December 3, 2012 Mad Hatter

The Inadequacy of Kenya’s Coalition Law

HARMONIZED_DRAFT_CONSTITUTION_2009

“While Kenyan politics completely lacks any ideological deviation, and it would have been thought that such would facilitate easy cooperation, individual egos are central to political quest that attempting to build a lasting coalition is like attempting to standardize personal interests.”

 

The Kenya Constitution 2010, immaculately promulgated on the 27th August 2010 was a culmination of a two decade struggle heavily informed by a quest for good governance. Indeed, a bulk of provisions in the constitution targeted to curb imperfections in our past systems.

The Constitution dedicated a great deal of effort in attempting to provide a streamlined structure that was meant to reshape our political and governance mechanisms. Consequently it has provisions on matters of integrity, representation and party disciplines.

A new injection in the Kenyan Political landscape is the requirement in the Constitution that a winning Presidential candidate must obtain fifty plus one percent of cast votes and an additional requirement of at last 25% of votes in more than half the counties.

This requirements coupled with current political realities have fueled talk of political coalitions in the country. Indeed, cooperative politics is not an entirely new concept in Kenya. In 1964 the first political merger in Kenya occurred between KANU and KADU. This was indeed a tougher merger in my opinion since there was a clear ideology and constituency difference between the two. KADU sought federalism while KANU advocated for a unitary state. KADU drew its support from communities eclipsed by the major ones in KANU. Equally, in the post independent politics, politicians seem to have had clear opinions on the path the nation should take.

There have been subsequent cooperation, some amphibious and incapable of being classified as either coalitions or mergers. The uniqueness of our cooperative politics is not the only peculiar thing, but some of these unities have brought together truly strange bedfellows. For instance, after 1997, it was unimaginable that Raila Odinga’s NDP could merge with KANU with the shadow of suspicion looming in the past. NARC was a merger of various political parties and so was PNU.

Then there is the reality of the Grand Coalition Government whose term will come to an end in 2013. I am incapable of discerning whether it is a coalition from any sense whatsoever or union unique to our Kenyan circumstances.

Several political coalitions are rumored to be in the offing. Yesterday, Munyori Buku, Uhuru Kenyatta’s Spokesperson intimated that a ‘deal’ had been finalized between TNA and URP. While the statement was later hurriedly rescinded, it is not lost on observers that URP merely wanted to make the announcement a juicy affair.

On other frontiers, the Wiper Democratic Movement and the United Democratic front has also been engaged in negotiations. ODM and the Wiper party representatives have also met and deliberated.

While these deliberations are fine, and in a way welcome to avoid polarity in our politics, The Country has to interrogate the frameworks, legal and otherwise within which the coalitions are being concluded.

In particular, there are serious questions as to the implication of these pacts on, the stability of consequent government, other laws inclusive of the Constitution and the guarantee to respective Coalition partners.

Apparently, informed by the dishonored pact between NARC bigwigs, the drafters of The Political Parties Act 2011 provided in Article 10 that political parties may form a Coalition either before or after the election. The coalition agreement must be deposited by the Registrar of the political parties at least three months before the election or 21 days after the signing if it is an after election pact.

The Act also contemplates political mergers but this option is not viable as a merger would necessarily dissolve the individual parties necessitating the lengthy registration requirements.

While the depositing of the pacts with the registrar is intended to give some sort of legitimacy to the agreement, there are extensive deficiencies in the law and practice of coalition building in Kenya.

These deficiencies include: Enforcement mechanisms, Implication on other laws of the country and regard to political realities around the touted coalition building.

The Enforcement Mechanism:

This is necessary to assure the confidence of the partners, assure the stability of the consequent government and the general political stability in the country.

The mechanisms contemplated in the law include the fact that the coalition agreement shall be deposited with the registrar of the political parties and The Political Parties Dispute Tribunal established under article 39 of The Political Parties Act.

The tribunal is a quasi judicial body with members appointed by the Judicial Service Commission. The members are a chair, required to have such qualifications as a High Judge and four other advocates of the High Court all serving on a part time basis.

As such, the resolution mechanism is temporary, perhaps so proposed with an assumption that political wrangles cannot be in existent all year round.

The Tribunal however is only secondary to internal party dispute resolution mechanism. The Tribunal is empowered to determine disputes between members of a political party, between a member and a party, between political parties, coalition parties and appeals from decisions of the registrar.

Appeals shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and Supreme Court.

The enabling statute fails to give the exact reliefs that the tribunal may render. Perhaps, this is since relief in political disagreement is rather indeterminate.

The reality of practical politics makes the tribunal but a mediation committee. I am unable to foresee any possibility that the tribunal can make a determination adverse to the interest of one party, say in a coalition and have that determination respected.

This is since, perhaps unlike in contract law, where parties have determinate obligations mutually agreed and enforceable, political pacts are based on interest and change of interest will necessarily mean change of terms of engagement.

Being an association of trust, the tribunal lacks a logical mandate to ‘determine’. And if it does, it lacks a mechanism to ensure that its determination is upheld.

For instance, if a Coalition partner was to sue claiming that their share of positions have not been met, and in the opinion of the tribunal indeed that pre-agreed has not been met, and the tribunal issues an order that it be met, and the coalition partner refuses to meet that share, what would follow.

The law provides that such orders be enforced like court orders, but I am unable to imagine a party official being arrested that as a coalition partner it has not given the agreed share to its colleague.

While someone else would argue that in such a scenario the parties would find recourse in political tact such as non cooperation, what happens if the other parties in parliament support the wronging partner?   This leaves the affected partner without any assured security.

The appeal process suggests that partners may seek redress in courts. This provides dual risks. While the litigation progresses, government programs may be ground and the major risk is the politicization of the court system.

Political feuds should rarely find their way into courts if public confidence in the judicial system is to be found.

In democracies that have had successful coalition building, recourse mechanisms heavily lie in the internal party organs.

While indeed comparing a country like Kenya and say Germany provides real difficult, a firm internal structure, respected by all partners would be the only sure guarantee. In other words, a political disagreement can only be resolved effectively by an agreement between disagreeing partners and not directives of an external tribunal.

The political culture in Kenya does not offer any reason to the fact that parties can build such capacity.  Let us regard TNA and URP for instance, the parties themselves are infant barely with recognizable structures. They neither have elected officials, or for that matter officials who command member respect.

I wonder whether Ole Kaparo can sit down with Sakaja to solve a party dispute. This lack of internal instruments poses a truly great risk.

Interestingly, The Law actually requires the parties themselves to determine the procedure of appeal to the tribunal. This would mean that all parties would have to agree that they are incapable of resolving the problem. What happens if one party feels so and the other contests otherwise?

Would it have been prudent for the law to determine when a dispute shall be seen as incapable of being resolved by party mechanisms to avoid the possibility of deliberate delay by one partner.

Implication on Other Laws

The effect of coalition would be to foster cooperation, in our case I content that the main aim of the coalition building is to obtain political power.

The law but states that political agreement shall be deposited with the registrar of political parties; this is an extra ordinary assumptive provision.

It assumes that the agreement as drafted shall be in compliance of all law and legal provision. The law does not require the Registrar to interrogate the provisions of the agreement; it does not require disclosure of the contents of the agreement nor does it state what happens if the contents conflict or develop a law.

For example after the 2005 referendum, calendars in the country displayed speculative position sharing agreements. Some of the agreements showed two deputy presidents, two deputy prime ministers and what have you.

This never materialized, but what happens if such a scenario plays out in the current situation. The Constitution contemplates only a single position of a deputy president, what if in the seclusion of the agreement, partners agreed to create a second position of a person designated deputy president.

I do not see any law that contemplates such a situation, would the MOU be capable of restructuring legally established government structures? Would it be necessary that such an MOU be given a force law through an act of parliament? Would it be blindly adopted?

The Political Parties Act requires that the agreement indicate modes of coalition dissolution. This is indeed true, but what would be the effect of that dissolution on the Presidency for instance? What happens if the parties say that dissolution of the coalition means dissolution of government?

Neither does the constitution nor any other law contemplate exit of a president through such a mechanism.

Consider the National Accord that establishes the current government, it was entrenched in the constitution with effect that dissolution of coalition means dissolution of government.

These coalition provisions also assume a lasting internal party harmony. What would be the effect, if a political party suspends its head who for instance is a deputy president and claim his removal from office, or seek their substitution because it is essentially a coalition of parties and not individual candidates?

There needed to be clear legal provisions beyond coalition agreements. In Germany for instance, coalitions notwithstanding, it requires a vote of no confidence, only by the Bundestag to replace the chancellor.

Political Realities

Successful coalitions would ideally be built around policy issues as this is much a longer goal than the need to acquire power.

For instance, the World Bank lists Kenya’s Water Sector reforms as one of the most successful coalitions in the entire world. According to the World Bank, “Because of a clear focus on the major issues in the country’s water sector, the political momentum created with the incoming government in 2003, and the renewed interest in water by the government’s development partners, a coalition coalesced around reforms.

The above illustrates the need for a consultative, well thought process. In the case of a political pact, in the Kenyan scenario, the main stakeholders would be the electorate and their attending interest.

The reality of our politics is that constituencies are pawns in political bargains, rarely is there true regard to varied interest.

While Kenyan politics completely lacks any ideological deviation, and it would have been thought that such would facilitate easy cooperation, individual egos are central to political quest that attempting to build a lasting coalition is like attempting to standardize personal interests.

We can safely assume that policy as a matter of grounds for Kenyan cooperative politics is nonexistent. And we remain with the fact of power balance.

While in the drafts that will be deposited at the Registrar’s desk there is likelihood of beautifully curved policies, the key thing is position haring.

One thing is clear though; there is only one assured position; that of Deputy President. The other positions are speculative, out of effective control of cooperating partners. Would failure of delivering such positions as speaker, majority leader be a breach of the coalition?

A position such as speaker is dependent on individual members of parliament casting votes in secrete. It is impossible to assure that elected MPs, some unknown to party leaders, some in parties for convenience rather than principle would remain faithful to these pacts.

And by the way, giving binding oaths is illegal in Kenya.

We need to serious think about these realities as a nation if we are at any chance anticipating a stable political environment.

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