Political Shenanigans and Legal Realities: Can We Really do away with Tyranny of Numbers?

Over the past few weeks, Kenyans have been treated to a war of words over their new constitution. For a constitution many voted for because their preferred leader had ‘read it for them’ without understanding the complexities therein, there is a danger to get lost in the acrimonious debate in the political scene. This post, albeit in a small way, attempts to analyse the situation based on political interests and legal realities to better understand the motivations of the warring parties.

Many may not have agreed with Mutahi Ngunyi’s analysis of voting patterns in Kenya which was based – I think – more on empirical derivation than visceral distaste for what is now the opposition. A cold and shrewd calculator of power, he opined that Kenyans always voted along tribal, ethnic if you like, patterns. This did not go down well with many of the members of the opposition party especially their captain. On a number of occasions Raila Odinga could be heard berating the analysis and the analyst for being anti-nationalist and peddling petty and parochial ideology. I think it is relatively safe to say that the election results spoke for themselves; relatively since some doubts linger on whether it was fair.¬†From that time on, the term ‘tyranny of numbers’ became a house hold name; I would not be surprised that a child born at the time would bear such a name.

Now there is a push to change that. The Coalition for reform and Democracy (CORD) is pushing to amend the constitution. It posits that the current pure presidential system perpetuates ethnic motivated leadership. It suggests that the a parliamentary system would be best suited to render tyranny of numbers irrelevant. Is this true and if so can the CORD opposition groups muster the required constitutional thresholds to pass such an agenda?

First things first. What is a parliamentary system? This is a system where the head of government (mostly a Prime Minister) is often the leader of the majority of members of Parliament or is voted by Parliament which sits as a constituent assembly. In this system, members of the cabinet are often members of Parliament.

You may be wondering how this is any different from how the old constitutional order looked. Well there is a major difference. Note that the Prime Minister is not elected by the people of the republic. He is either appointed by head of state (often a ceremonial president of a monarch) as the head of a party or coalition of parties with Parliamentary majority or is elected by Parliament. Kenya’s old constitutional order provided for the election of a President directly by the people despite the fact that s/he too required to be a member of parliament.

Would such a system bulwark against the reality of tyranny of numbers? I fail to see how. For one, if the Prime Minister is to be the leader of the party/coalition of parties with Parliamentary majority, the tyranny of numbers would be at play. Unless one redrafts the constitution to provide for equal number of constituencies in all regions, something that is also difficult to do, there is no feasible way of guaranteeing that Kenyans will not vote along tribal lines. If they do, the most populous party or coalition of parties will most likely win: tyranny of numbers!

Secondly, the idea of voting for the Prime Minister appears to be credible, but looks can be deceiving. The prevailing wisdom is that if Parliament takes up the job of voting for a leader, then a charismatic one would most certainly sweep the floor and clinch victory despite party divisions. But as I said, this is deceptive at best. Many MPs are not moved by charisma but cheques and, preferable, cash thereby creating a position that elevates monetary leadership thereby perpetuating the bourgeoisie class in power.

The second consideration is whether this push can materialize legally. There are two ways of amending the constitution and two ways of ratifying it. According to chapter 16 of the constitution there is the Parliamentary and Popular initiative of amendment and there is the Presidential Assent and Referendum Approach to ratification of the amendment.

Parliamentary Initiative requires the tyranny of numbers that has been vilified. A look at article 256 impresses upon the reader the reality of pushing a constitutional amendment using this route. The law requires that both houses of Parliament pass the amendment each by a majority of 66% at two stages: the second and third reading of the bill. Thereafter the bill is taken either to the president for assent or the people in a plebiscite. Considering that both houses are ‘controlled’ by the Jubilee coalition, CORD has a herculean task.

Popular initiative provides the other alternative. But this too is fraught with difficulty. There needs to be support of a million registered voters which will not be a hard thing to achieve as CORD did get 5 million votes. Secondly 24 of the 47 County Assemblies must ratify the amendment and submit it to Parliament where it must pass by a simple majority. Thereafter it either goes for presidential assent or referendum.

Here there is reprieve for the CORD coalition. From the election results it appears that it ‘controls’ 20 of the 24 assemblies needed to pass such an amendment. Through lobbying getting to the number 24 is not that difficult. However two obstacles still remain. One is the simple majority and the other is the fact that the president may decide not to sign and therefore the matter goes for referendum where Raila will have to face the same population he did in the 2013 general elections.

With the legal realities having been considered, is there a chance of CORD passing the amendment they want? Chances are always there in politics, but CORD’s is a narrow one. Either way one chooses to look at it, tyranny of numbers will still be a factor.

Another important question is whether this is the best solution for the country. I do not think so. We are attempting to change the mind of Kenyans through law; a top down approach that will most likely fail. Many Kenyans perceive themselves through the lens of insular ethnic enclaves, a perception intrinsically tied to the politics of redistribution of resources. Thus I doubt that mere changes to law would have much effect on the populace; the real power behind election victory.

I could not end this post without considering some political implication of the push. A fairly clear one is that the race for 2017 has already began. Raila must court public attention at all cost lest his popularity plummets (see Law 6 of the 48 Laws of Power by Robert Greene). This is an avenue that will most likely endear him more to voters and thus leap ahead of what may be his main rival, the incumbent, who is tied down by state duties.

In conclusion, the realities of changing the constitution are quite grim for CORD. If they are serious in this move, they need to get down to work and be more organized than they were in 2013. If not, then they have to contend with the system as it is and hope against odds that the Jubilee coalition does not hold in the next election. This invariably means that tyranny of numbers is here to stay unless there is a fundamental shift in how Kenyans make political decisions.