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Constitution of Kenya Review Commission
By Walter O. Oyugi,University of Nairobi
Its common-place to state that a constitution is the supreme law of the land, a fundamental normative fountain from which all other secondary norms such as statutory law, executive orders and ordinances are derived (Encyclopedia of social sciences). But at the same time as one scholar has put it, it's a political manifesto and a "power map"(Duchachek 1973) which suggest therefore that the constitution is the source of legitimate power that various organs of the state exercise; which raises the question: what are the organs of the state? And would the party be one such organ regardless of the nature of societal setting.
Whether or not a political party is a constitutional category, and to what scope, remains a question of value, for political parties are creation of social-political environment within which they are embedded. Whether or not they become a constitutional category largely depends on the circumstances of their origin and socio-political conditions existing at the time of their formation. Whether a party becomes a constitutional organ would tend to be subject to the following conception of party:
1. The classical liberal view that a political party is a societal organisation fully separated from the government and therefore an extra-
2. Political party as an intermediate organisation existing in twilight zone i.e. semi-governmental and semi-societal.
3. Party as an organ of the government system itself as in the totalitarian one-party system (see also Thomas Meyer 1992, Oberreuter 1995).
Whatever the conception of what a party is, the fact remains that the constitution as the basic law of the land shoukL only state in a nutshell the nature of the political system and concomitantly the place of political parties therein. Details about the operation of political parties should be assigned to special statutes.
However, for many centuries, the existence of political parties was treated with a sense of skepticism. As one writer has observed recently (Oberreuter) all states that are currently trying
to realize the goal of a liberal and pluralist democracy have gone through historical phases in which parties were stigmatized as harmful to the unity, greatness and sovereignty of the nation. However, the degree of this skepticism varied from one country to another; which is why the political parties started to establish themselves early in some countries such as England and not in others such as France e.t.c.
And in the case of Africa, political parties emerged initially as protest movements before gradually being transformed into modem type parties especially in the post World War two period. As late as on the eve of independence in many African countries, the practice of multi-party politics was still at its incipient formation and therefore independence was achieved without the practice of multi-party competition having been fully accepted in many countries. Indeed, in some countries, the transition to independence was characterised by deep divisions among the political parties about what should be the nature of the state in the post independence-period. This was at the time when the world was polarized between the forces of liberalism and totalitarianism. With the attainance of independence, the struggle for the control of the state between the ruling party and the opposition ones assumed violent proportions in some countries which ultimately provided a conducive setting for the justification of the single-party phenomenon, either de-facto or de-jure.
The development would overtime influence the nature of the relationship between the ruling party and the state. And where the ruling party became in every sense of the concept the state party, the logical development was the entrenchment of the privileged position of the party into the constitution. Therefore, the party became a constitution category and an important organ, and in that sense, a major component of the "power map".
In a few countries (e.g. Ghana under Nkrumah and Guinea under Sekoutoure) the state and the party were said to have symmetrical identity. In the circumstances, the political orientation implicitly criminalised the emergence of competing political formations. It was, however, a relationship in which the party as the weapon in the hands of those in power became an instrument of state power and not of popular will
On the other hand, there were other states which went through similar experiences but under completely difference institutional configuration. The emergence of praetorian states in sub-Sahara Africa especially from early sixties notably in West Africa (both Francophone and Anglophone) also introduced a political dispensation which completely removed political parties as actors in the political process and by implication as partners in the governance process. Thus, where the party had been a constitutional organ before a coup, the immediate suspension of the constitution rendered the party irrelevant.
Against the foregoing observation, one can now put the Kenyan situation within its proper context. As part of the global system, Kenya has been exposed to situations where at one point the political party was regarded as an extra-govemmental organisation fully separated from it; which is why the independence constitution popularly referred to as the Majimbo constitution did not even make reference to political parties. But with the emergence of a de facto one-party state during 1964-1981 (except for a short period in the late sixties) the ruling party (KANU) emerged as the unchallenged party. But this did not necessitate the transformation of the party into an organ of the state. The situation would remain unchanged even during the period Kenya was a de-jure one-party state (1982-1991).
Its important to note that the establishment of a single party system did not in any way enhance the role of the ruling party in the governance process in a way that might have possibly led to its being incorporated into the structure of power sharing and thereby making it an organ of the "power map". It's against this background that the question whether or not political parties in Kenya should be made organs of the constitution should be discussed.
ON CONSTITUTING THE PARTY (IES)
There are only a few countries in Africa or even in the whole world where the formation (read constitution) of political parties is a constitutional matter. Often there is reference to a political system in operation but beyond that, party matters, especially those relating to electoral process, are dealt with in special statutes.
In countries where the formation and functioning of political parties is extensively covered in the constitution, there are always some underlying reasons. In the case of Germany, the experience under Nazis did have direct bearing on the decision to regulate the conduct of the political parties (Oberreuter) even though the classical German theory of the state dating back to Hegel excluded the party from the state.
The state (as embodied in the monarchy) was that which only belonged to the sphere of the "general interest". Parties were confined to the spheres of the particular. Thus, the identification of the state with the general interest denied the parties any theoretical basis or justification as organs of state and concomitantly as organs of the constitution (see Thesing and Hofmeister). Therefore the struggle to include the party in the constitution was not an easy one for there were defenders of the old order. Moreover, party politicians resisted their rooms for manoeuvre being subjected to tight legal restrictions.
And in Uganda, the constitution devotes eight articles (69-76) to the political system including the party system. The inclusion is not as elaborate as the German one. Nonetheless, the inclusion does, like the German one, have a history and rationale behind it: the problem of multi-
party politics in Uganda between 1962-1970; 1980-1985 and the need to introduce a constitutional solution-at least of transitional nature-to the "problem".
Where does all this leave Kenya? The present Kenyan constitution including the relevant amendments since 1992 recognizes the country as a multiparty democratic state but relegates other pertinent provisions about political parties to the relevant statures such as the one on elections. Parties are required to operate according to the Societies Act and not according to detailed stipulations in the constitution. A number of pertinent questions come to mind readily:
1. What are the weaknesses of the current laws regarding the establishment and management of political parties?
2. Do they necessarily require constitutional accommodation?
3. If yes, how?
The point has-been made above, namely that the Kenyan constitution is silent on matters pertaining to political parties and that as of today political parties operate according to the provision of Societies Act.There are a number of activities which exclusively belong to the domain of political parties and which have not been addressed in the Societies Act Therefore there is a need to separate political parties from other societies which come under the purview of Societies Act, by enacting a law on political parties to address the following issues:
1. Limitation or not, on the number of political parties to formed and why?
2. Whether or not the law should require political parties to put in place mechanisms for internal democratic change of leadership?
3. Structural requirements to be met as conditions for registration (e.g. requirement of regional/ethnic spread)?
4. Circumstances under which a party may be denied registration or be deregistered.
5. Whether mechanisms should be established for the resolutions of inter-
6. Formation of parties on exclusive criteria (e.g. religious parties, racial parties e.t.c)
REGULATING ACTIVITIES OF THE PARTIES
The defining characteristics of parties as political institutions is that they serve (or are candidates to serve) as mechanisms which link the institution of state to those of civil society. In many countries, either the constitution and or the relevant statute allows the parties to operate like representative organs by which society governs itself in a democratized state through
* The right of parliament to control the running of the state
* The interchange of communication between parliament and the public
As one write puts it,"they incorporate society and state in such a way that their feet are firmly planted in society but the heads are in state showing that they function as a multipurpose entity whereby they control the state and at the same time assist the society in solving their problems". (Oberreuter 1995)
Political parties, whether in parliament or not, engage in activities which could have either positive or negative effects on the well being of the state. It is for this reason that the state through its authoritative apparatus-the government- seeks to regulate by law party activities, and conduct in a democratic/democratizing society. And in a pluralist democracy where there is rotation of political parties in government, due care is often taken to ensure that the party in power refrains from patronizing other state apparatus such as the judiciary, bureaucracy e.tc. While it is accepted that parties like other societal institutions must be subjected to the law governing their activities and conduct, the state through its various organs must refrain from involving itself in the competition between parties and must take a neutral position in party politics. This is an essential ingredient of a democratic polity.
Indeed, democracy is both a form of state and a way of life (Thesing 1995, Dahl 1982e.t.c.) Its success hinges, among other things, on the acceptance of the established rules of the game in every human endeavour. This is the challenge facing budding democracies in Africa.
Since the resurrection on multipartyism in Kenya about a decade ago, there has been a lot of hue and cry about the general conduct of political parties as well as the nature of their internal governance. As of now, there are well over forty registered political parties; and the majority of them exist only in name. And for those that are active, the problem of internal governance has persisted over the years which is why there has been a lot of agitation about the need to democratize their internal governance. Indeed, the observations made recently by an Indian NGO (LOK SATTA: Internet source), on the operation of political parties in India is quite reminiscent of the Kenyan situation. They observe:
1. Parties have become arbitrary, autocratic and unaccountable.
2. No healthy and democratic dissent are tolerated by the leadership of the party.
3. Leadership choices at various levels are rarely made by democratic voting. In most parties internal elections are rarely held, or when held are perfunctory. Even members' rolls are not available.
4. Party leadership is utterly unaccountable to its members as well as the public regarding contributions made and expenditure incurred.
On to these one could add the following additional attributes of the Kenyan political parties:
* Party leaders behave as if the party is the property of the leader and therefore would not perceive of a situation in which they would ever cease to be the leaders of the party.
* Parties exist to serve the personal political interest of the leaders who use them as bargaining chips in the struggle for power and material benefit.
* Interference by the party leadership in the party electoral process especially in the nomination of candidates for elective positions at the national and local levels (i.e. nominations for parliamentary and civic elections.)
It would appear that there is urgent need for the problems referred to above to be addressed in the proposed law on political parties. Therefore the constitutional review commission in consultation with interested parties need to come up with modalities of addressing the said concerns.
FINANCING POLITICAL PARTIES: THE LEGAL CONTEXT
The practical issue that this matter raises is: how should the cost of managing political parties in a democracy be financed if the existence of political parties is deemed to be critical to the institutionalization of democracy? This question has been widely discussed in the literature on political parties both in developed and developing countries. The debate has mainly hinged on whether the state should provide financial subvention to political parties and on what criteria or principles?
The usual assumption is that parties on their own cannot manage to raise enough fund to enable them to resist the 'forces of evil' that try to capture them for selfish rather than for public interest. In many countries, political parties source their funds from
• Members contribution/fees.
• Donations from "well wishers".
• Fundraising activities
• Sales from party documents, publications and souvenirs.
The extant literature suggests that these sources have been inadequate while donations from "well wishers" has been the subject of criticism. Its critics contend that it raises questions about the expectation of the donor and the freedom of the recipient(s). Whereas in the developed countries these donors are largely motivated by certain partisan, ideological interests, in the third world countries, their prime motive is to buy favour for ones business or other self-interests however defined.
Because of the central role political parties play in the organization of the legal process of political legitimization and the successful take-over of governmental functions in parliament and through parliament (Meyer modified), there has been pressure in many countries for the state to provide some form of party financing as a way of saving them from being subjected to undue influence of their donors which would be detrimental to their own operational freedom.
But the idea of state financing of parties has not been without its critics who contend that state financing of the party might lead or actually leads to undue influence of the state over the parties and vice-versa; that if the funds are channeled to the central organs of the party, it > could lead to the central organization of the party ignoring grassroot support which is important for intra-party democratic governance and the cultivation of the democratic culture in the body politic.
Granted, many western democracies (and in more recent years even some African countries Uganda, Nigeria) have succumbed to the pressure to finance political parties, but have narrowed the area of support. The actual situation varies from one country to another as the examples given below illustrate.
Since 1966 the state reimburses political parties up to 50% of the total financial requirement for elections with mechanisms put in place to prevent diversion of funds.
Article 29(2) of the constitution specifically empowers parliament to give funds to political parties with the demand that costs of election campaign are revealed. A party must get 3% of the votes to benefit.
Article 116(3d) gives parties specific slots for political broadcasts.
Funding is not a constitutional category but its extended by electoral law of 1985 which states that parties are required to submit a list of expenses and this is used for subsequent auditing of party books relating to such support. But to qualify for reimbursement, a party must get 3% of votes cast in an election. Usually a 30% down payment based on previous performance is made.
Here too funding of parties is not a constitutional provision, but is provided for in the electoral law. 5% of presidential election cost is reimbursable by the state, but if a party gets
; more than 5% of the votes, it is increased to 25%. In parliament, state pays 10% of allowable cost. For a party to benefit it must be represented in parliament.
Only parties with representation in parliament benefit. Election costs are controlled and reimbursement mechanism is used.
Electoral law is used which limits expenditure and contribution in federal elections. Candidates are required to disclose sources and to provide accountability for funds received for presidential campaigns. 5% of the votes cast is needed to qualify for support. This is available to presidential candidates only since an attempt to include congressional candidates failed three decades ago.
The law on political parties stipulates that party funding may come from membership fees, donations, grants, profits, gifts, credits, legacies and from the budget of the republic. The law prohibits financial support from foreign governments, international organisations, organs and organisations of foreign states and other foreign persons; from domestic state bodies and local self-governments above the amount established by the government of the republic of Macedonia; and from companies in public or state ownership, including those that are in the state of privatisation. The law limits the amount of individual gift and donations and endowments to no more than 100 average salaries in the republic. During the elections, they are limited to no more than 200 average salaries.
The funds from the budget are distributed on the basis of electoral support and the number of seats in the sobranie. Thus, 30% of the total is equally shared between parties that have obtained at least 3%ofthe vote, and 70% is distributed to the number of seats. (Official gazette no.41/1994)
Lessons for Kenya
The question to ask at this point is: what lessons can Kenya leam from the European and other experiences? Considering how expensive electioneering has become, should Kenya consider introducing a law or a provision in the constitution, which would relieve pressure on parties deserving such support.
And considering that these "well wishers" are currently the major financiers of political campaigns in Kenya, what regulations should be introduced to reduce the degree of compromises inherent in such donations? Which lessons of experience from the West are worth adapting to the Kenyan situation? And should the change be incorporated into the constitution or enacted into electoral law?
As matters stand now, the replication of the cases cited above in the Kenyan context tend to depend on the following key issues being addressed in the management of political parties in the country:
* Whether political leaders are prepared to manage their parties in a more transparent and democratic manner than has been the case so far.
* Whether the culture of accountability can be accepted as a normative value governing the operation of institutions of whatever kind.
Much, in the way of success, would depend ultimately depend on the success of the democratisation endeavours currently underway in the country
ACCOUNTABILITY OF POLITICAL PARTIES
Accountability of political parties to the state, the electorate and to their members is the hallmark of democratic governance apart from accountability of the government itself. And in addition, the party should be accountable to financial supporters for any financial assistance it may receive. The problem in Kenya is that the Chief Executive of the state is above the law. This has also tended to influence the nature of the management of the ruling party KANU. And this has had the demonstration effect on the management of opposition parties, in that leaders of opposition parties have also tended to behave as if they are not accountable to anybody for their various actions. Within the institutional context, the parties have not been accountable to the members as well as to the general electorate. Political parties have not been operating according to their own constitutions. Some have not held any leadership elections since their formation and those which have, have often not done so within the stipulated time.
Arising from the above the suggested law on political parties should make provisions for ensuring that the political parties adhere to the provisions of their own constitutions as well as providing for mechanisms of accountability to the member and the electorate at large.
The purpose of this last section of the write-up is to revisit in summary form some of the issues already discussed above by suggesting recommendation as indicated below
1. The law on political parties should provide in some detail the conditions which a party seeking registration under the act should satisfy
2. Once formed, political parties must live up to the provisions of their own constitutions, assuming of course that the constitution does not contradict any state laws.
* The proposed law on political parties should clearly indicate the sanctions associated with noncompliance with the provisions of the law.
* The law should also indicate clearly what kind of institutions political activities should not be extended to (i.e. public institutions e.g. the armed forces, medical institutions, education institutions, except universities and institutes of higher learning.)
* The phenomenon of unofficial, dual "identification" with political parties has recently become a matter of public concern in Kenya. The proposed law on political parties must address this issue.
* Circumstances, under which a political party should dissolve its self or be proscribed, should be clearly indicated.
* Should a new authority be created sorely for the registration of political parties e.g. the office of the registrar of political parties or should their registration come under the purview of the electoral commission?
* What form should the inter-party co-operation inside and outside parliament take in order to address the problem of dual loyalty especially on the part of elected representatives at the national and local levels?
3. The question regarding whether or not the state should finance political parties, especially during election time is an important issue that the proposed law should address.
* Since many political parties in Kenya are receiving financial support from foreign sources, should the law prohibit political parties from receiving funds from such sources and if so what argument would be advanced in support of the action.
4. And with regard to accountability of political parties, the proposed law must provide for appropriate sanctions for noncompliance with the law.
We return where we started by asking: should the political party be a constitution organ? From the foregoing discussion the answer is yes and no; yes in the sense that the constitution should indicate what kind of political system is in operation in the state i.e. whether it one-party state, a multi-party state or a no-part state. And the "no" aspect of the answer suggest that the constitution cannot say all that need to be said about the conduct of a political party (ies) in a state. Therefore, there is a need for a specific law on political parties which should go into great details about the operation of the political party (ies) where the constitution so provides.
REFERENCES IN THE TEXT
Bogdanor, Vemor The Blackwell Encyclopaedia of Political Science (Oxford: Blackwell
Dahl, Robert A Dilemmas of Pluralist Democracy (New Haven and London: Yale University
Press) 1982 Ducachek I. D. power Maps, Comparative Politics of Constitution (Santa Barbara, California and Oxford: ABC-Clio) 1973
Kaltefleiter Werner / Nassmarcher Karl-Heinz, The New Germany of Public Subsidies to Political Parties, in Thesing and Hofineister (eds.) 1995.Pages 385-397. Meyer, Thomas Party Public Financing, in Mmuya, Max The Functional Dimension of the Democratisation Process: Tanzania and Kenya (Dar es Salaam: Dar es Salaam University Press) 1994.Pages99-100.
Oberreuter, Heinrich Political parties: Their Position and Function within the Constitutional System of the Federal Republic of Germany, in Thesing and Hofineister (eds.) 1995. Pages26-44.
Schefold, Dian Background and Basic Principle of Financing of Political Parties, in Thesing and Hofineister (eds.) 1995-Pages 3334-384.
Thesing Josef and Hoftneister Whilhelm (eds.). Political Parties in Democracy, (Bonn: Konrad-Adenauer-Stiftung) 1995.
Thesing, Joseph Transformation, Democracy and Political Parties- The Role and Significance q) Parties, in Thesing and Hofineister (eds.)1995.Pages 10-
24. Documents consulted: The majimbo constitution 1963 (Kenya); current Constitution of Kenya;
Societies Act (Kenya); the constitution of Uganda 1995; Website versions of the constitution of selected countries.