Why Independents are actually good for the politics of Kenya

An official at the Office of the Registrar of Political Parties in Nairobi on May 8, 2017 gives out clearance letters to independent candidates. Independents may affect how county assemblies and Parliament do business. PHOTO | EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • Our history does not show that presidents with legislative majorities work for the good of Kenya.
  • Each side would have strong incentives to bargain with the independents.

It is stunning news in a country whose politics is perennially chocked by ethnic entrepreneurs running family-owned political parties: 4,950 candidates are seeking IEBC clearance to run as independents in the August elections.

That number will certainly drop when IEBC scrutinises their papers in a fortnight.

Whatever happens, though, in the next election there may be more independents on the ballot than there will be candidates of Jubilee and the National Super Alliance, respectively. In 2013, only 350 people ran as independents.

Party leaders will be mulling over these convulsive numbers rather nervously.

LEGISLATIVE MAJORITY

Though the breakdown is not clear as of now, there are at least 27 independents who want to run for governor; 30 as senators; 215 as MPs and many more as members of county assemblies.

There is a better than even chance that as many as 30 per cent of all elective offices in Kenya: governorships, county assemblies; the National Assembly and the Senate could be independents, a real game-changer.

There are those who fret that this will breed chaos and confusion.

Governors and presidents need legislative majorities to govern.

How would an independent governor — or president — get the legislative majorities that he needs to push through his agenda? Won’t this spawn paralysis?

MODERATE POLITICS
I will give two reasons why such pessimism is not justified and one reason why our focus should be elsewhere.

One, our history does not show that presidents with legislative majorities work for the good of Kenya.

Two, county politics over the last five years show that relations between governors and MCAs have been more fraught, less amicable in one party dominated assemblies, not in multiparty counties as the pessimistic view seems to imply.

Counties in which the governor’s party does not dominate have had calmer, more moderate politics than those where it does.

I argue, as a third point, that the impact of independents — where our focus should be — will be most felt, if it is felt at all, in the working of assemblies, that is, in voting on issues and confirming appointments.

SENATE ABOLISHED
A long view of Kenya’s political history shows that when a party wins both the presidency and a majority in Parliament, it is usually dictatorial and unaccountable, not effective.

At independence, Kanu won 54 per cent of the popular vote but 83 (or 66 per cent) of the 124 national assembly seats available.

With only 18 of the 41 seats available, Kanu had a minority in the Senate.

However, it was able to leverage its assembly majority to weaken the Senate, first by refusing to vote money for Regional Governments and second, by buying individual senators.

The Senate was eventually abolished, creating Kenya’s most partisan and legally destructive Parliament.

On average, that Parliament amended the Constitution once every 13 months for the next 30 years, spawning a highly repressive constitutional dictatorship.

PUNITIVE LAWS
In 1992, with only 36.6 per cent of the popular vote, Kanu won 100 seats (or 53.2 per cent of the seats).

With more than 60 per cent of the popular vote, the opposition collectively got only 46.8 per cent of the seats.

Over the next five years, Kanu would deploy its majority trying to claw-back the gains that multiparty politics had brought.

Were it not for a vociferous opposition — most of it outside Parliament — it would have pushed through many draconian laws, including some especially pernicious media laws that the government had drafted, modelled on originals from Sani Abacha’s military dictatorship in Nigeria.

In 1997, a slightly more organised, less acrimonious opposition ate into Kanu’s parliamentary majority with the result that Kanu got 113 seats and the opposition 109 seats.

That wafer-thin majority frustrated the autocratic ambitions of the ruling party and ushered in, over the next five years, Kanu’s least repressive days.

PROGRESSIVE LEGISLATION
In 2002, the Kibaki-led National Rainbow Coalition, NARC, won a handsome 132 of the 222 seats available but it lost the comfort of that majority after Kibaki double-crossed Raila on a 50-50 pre-election power sharing agreement.

A reasonably moderate pro-growth government then followed.

In 2007, the opposition beat Kibaki’s Party of National Unity.

They got 138 seats but the resulting political violence forced a Grand Coalition which, in four and half years, enacted some of the most progressive legislation — including a new Constitution — the country had ever seen.

When a party of government next won a clear majority in Parliament — Jubilee in 2013 — it quickly reverted to the old ways; ignored the opposition; passed draconian laws — remember the security laws amendments? — and, generally, behaved as if its majority were a constitutional warrant for dictatorship.

IMPEACHMENT
Reading this history, then, the belief that a President without a majority in Parliament is ineffective has no basis.

Rather, such a President is less overweening, more conciliatory because he must bargain with opponents in Parliament to get things done.

This squares with what theory suggests: more independents would weaken the power of extremists in both Jubilee and Nasa, denying one or both the votes needed to frustrate reforms.

Each side would have strong incentives to bargain with the independents. This may even moderate Kenya’s polarised politics.

If this history does not convince you, then recent county politics should.

Three county assemblies have voted to impeach their governors since 2013: Embu, Murang’a and Nyeri.

Two of those impeachments — that of Mwangi wa Iria of Murang’a and of Nderitu Gachagua of Nyeri — were rejected by the Senate. All the three counties are one-party clear majority counties.

BARGAINING TACTIC
In Embu, Governor Wambora was voted out twice, with one vote being confirmed by the Senate before being over-turned by the court.

In multiparty counties such as Kwale, Laikipia and Kisii, where the party of the governor does not have an overwhelming majority, the threat to impeach the governor has been used merely as a bargaining tactic.

In Kwale, for example, MCAs had threatened to impeach Governor Salim Mvurya, but backed down once he released Sh40 million worth of blocked bursary funds that they wanted.

And in Laikipia, impeachment threats were made but the motion was no sooner filed than it was withdrawn.

Nothing in county politics shows a causal link between the success of a governor and the majority that his party commands in the county assembly.

MAJORITY LEADER

Why should it make a difference, then, that the governor is an independent?

For all that though, there is some reason to worry: Independents may affect how county assemblies and Parliament do business, but that has to do with the design of our institutions, not with the independents themselves.

Start with how independents might complicate the selection of assembly leaders.

Parliament and county assemblies must have a Majority Leader, defined as the leader “of the largest party or coalition of parties” in the House.

Suppose neither of the leading coalitions is able to choose a Majority Leader without the support of the independents?

Independents don’t qualify as ‘party’ or ‘coalition of parties’.

However, their vote can decide which coalition provides the majority leader.

PSC APPOINTMENTS

A group that does not qualify to be a party will have settled the question of which party has the most important political office in the House.

There is another ticklish problem. Parliament is required to appoint seven commissioners to the Parliamentary Service Commission: four chosen by the ruling party and three by the opposition.

This congenitally defective provision will create even more legal conundrums if there are a large number of independents.

Here is why. In a presidential system, the party of the president does not always have — and does not need — a majority in Parliament to hold the presidency.

Suppose, for argument’s sake, the President has a minority in Parliament, why should his party have a majority of the positions in the PSC?

Consider now how independents might affect this.

If independents are numerous enough, they could vote with the opposition — even if the opposition are a minority — to deny the ruling party its four positions, a clear breach of the constitution.

PARLIAMENTARY PARTY
These conundrums could be sorted out if the term ‘coalition of parties’ is understood in the way that standing orders treat any informal coalition in the house.

Such a group is termed ‘a parliamentary party’.

Analogously, a group of independents could be a ‘parliamentary party’ and thus defined, would qualify to be part of “a coalition of parties”, making it possible for them to choose a majority leader and to fill positions in the PSC.

However, this changes clear language in the Constitution, a major problem.

An advisory opinion from the Supreme Court is necessary.

IMPORTANT ISSUES
Then there are the appointments that need to be approved by county assemblies and Parliament.

Confirmation votes usually follow partisan lines and instructions from party bosses.

What happens if independents hold out and an appointment cannot, therefore, be approved?

Negatively, this would give independents more power than their numbers warrant, giving them an implicit veto over crucial jobs.

Positively, it would force parties to appoint candidates that could be approved of independents, making such appointments better overall.

There are, then, thorny and important issues to consider if our assemblies should wind up with a large number of independents.

But these are not the issues that you are likely to hear from the commentaries.

Wachira Maina is a constitutional lawyer