Review the Constitution and strengthen devolution if we are to resolve problems

The idea of reviewing the 2010 Constitution to address the challenges Kenya is facing today is not one that many people will entertain because they think the aim is to create positions for losing groups.

No. Review is required to strengthen devolution as a solution to the political challenges we face.

Review is also required to allow for changes in the manner in which we vote.

Our elections tend to create losers and winners.

DIVISION

This in turn polarises the country along ethnic blocs that are of almost equal size and numbers. This is why all our elections are too close to call.

These thoughts are based on what has been tried and tested with a view to creating stability in deeply divided societies.

A Dutch political scientist Arend Lijphart, who has lived all his adult life in America writing on these issues, has outlined what is required to have stability in societies where people are divided along ethnic, religious, ideological, and even economic lines.

In some of his books and especially, Politics of Accommodation, and, Democracy in Plural Societies, Prof Lijphart comes up with a concept of “consensus democracy” as appropriate for creating stability in societies such as Kenya.

VIOLENCE
But a close look at his “consensus democracy” reveals that it is not any different from Kenya’s version of “negotiated democracy”.

The only difference is that the Dutchman’s form of democracy works in areas where people have a culture to move things by consensus.

Kenya does not have this culture. Violence precedes acts of consensus.

Consensus societies are less aggressive in character. You find people kinder, gentler and even more tolerant to each other.

Prof Lijphart’s “consensus democracy” provides stability because it is placed on four institutions to make the society strong, inclusive, and tolerant.

CHECKS AND BALANCES

These institutions include establishing of a two-chamber Parliament meant to enable each House to check and balance the other.

If any of the Houses make bad laws, the other will certainly check and decline to adopt these laws.

The second institution is a federal system of government. Closer to home this would mean devolution of power.

This is preferred because it enables the federal or even the devolved units to govern themselves in line with their aspirations.

Every region is seen as unique. Its challenges are viewed as different from others.

REPRESENTATION

Therefore, each region is let to go on its own but within the boundaries established under the Constitution.

Third is an inclusive electoral system or proportional representation.

Prof Lijphart specifically identifies the system of proportional representation as appropriate for divided societies.

It is much more inclusive than the system in which people vote for individuals.

ETHNICITY

It is better than the system where the person who has the most votes – not absolute majority – is declared the winner to represent a geographical constituency (like Members of Parliament and Members of County Assemblies in Kenya), or the case of presidential election in Kenya or even the case of governors, senators, and women representatives who are elected to represent a county each.

The system we practice in Kenya is ill-advised for societies divided along ethnic lines.

It leads to broad and indefinite exclusion of some groups from power. The “winner takes all” while the “loser loses all”.

The proportional representation electoral system comes in many varieties.

PARLIAMENT

But important among all these varieties is that people vote for political parties and not individuals.

There are instances, of course, where parties present a list of candidates to be voted for but these do not represent geographical constituencies; they represent the interests of the parties nominating them.

Proportional representation also leads to a parliamentary system of government.

This is also a system in which the leader is elected within parliament.

Voters do not elect the leader; parties in Parliament do so and the leader of the party with the majority is usually elected as the country’s leader. 

JUDICIARY

This system ensures that only a broad majority can control policy-making.

But even when a majority party assumes power, its ability to step on the toes of the minority is limited by checks established for the purpose.

The difference between parliamentary and presidential system practiced in Kenya is a subject that requires a detailed look in this column another day.

The fourth factor responsible for stability under “consensus democracy” is a strong Judiciary and the right of minority to veto the majority.

EXECUTIVE
Let us now turn to examining Kenya using the lenses of this Dutch-born political scientist whose ideas have been tried and tested in many places, including India, Canada and Belgium.

The first thing to recognise is that there is a political crisis in Kenya.

The crisis is not legal but has been brought about by the nature of our Constitution that provides for a presidential system yet we are divided along ethnic and other parochial lines.

Using the above framework, we can simply say that we took the wrong advice on the structure of the Executive.

We should have gone for a parliamentary system because a presidential system is ill-advised for a society like ours.

INCLUSIVITY
The presidential system is a “winner take all” and the “loser lose all” system.

The Constitution allows a winning presidential candidate to have 50 per cent plus one vote — a provision that was expected to make the system inclusive.

However, this misses the fact that we vote as ethnic blocs and that there are over 42 ethnic groups. This is a fact.

Another fact is that five groups in Kenya constitute 65 per cent of the population. These are the Kikuyu, Luhya, Luo, Kalenjin and the Kamba.

Another three — the Meru, Kisii, and the Mijikenda — constitute 16 per cent of the population.

The Kenyan-Somalis are also a numerically relevant group. 

ELECTORAL SYSTEM

These numbers mean that any three large groups, combined with one of the three relatively large groups, can win 50 per cent plus one vote in a presidential election.

They can lock out over 30 other groups if they mobilise to their side a significant share of votes from one or two other groups. This is a fact.

Kenya is using a flawed electoral system.

This system can lead to groups locking out the rest of the country in the presidential election for an indefinite period of time.

STABILITY

A revision of the Constitution to allow for broader inclusion of groups is important for this reason.

But this of course requires Kenyans to recognise as a fact that tribe is the first point of call when it comes to elections.

On the basis of Prof Lijphart’s framework above, Kenya’s institutional arrangements ought to be altered to suit what is required to create stability in a divided society.

We have to alter the electoral system to provide for Proportional Representation or Mixed Member Proportional Representation alongside a parliamentary system of government.

As argued above, this is one important institution that helps divided societies to stabilise.

But we opted for a majoritarian system, which creates more problems than it addresses.

DEVOLUTION
Kenya has done well with other institutional arrangements.

Devolution of power and resources to the counties is thus far a success. In fact, we have done better than expected.

There were bureaucrats in the previous government prior to 2013 who prayed hard for devolution to fail.

But devolution has won the hearts of many in rural Kenya and remains the centrepiece of our Constitution.

But devolution does not have champions at the national level.

SENATE

The Senate should have played the role of representing counties but experience thus far shows that the senators are in competition with governors.

They do not defend devolution. In fact, the role of the Senate was taken over by the Council of Governors as an unintended consequence.

The Constitution will have to be altered to provide for proper linkages between the counties and the Senate among others.

All in all, there are three things to address to prevent recurrence of political crisis every electoral cycle.

The presidential system of government will require alterations to allow one with broader inclusion of many groups.

OPTIONS

One option may include increasing the threshold of a winning presidential candidate to above 65 per cent so that the successful candidate is one who is acceptable by many groups.

The 50 per cent plus one vote is a bar set so low that anyone mobilising a few groups can jump.

The other option is to have a parliamentary system. This will mean that we do not vote for a president.

Parliament will choose the leader from among the parties with the majority.

NATIONAL ASSEMBLY
The second issue to address is the electoral system. What we have at present is responsible for many political conflicts.

We vote for individuals and not political parties.

We have to opt for a proportional representation or mixed member proportional representation.

Finally devolution must be revamped, including alterations to allow the Senate to have direct links with counties and strengthen law-making and its ability to check the National Assembly.

Prof Kanyinga is based at the Institute for Development Studies University of Nairobi; [email protected]