Floor crossing and party hopping have been hitting the headlines. This piece looks only at floor crossing (only possible for a member of a legislature). Expressions such as “rebels”, “expulsion” and “losing seats” have been prominent.
A vision of a reformed party system
The constitution drafters aimed at a transformation of the party system. The Constitution of Kenya Review Commission’s draft list of national goals, values and principles in 2002 included “Political parties shall observe democratic principles in their internal organization and procedures, respect the rights of others to participate in the political process, and avoid violence and bribery.”
The commission’s image of a political party included their having the function of fostering democratic processes and popular participation in the political process. Parties were to mobilize public opinion and encourage national values and a national outlook. They were to “organize people with similar views and interests for political activities”. They should be means for public opinion to be brought to bear on government policies, and to hold government accountable. And their roles included ensuring that “cohesion and discipline in the conduct of public affairs” were maintained.
Behind this was the idea that political parties should resemble those you find in so-called developed democracies, like the Republican and Democratic parties in the US, Conservatives, Labour and Liberal-Democrats in the UK, and so on. These, and most other parties in the same countries, are identified with specific approaches to national, and world, problems. They have ideologies and ideas. For elections, they publish plans for what they would do in office. These will be (generally) consistent with their overall approaches, covering, for the main parties, national policies and concrete proposals on a wide range of national and international issues.
There was an assumption by constitution makers that you are more likely to get policies —and action—out of parties that have some stability, with thinkers, and an accumulation of experience.
The CKRC’s explicit vision disappeared, but underlies provisions in the current Constitution. Parties must have a “national character”, including not being “founded on a religious, linguistic, racial, ethnic, gender or regional basis”. They must have internal democracy, and promote national unity, as well as respecting human rights, and everyone’s right to participate in politics. And they must not engage in or encourage violence, or have any paramilitary force, encourage hatred of others, practise corruption, or use public resources, unless the law allows.
Constitutional mechanisms to encourage democratic, policy focussed, inclusive, non-tribalistic and effective parties include ensuring fair use of broadcasting time, and the allocation of public money to parties to discourage corruption and misuse of other public resources and audit of parties.
Floor crossing rules
The idea of party discipline, to maintain the stability of parties, and consistency of practice in line with policies and ideologies, is supported by Article 103 of the Constitution. This says that a member of either house of Parliament who was elected for a party loses the seat if he or she “resigns from that party or is deemed to have resigned”. A person elected as an independent loses their seat on joining a party.
The main underlying idea of provisions like this is that a person who stood for election apparently committed to a party and its policies should not be able to abandon those commitments without seeking support for the people who elected him or her.
There is some unreality to this in the Kenyan situation. Policies do not seem important. True, parties have elections manifestoes. How many people read them (including candidates)? In 2013 a satirical commentator (Waga Odongo) in the Daily Nation observed “There is a chasm between the Kenya we live in and the Kenya with projects and schemes that politicians constantly promise us on slideshows. Nobody should believe a word that was said or what will happen in these manifestoes.”
Sometimes it seems that all parties represent is the interests of their leaders. But, if a person was elected because she supported Raila, should she retain the seat if now she is committed to supporting Uhuru? What value did the votes of the majority have? If people voted for CORD they voted for another view and voice in Parliament than that of Jubilee.
Of course, if all the electorate really expects from MPs is the CDF properly spent, it hardly matters what party they belong to. But the role of MPs under the Constitution is not to spend the CDF but to work hard at ensuring that good laws are passed, the government is accountable, and policies make sense.
Other countries’ efforts
Various countries have tried to curb floor crossing by legislators (a 2007 study showed laws in 41 countries, mostly newer democracies). The case for banning it seems particularly strong in countries where voters vote for a party list, and not for a particular person to represent their area. In such systems, disqualifying the MP does not lead to a by-election: the next on the list takes the seat.
But laws on floor crossing are not found only in countries with such election systems. India, Nigeria, Malawi and Singapore are countries with single member constituency systems but with anti-defection laws (as the Indians call them).
Floor-crossing is less of an issue than it would have been if those MPs in Naivasha in 2010 had not changed our system to a presidential one. In a parliamentary system (like India) floor crossing to the opposition may lead to a vote of no confidence against the government. In Kenya, now, the President cannot be removed by a simple majority of MPs. He remains in power unless a rather complex process culminating in a two-thirds majority in the Senate is gone through.
The arguments for and against
In fact, crossing to government, rather than away from it, is the current issue. One motive for anti-floor crossing laws is precisely to discourage tendencies towards a one-party state that defection to government may reflect. Other arguments in favour point to need for party discipline, and fears of bribery, and that rampant floor-crossing undermines voters’ faith in the system.
Arguments against anti-floor crossing laws include MP’s rights of conscience, the desirability of encouraging internal party debate (rather than squashing it by the threat of expulsion) as well the expense of by-elections.
How is a seat lost?
Under the Political Parties Act, a party member (not just an MP) who joins another party (except through a merger or coalition of parties), is treated as having resigned. The exception for mergers is very recent. A member who “promotes the ideology, interests or policies of another party” is also to be assumed to have resigned. The party abandoned must tell the Registrar of Political Parties within seven days (this time limit was added in July), and the Registrar must remove the person from the party membership list. Then, presumably, if an MP, the person loses his or her seat—under the Constitution.
But when CORD recently wrote to the Registrar, it seems they were saying the members were expelled, not “deemed to have resigned”. Expulsion from a party should occur only if the member infringes the party’s constitution and after a fair hearing within the party. But assumed resignation and expulsion seem to be treated as the same thing.
The Registrar has developed procedures: not only the party, but anyone may complain that a member should be treated as having resigned. A court case might lead to the same result.
Incidentally, our rules about defection do not seem to apply to Governors and Members of County Assemblies .
The old Constitution also provided that party defectors would lose their seats. But it seems this never happened. Parties may have been afraid of admitting they had lost members, or were perhaps fearful of court actions (common in other countries).
The situation —and the law—is a bit confusing.
JILL COTTRELL GHAI
The author is a Director at the Katiba Institute.