Independent candidates (ICs) — candidates who do not belong to any party — are very prominent in the news media. But for many Kenyans, these ICs are a bit of a puzzle.
Not to allow non-party candidates is unusual in a system like ours — where geographical constituencies (or wards) each elect a person to represent them. Most countries that restrict the right to stand to party members have very different electoral systems: Where people vote for lists of candidates put forward by parties.
Voters may be able to express a view, as they vote, about individuals on the list, but their primary vote is for the party. In South Africa national elections, voters vote for a party only, and cannot affect the individual names on the party lists.
Countries have justified excluding independents on the basis of a need to strengthen political parties. This is probably Nigeria’s reason, but in 2015, it changed its Constitution to allow independents.
The Inter-American Court of Human Rights accepted that ICs were justified in Mexico by: “The need to create and strengthen the party system as a response to an historical and political reality; the need to organize efficiently the electoral process in a society of 75 million voters, in which everyone would have the same right to be elected; the need for a system of predominantly public financing to ensure the development of genuine free elections, in equal conditions and the need to monitor efficiently the funds used in the elections….”
Tanzania barred ICs in its Constitution, when the country emerged from one-party rule, at about the same time as Kenya. It was justified on the basis that it was necessary as multi-party democracy was new. And it was related to the relationship between Zanzibar and Mainland Tanzania. A party has to have members from both parts; an IC obviously cannot.
In 2013, the African Court of Human and People’s Rights ruled that Tanzanian’s ban violated the African Charter. It was discriminatory, it violated the freedom of association (which includes the right not to associate) and interfered with the right to participate freely in the government of one’s country. And it did not find the Government’s reasons adequate. Tanzania still does not allow ICs.
THE KENYA CONSTITUTION
The repeal, in 1991, of section 2A of the old Constitution—which limited participation in elections to members of one party, Kanu — was a major victory for democracy activists. But, again like Tanzania, Kenya did not allow ICs after that change. The possibility of standing as a non-party candidate was raised before the Constitution of Kenya Review Commission and included in their 2002 draft, and it appeared in every draft Constitution, as it does in the Constitution adopted in 2010.
But all the constitution-making bodies also wanted to strengthen political parties. They had a vision of nationwide political parties, formed on the basis of policies and ideologies, not of tribalism or other forms of sectarianism. They wanted them to be bodies that shaped national policies, but in a way that reflected the needs of the nation and the input of their members.
They imagined them being a long-term part of the Kenyan scene, bodies of which people were proud to be members, and to which they felt some loyalty.
Institutions that developed coherent policies, in and outside Parliament and county assemblies, offering workable programmes when in office, and workable alternatives when they are not. They probably had in mind countries such as India, the US, Canada and the UK, each of which has two main parties.
All have other parties, but these have identities, philosophies and programmes that give stability to the political scene, and a choice to voters that is not based on ethnicity.
The various constitution drafters in Kenya tried to strengthen parties: They are supposed to be national in nature, democratic and effective, and there is to be a political parties fund. Being elected for a party is supposed to mean something: people who leave the party for which they are elected lose their seats, in theory, and those elected as independents lose their seats if they join a party.
WHY INDEPENDENT CANDIDATES
So what did they think was the role of independent candidates? Partly, there was the question of freedom — not to belong to a party. Another objective was to give people the possibility of participating in the governance of the country without being restricted by the limited imaginations of others, and on the basis of one’s own moral choices, which could be offered to the electorate.
It may be that in some communities concerns are more local, and people would rather have a representative whose commitment is to those concerns rather than to a national party (for which read “leader”).
An individual might want to run on a platform supporting the interests of certain groups identified by religion, language, ethnicity, gender or region. This would be all right, provided he or she did not stir up hatred or promote unreasonable discrimination. But to form a party on one of these bases is unconstitutional.
Mindful, perhaps, of the proverb “Great oaks from little acorns grow” the drafters made it possible for a person to bring out issues and policies without having to have a whole party thinking on the same lines. To form a party is time-consuming (it can take years to register a party to contest elections).
Being an independent could be a trial run for a programme that might become the foundation of a party.
In reality, it has proved hard to stand as any of those sorts of independents envisaged by the drafters.
Though there are far more people standing technically as independents in 2017, very many of them are disappointed aspirants rejected by their previous parties. This reality is indicative of much that is wrong with the Kenyan party system. There is no party loyalty. Parties are not about principles or policies but about personal advantage — of national leaders, and of those wishing to stand for other offices.
The CKRC thought that allowing independents might cut down the number of parties; this has not been so. Last year, the Registrar of Political Parties had registered 65 parties; in May 2017 there are 77.
People wishing to stand as genuine independents have found it hard. The electors do not seem to understand the idea. Women seem to find it particularly hard to be independents: Only three aspirants for the position of county woman representative are independent, and a handful within other groups. Though women complain of the difficulty of being nominated by parties, being “independent” does not seem a solution for them.
The electorate does not think of parties in terms of ideas. Their suspicion of independents seems to be linked to a desire to know to which ethnic lord (few ladies) a candidate has attached him or her-self —for that is what joining a party mostly means. But maybe the large number standing this year —reportedly over 3,700 overall—may get Kenyans used to the idea, even if many of these are not “real” independents. In Malawi independent members have increased to be the single largest group in Parliament.
Surely, we are in serious need of people whose motivation to join politics is not just to attach themselves to ethnic leaders, and to “eat”, but people able and willing to use their own judgment and work for a better Kenya. For many people who have much to offer in the public service of being a legislator, most parties are more of an obstacle than a support.
Genuinely independent members of Parliament or county assemblies might offer a breath of political fresh air.
By JILL COTTRELL GHAI
The author is a Director of Katiba Institute