Battle over parties’ Bill and twisted history of pre-election amendments

Parliament in session. [Elvis Ogina,Standard]

The battle in the National Assembly that resulted in changes to the political parties law was a spectacular show of political rivalry. Throughout our history, electoral rules have been changed for various reasons, including giving one party or person an upper hand.

In June 1966, the Constitution was amended ostensibly to kick out members of Jaramogi Oginga Odinga’s Kenya People’s Union from Parliament after they defected from Kanu. A decade later, another amendment was made to allow President Jomo Kenyatta’s ally, Paul Ngei, to run for office despite being found guilty of an election offence. These changes were made for political expediency rather than the public good.

A closer look at Kenya’s past elections reveals a swing between progressive and retrogressive amendments that often dictate the socio-economic and political trajectory of the country, including the possibility of political instability.

Apart from the reintroduction of multiparty democracy in the early ‘90s, the other significant pre-election change happened through the Inter-Parties Parliamentary Group (IPPG) framework which brought together government and political parties to the negotiation table to ensure a level playing electoral field. These amendments included allowing the opposition to nominate members of the electoral body, the repeal of undemocratic laws such as detention without trial and some public order provisions that stifled opposition mobilisation and assembly.

Although there were some flaws during the subsequent elections that year, it was largely peaceful apart from ethnically motivated violence in Likoni, Mombasa, and some areas of Kisii. Though Kanu won 40 per cent of the vote, it got a narrow parliamentary majority of 113 against the opposition parties’ 110.

The IPPG framework held until the 2002 General Election, resulting in a largely peaceful election and a Mwai Kibaki win over Kanu’s Uhuru Kenyatta. A smooth transition followed because of the confidence of all parties in the election’s body and no subversion of the law and process through legislative manoeuvring.

The Electoral Commission of Kenya (ECK) went on to smoothly carry out the 2005 constitutional referendum which rejected the government-backed draft constitution dubbed ‘Wako draft’.

Before the 2007 elections, President Mwai Kibaki unilaterally replaced the ECK commissioners whose tenures had been renewed by Moi using the IPPG framework. This raised suspicion among political contenders, resulting in a disputed election and post-election violence that claimed 1,133 lives. Other factors were partisan policing and a judiciary perceived to be beholden to the regime.

Independent Review Committee’s judge Johann Kriegler declared the 2007 elections materially defective and that it was impossible to establish the winner. As part of the National Accord, a bloated government of national unity was formed to accommodate all parties.

After the passage of the new constitution, the interference in elections, especially before elections, never ended. Moreover, Parliament ensured that the provisions on leadership, integrity, and recall of elected officials were lacklustre and unenforceable.

The latest showdown in Parliament on changes of coalition laws before the elections is a continuation of how our political class has continuously operated to obtain and maintain power. They bank on us being sucked into their elite supremacy battles, which diverts focus from crucial issues such as taxation, high inflation, debt, corruption and impunity.

It remains to be seen whether someone will challenge the amendments in the High Court considering that the law creates a character of political parties outside what is contemplated under the Constitution.