Defections could be costly

By WAINAINA NDUNG’U

Two historical scenarios confront Kenya if courts clamp down on Members of Parliament who have been switching parties almost at will.

A decision to seek legal redress by a lobby allied to Prime Minister Raila Odinga may lead to Kenya’s second Little General Election, or a scenario similar to the 1991-1992 where at least six parliamentary seats remained without MPs for a year.
The court prayers by Friends of Raila (Fora) may lead to ordersannulling the parliamentary careers of at least 100 MPs and hence a Little General Election that could also affect Deputy Prime Minister Uhuru Kenyatta and colleague Musalia Mudavadi, as well as presidential candidates Mr Peter Kenneth, Mr William Ruto and Mr Eugene Wamalwa.

In the event of the court granting the orders, Kenya will be staring at a financial crisis after Finance Minister Njeru Githae categorically declared that the Treasury would not fund the by-elections.

Deputy Prime Minister Uhuru Kenyatta (left), who defected from Kanu with some MPs. [PHOTO: MOSES OMUSULA/STANDARD]

In a sign of the explosive drift the court case may take, Fora lawyer Anthony Oluoch yesterday said they would be seeking to have party hoppers bear the cost of the by-elections in the event that their case succeeds.

On Monday, Githae was categorical that only Kangema Constituency — left vacant by the death of Environment Minister John Michuki —by-election would be funded by the Exchequer.

“I am aware that some MPs have been told they risk losing their seats leading to by-elections in their respective constituencies, but I am sorry the Treasury does not have any budget for the purpose,” said the minister.

Some MPs are, however, divided on what would happen if the petition proves successful.

Kinangop MP David Ngugi said there would be no crisis since Parliament can amend the law anytime to prevent paralysis.

“I don’t foresee any trouble since as a Parliament, we can change the law and allow party hopping or vote for money for the by-elections,” said Ngugi, of the Sisi Kwa Sisi party.

Mwea MP Peter Gitau was cautious, saying the political class needed to sit down and agree on a way forward.

“We don’t need to subject Kenyans to numerous by-elections just months before the General Election. We need to come up with an amicable solution,” said Gitau.

Political immorality

But Oluoch, who is leading the case, said: “If we are successful, we will be seeking to have some kind of penalty imposed on the MPs so that they can bear part of the cost, including through forfeiture of benefits.”

To pre-empt the case being slowed down by applications by a battery of lawyers expected to make appearances for MPs enjoined in the suit, Oluoch said they would be asking the court to set a timeframe and set marathon hearings to ensure the issue is not overtaken by events.

The lawyer said they were emboldened by a statement by the Independent Electoral and Boundaries Commission (IEBC) agreeing that the more than 100 MPs identified were in breach of the law. “In a real sense, the IEBC is admitting that there is punishable political immorality,” said Oluoch, who added that Fora intended to make an application to compel the Registrar of Political Parties Lucy Ndung’u to name the said MPs as being in breach of the law.

But Government adviser and African Policy Institute director Prof Patrick Kagwanja said the outcome of the Fora case might lead to increased political polarisation in the country, in Parliament and in political parties thereby leading to widening of fault lines among major political players.

Said Kagwanja: “Bitterness will be exacerbated in the country especially among MPs forced into a punitive election.”

Prof Kagwanja said it would be interesting to see how the case would be proved given that majority of MPs are still technically in the parties that sponsored them to Parliament but have declared intent to support other parties.

The 1966 Little General Election was triggered by the formation of Kenya People’s Union (KPU) led by Raila’s father, the late Jaramogi Oginga Odinga, and the retaliatory legislation engineered by Minister Thomas Joseph Mboya and Attorney-General Charles Njonjo to frustrate the KPU following.

In March 1966, a left-wing faction of the governing party Kanu led by then vice-president Jaramogi instigated mass defection and formed the KPU. Mboya’s response was an amendment of the Constitution to provide that anybody defecting from the party that sponsored him to Parliament should seek a fresh mandate.

It is this law — used to punish the wandering Jaramogi — which 46 years later a lobby associated with his son, Raila, is trying to use to punish his former allies-turned-foes.

The 28 errant MPs in a Parliament of 158 MPs were sent back to their constituencies for a fresh mandate and KPU was only able to win parliamentary seats in Luo Nyanza, giving the party a perception that Mboya and the Kanu rightwing relished.

KPU candidates outside Luo Nyanza, including the KPU vice-chairman and then Kandara MP Bildad Kaggia Mwaganu and Nakuru Town MP and former minister Achieng’ Oneko were badly trounced by newcomer Kanu minions and the party never recovered from the blow until it was proscribed in 1969.

Multiparty democracy

Others losing their seats were KPU Secretary-General Zephania Anyieni (Majoge-Basi), George Fred Oduya (Teso) and former senator Willy Rotich (Baringo North).

On Christmas Day in 1992, Mwai Kibaki and his close associates, including Cabinet minister George Muhoho (Juja) and Assistant minister Njenga Karume (Kiambaa) and John Gachui (Gatanga) called a press conference to announce their exit from Kanu, just a month after the sole ruling party had caved in to pressure to allow multiparty democracy.

Kibaki and his cohorts lost their parliamentary seats and the Government failed to call by-elections probably because a new structure to facilitate multiparty democracy was yet to be worked on. That would have been Kenya’s second Little General Election.