Fixing coalition mischiefs: law at the service of politics

Fixing coalition mischiefs: law at the service of politics

By Kabakua Mbogori

While the idea of organizing people around particular interests is ancient, political parties as modern vehicles of ordering politics are considered to have emerged in the late 18th Century. The Conservative party in the United Kingdom, which emerged around that time, is one of the oldest parties in the world. 

In Kenya, political parties were proscribed by the colonial regime. Mass mobilization against colonialism took place mainly through trade union organizations. It was after the Lancaster Conference in the early 1960s that KANU and KADU were formed. Shortly thereafter, in 1964, KADU dissolved and its members joined KANU. 

Until 1966 when irreconcilable ideological disputes drove Jomo Kenyatta and Jaramogi Oginga Odinga – the president and the vice-president respectively – to opposite political trajectories, Kenya was a one party state under KANU. The Kenya Peoples Union (KPU) – under the leadership of Jaramogi – appeared until 1969 when it was banned. Kenya became a one party state from this time until 1991 when political pluralism was re-introduced. 

In between, the constitution was amended through the introduction of Section 2A to legitimize the single party experiment. Persistent agitation by pro-democracy groups led to the repeal of Section 2A and Kenya returned to multi-party politics. Coalition politics in Kenya is therefore a fairly recent phenomenon which can be traced to 2002 when the country saw its first ever coalition government.  

Philosophy of coalitions 

World over, the foremost concern of political parties is capturing state power. Parties are the standard vehicles through which people acquire government power. A political party may seek to achieve its power-acquisition objectives as a single entity, or it can combine forces with another party or parties to form a coalition of parties. Scholars have theorized that parties come together for two main reasons. 

First, the process of acquiring government is tasking. This means that by combining their synergies, two or more parties would make that process much easier. Upon electoral victory, the coalition would then share the spoils of government. Most coalitions in Africa fall under this category. The main motive behind pre-election coalitions in most African states is distribution of cabinet portfolios. Kenya falls squarely under this bracket. 

Before endorsing a coalition agreement, a typical coalition partner in Kenya will want to know the number of posts assigned to them in cabinet, Parliament, parastatals and/or the diplomatic world. The second version of coalitions is those that are formed based on policy orientation. Here, the main driving force is shared policy goals between two or more parties. These kinds of coalitions are rare to find in Africa. 

Political Deceit

We have heard it said often that the constant phenomenon of Kenyan politics is betrayal. It is rare to find an honest politician in Kenya. And if you thought the mwananchi is the only victim of political deception schemes, then you are mistaken; Kenyan politicians dupe one another without batting an eyelid. This vice is pervasive particularly during pre-election coalition building. I cannot think of a political coalition in Kenya that was not built on the quicksands of lies and deception. 

The recent enactment of the controversial Political Parties (Amendment Bill) 2021 must be seen against this backdrop. It is an attempt by President Uhuru Kenyatta and the former Prime Minister Raila Odinga to cure the trust deficit that has defined Kenyan politics since the re-introduction of multipartysm in 1992. 

It appears the amendments are intended to facilitate a seamless process of coalition building anchored in the safety of law. The president has settled on Raila as his preferred successor and his party has entered into an arrangement that is clothed in certainty guaranteed by law. Previous coalitions like the NARC of 2002 were unable to hold because they were based on a gentleman’s agreement which was not faithfully executed by the parties upon election victory.   

Initial law reform

Until 2011 when the Political Parties Act was enacted, political parties in Kenya were registered and regulated under the Societies Act Cap 108. Under this legal regime, parties were bundled together with clubs, welfare groups and women’s groups. 

The lack of a distinct legal framework for political party formation and management meant that the government did not recognize parties as important organs necessary for the proper functioning of democracy. The eventual enactment of a framework law on political party management in 2011 – The Political Parties Act – was therefore a welcome development. 

The Act defines a coalition and stipulates the manner of its formation. A coalition is defined at Section 10 as an alliance of two or more political parties formed for the purpose of pursuing a common goal and is governed by a written agreement deposited with the Registrar

Further, a coalition may be formed by  two or more parties before or after an election. In addition, the Act requires that the agreement upon which a coalition is founded be deposited with the registrar of political parties. 

Before the 2021 amendments were introduced, a pre-election coalition agreement had to be deposited with the registrar three months before elections. This period has been extended to four months. The contents of a coalition agreement are laid out in the Third Schedule of the Act and includes, inter alia, adherence to the rules and procedures of the political parties relating to the formation of coalitions; ratification by the governing body of the political parties entering into the coalition; member parties, policies and objectives of the coalition; formula for sharing of positions in the coalition; and the formula for sharing of funds from the Political Party Fund, among other things. 

Taken together, these provisions seek to inject trust and confidence in coalition building. Whether or not the Act has succeeded in improving the management of the affairs of coalitions is up for debate. There has been only one coalition government since the enactment of the Act in 2011 – the government formed when the National Alliance Party (TNA) and the United Republican Party (URP) came together in 2013. 

There was a notable stability of government during that period but I’d be reluctant to ascribe the stability to the 2011 political parties’ law. Given the disharmony that has visited the second term of the Jubilee regime, a more plausible rationale for the stability witnessed in the first term would perhaps be that the president was constrained by re-election incentives and could not muddy the waters. He would not have lost power had the coalition not held together nonetheless.

Controversial amendments

From the several amendments contained in the controversial Political Parties (Amendment) Act of 2021, two things stand out. First, the amendments introduce the novel concept of a coalition political party. Second is the concept of corporate membership to a political party. While the amendment Act brings in other things such as a new formula for distribution of political parties fund, and new timelines for depositing coalition agreements with the registrar, it is clear to see the main thrust behind its enactment is to fill in a gap in the complex puzzle of the Uhuru succession matrix. 

Under the amended law, a coalition may now be registered as a political party. Furthermore, it is now possible for a registered political party to become a corporate member of another political party. This provision was designed with the mega coalition between the president’s and Raila’s parties in mind. 

An arrangement that makes it possible for political parties to join a coalition party while retaining their separate legal identities would be an exciting proposition. This was the case with the NARC coalition of 2002, only that NARC was not defined in statute. NARC was registered as a coalition political party and all its affiliates joined as corporate members and not as individual members through a Memorandum of understanding (MoU). 

Even so, it didn’t take long before the coalition imploded upon forming government. There was incessant wrangling, dysfunction and eventual collapse of the coalition. The collapse was attributed to the alleged failure by President Kibaki to honor the contents of a pre-election Memorandum of Understanding (MoU) upon which the coalition was founded. 

Having been elected on NARC ticket, the LDP/Raila-allied MPs could not legally defect to their affiliated parties without losing their parliamentary seats. It was a dooms-day scenario and disgruntled members had no choice but to hang in in a cruel marriage until the end of the parliamentary term. 

The recently passed amendments to the political parties Act appear to have been conceived out of genuine apprehension of the recurrence of the NARC scenario. At the very least, those managing the president’s succession appear keen to avoid similar problems in a likely coalition government involving the president and Raila Odinga. With the amended law now in place, it will be possible for affiliate party members to withdraw their support in the event of coalition disagreement(s) without adverse consequences.

Furthermore, the affiliates’ share of the political parties fund owed by the coalition party is now guaranteed. If nothing else, these amendments disclose one thing: that the president’s camp is not willing to rely on Raila’s goodwill to secure their interests in a likely coalition government. Still, sustainability of coalition governments in presidential systems depends largely on the president’s goodwill. Once elected into office, a mischievous president could choose to ignore the coalition agreement given the enormous constitutional powers the president enjoys in a presidential system.

What about deputy president William Ruto and the motive behind his spirited opposition to the amendments? Like his nemesis, DP Ruto was also inspired by selfish calculations. In his estimation, he will be the next president of Kenya after Uhuru Kenyatta. Ruto believes he has enough muscle to take the presidency on a monolithic UDA party ticket. He has lately opposed anything and everything that sought to dilute presidential powers under the 2010 constitution. His opposition to the Building Bridges Initiative (BBI) must be seen against this backdrop. In his scheme of things, Ruto does not see the need to get into a coalition arrangement when he can have the entire government all for himself.  

Raila’s enthusiastic support for the amendments must be seen as part of his never-ending schemes to ascend to the presidency. At this rate he must be careful about the things being thrown to him to endorse or else he ends up a hostage president in the event he wins the upcoming elections. Uhuru’s men appear bent on exploiting Baba’s obvious desperation for the presidency to get whatever they want. While no one can take Raila’s progressive credentials away from him, many people believe the man can auction his soul to ascend to power, and he appears determined to succeed Uhuru at all costs.   ( 

fmbogori1@gmail.com

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