent political fragmentation.

Thus the electoral system combines the effectiveness and representation of a variety of political parties.

Napoleonic occupation

Germany’s political system evolved from cataclysmic events such as the disaster of the Second World War and the re-unification with Eastern Germany after years of communist dictatorship.

It has its roots in separate nation states — and its own war of liberation, which ended the Napoleonic occupation. This produced both national unity and a degree of democracy with the grand Duchy of Baden introducing the first liberal constitution in a German state in 1818.

However, the “Deutscher Bund”, or German confederation — a coalition of German states with limited power — existed without any constitution or parliament.

In 1848, a “democratic revolution” forced aristocratic and autocratic state rulers to accept elections for an all-German parliament, which held its sessions in the Paulskirche in Frankfurt. The parliament passed into law Germany’s first institution guaranteeing human rights such as freedom of press and speech, religion and assembly, and also banning the death penalty.

But this promising situation did not last. The German unification of 1871 was not based on a decision of the people, but by the agreement of the rulers of the German states.

The constitution of the German Empire guaranteed civil rights and parliamentary representation, but real power was vested in the hands of the Emperor or Kaiser.

The end of the First World War in 1918 heralded the end of monarchies in the German states and Germany as a whole. The newly elected national assembly adopted a new democratic constitution, establishing the German Reich as a democratic federal republic.

The fundamental tenet of the Weimar Constitution, as it was called, was that Germany would be a parliamentary republic based on proportional representation. The result was ultimately catastrophic — a fragmentation of the political system and unstable parliamentary majorities leading to the eventual rise of Adolf Hitler who became Chancellor in 1933.

Thus, in the immediate post-war years, with Germany under western occupation and East Germany under the oppressive rule of the Socialist Unity Party, the new Basic Law for the Federal Republic of Germany drew lessons from the collapse of democratic structures in the latter days of the Weimar Republic and, of course, dictatorship in the Nazi era.

But it could also draw on Germany’s latest democratic and historic traditions. The first part of the new constitution therefore emphasises human and civil rights while “human-dignity shall be inviolable. To respect and protect it shall be the duty of all state authority”.

Never again would the gross violation of human rights be accepted by the German state and its politicians. Nor would violence be allowed to be part of the country’s political culture as a means of achieving political ends.

Government, Parliament and the Judiciary would therefore be given considerable powers — known as “militant democracy” — to defend Germany’s liberal democratic order. Even a majority of the people would not be allowed to install an autocratic regime.

So people “hostile to the constitution” can be banned from the civil service. Parties which oppose the democratic order can be prohibited by the Constitutional Court. And, according to Article 20, every German has the right to resist anyone who seeks to abolish constitutional government — though only as a last resort.