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.

Again, drawing on the failure of the Weimer Republic, the position of Chancellor as head of government was greatly strengthened, with the Federal President consigned mainly to ceremonial duties.

The Chancellor is the key figure in the political system. Even if there is a vote of no confidence against the Chancellor, the opposition must propose its own candidate on the same ballot.

Parties represented

We consider our party system to be very stable. For nearly three decades, only three parties were represented in the Bundestag — the Christian Democratic Union (CDU), the Social Democratic Party (SPD), and the Free Democratic Party (FDP).

In the 1980s, the growing peace and environment movement led to the formation of the Green Party, represented in parliament since 1983.

Following re-unification, the former socialist state party of East Germany, Die Linke, became the fifth party within the system. All these parties — with the exception of Die Linke — are able to form coalitions and work together in government or opposition.

Key to German political stability have been the special rights guaranteed for the parliamentary opposition. For example, it is always a member of the opposition parties who chairs the important budget committee.

The opposition can also demand the establishment of an investigation committee to deal with a special or sensitive issue of concern, though it needs 25 per cent of parliamentarians to support such a demand. Germany is an excellent example of entrenched rights for the opposition strengthening parliamentary government.

To this, can be added the German concept of federalism. Strong state governments with their own parliaments, governments and executive branches — as well as certain legislative process — help to control the Federal Government.

The Upper House — Die Bundesrat — made up of representatives of the state governments and often dominated by the opposition, acts as a further check on the executive.

We are confident in our democracy, which combines stable majorities with wide political representation. The system provides for control of the Federal Government at different levels. Against non-democratic groups, the concept of “militant democracy” has proved to be successful.

I certainly commend some of these examples and principles to Kenyans.

Patrick Meinhardt has been a member of parliament representing the Free Democratic Party (FDP) since 2005. He is the Chairman of the Parliamentary Group for Relations with the States of East Africa, which has over 30 members, and Vice-President of Liberal International.

To be continued Tomorrow