What electoral system shall State use in 2012 polls?

Koki Muli

 

An electoral system generally means the method through which votes are translated into seats. There are three families of electoral systems: 1). Plurality-majority systems – which has two main variations: Block vote and first-past-the-post (FPTP). The FPTP system is mainly based on single member constituencies or electoral districts, 2). Proportional representation (PR), based on political parties lists, and, 3). A mix of 1 and 2; known as mixed member proportional representation (MMPR).

In most countries that use PR systems, direct elections are conducted and the votes are aggregated and seats shared proportionately to the number of total votes won by political parties. This is aimed at ensuring that PR promotes fair representation and equality of the vote. For example, in Sudan, Germany and South Africa, all the votes cast in favour of the losing candidates will count towards supporting political parties lists. This ensures fair and equitable representation.

Kenya inherited from Britain, FPTP electoral system, where the candidate with the highest number of votes wins, irrespective of percentage of votes won. This coupled with our history of manipulating electoral boundaries for political gain (gerrymandering) resulted in unfair and disproportionate representation. Therefore, the necessity for reforms, of the electoral system and delimitation of electoral boundaries. The electoral system should ensure fair and equitable representation, equality of the vote and no wastage of votes. Delimitation of electoral boundaries must take into account population/demography, geography, status of areas (urban/cities/rural), infrastructure, communication means, community of interests, economic, social and cultural factors.

The Constitution provides for FPTP electoral system based on 290 constituencies. Also, newly introduced, are second-round voting and the requirement that the presidential candidate must win more than 50 per cent of votes cast nationally and 25 per cent of votes cast in more than half of the 47 Counties. This means, if none of the presidential candidates manages the win, then a second round in the form of a run-off between the number one and two or the first two candidates who tie in an election shall be conducted within 30 days (Article 138).

Some form of “proportional representation” is also provided. However, there is little process difference between the new PR system under Article 90 and the old system of party nominations.  The new ‘PR system’ is fairly simple; there will be no need for ballot papers because seats will be calculated and shared between participating political parties proportionate to the number of seats each party gets in Parliament and county assemblies.

The Kenyan system, while boosting participation of political parties in the competition, does not actually respect the principle of equality of the vote. This is because the main elections are fought and won on the basis of first-past-the-post electoral system. As we prepare to apply the new electoral system, there is need to design new ways to enhance democracy and promote the concepts of universal suffrage and equality of vote. The above scenario already contradicts the provisions of the new Constitution Article 81(d), which provides, as a principle, the electoral system, must comply with universal suffrage and equality of the vote.

Does this mean that it will be necessary to amend Article 81 to introduce another more fairer and representative electoral system? NO. A careful reading of Article 81, which provides for the electoral system; shows that, it will not be necessary to amend that section to address the challenge of implementing the 2/3-gender principle. However, amendments are required for Articles 97 and 98, which specify the actual distribution of seats in the National Assembly and Senate. Should Parliament decide to amend the Constitution; all they need, is to replace the wordings in Articles 97 and 98 with Article 177; remove the numbers allocations and allow Article 81 to do the trick for Kenya.

 

The writer is an elections and constitutional law expert and lecturer, Southern Eastern University College