KENYA The Parliament of Kenya
Assembly has the last say on defection under the existing legal framework. The Tenth Parliament has
witnessed a lack of party discipline and cohesion. This has been due to the fact that, the political parties did not have a say on how their members conducted themselves, including, the casting of their votes. Given there was no opposition in both the Executive and the Legislature, what purpose would it serve to whip Members for any cause? Yet, that notwithstanding, the Party of National Unity and the Orange Democratic Movement each have a Chief Whip and a Deputy.
In a nutshell, it has not been conceivable that the government would be out of office on the initiative of the Legislature. The PNU and ODM parties were all in it – how could they or either, vote against itself? Thirdly, the Coalition System
is an unfamiliar way of governing in Kenya. It has exhibited uneasiness, stress and infighting; particularly on various occasions when one of the parties appeared poised to gain mileage. Consequently, on such occasions, expressions would be made, both inside and outside to the effect that, a partner was not respecting provisions of the National Accord and Reconciliation Act, 2008. And on some other occasions, it has seemed like the Legislature turning up the heat on the Executive for the latter acting outside the constitution/law. Fourthly, there have emerged
divergences of opinion and position on how to address certain matters of national concern. On such occasions,
both the Parliament and the Two Principals have either found themselves divided right in the middle or the Two Principals going one way without their troops. Such instances include:
(i) Censure motions introduced in the House on the perceived irregular conduct of a Cabinet Minister; and (ii) How to proceed upon the release of the investigation, findings and recommendations to deal with the post election violence of the general election of December, 2007.
The fifth perspective which
has defied even the law, relates to defection or party hopping. Prior to the enactment of the Political Parties Act, 2012, defection by a sitting Member from the political party on whose ticket he or she was elected, required the Member to notify the Speaker in writing. The effective date of the defection would be the date on which the notification was written.
At the same time, the power for political parties to expel those of their Members they deemed wayward was clipped upon re-enactment of Multipartyism in the constitution in December, 1991.
Pursuant to the Political
Parties Act, 2011, defection of a hon. Member is deemed to have taken place upon adducing of empirical evidence of the hon. Member supporting the policies or candidates of another party at an election. Such empirical evidence has been abundant throughout the Tenth Parliament. One or two political parties have attempted to put these provisions into effect. However, the text of the relevant provisions have, on close scrutiny been found inconclusive. The registrar of political parties, understood to be the executing officer, has highlighted the fact of the law does not expressly vest such powers in her office. Thus, neither the political parties, the registrar of political parties or the Speaker of the National
The constitution: A paradigm shift The enactment of the Constitution of Kenya, 2010 is one of the key outputs of the Tenth Parliament. The constitution received a 67 per cent endorsement at a national referendum on 5 August 2010 and was subsequently promulgated into the Basic Supreme Law of Kenya and became effective on 27 August. The principles and structure of governance adumbrated in the constitution announced a major paradigm shift in the governance of Kenya. The key aspect of the
paradigm shift is the creation of two levels of government, i.e. the national level and the county level. Devolution is exclusively dealt with in Chapter Eleven of the constitution, while the division of functions between the two levels is in the Fourth Schedule. The impact of the paradigm shift will be felt at most in the Executive and Legislature arms of government. The salient aspects revolve around:
(i) Devolution – the delegated sovereign power to govern is deconcentrated from the erst- while centralised Executive and Legislature to similar organs in
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