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Introduction
Yesterday, the Members of the National Assembly resoundingly voted for the finance bill 2024 to be read for the second time. By 204 to 115, the second reading paves way for the bill to be subjected to the committee of the whole house and final voting to be undertaken on July, 25th 2024. Yesterday, I believe Kenyans got a glimpse of whom their elected leaders listen to. Definitely it is not them. They learnt that their voices meant nothing; that public participation did not hold much contrary to what Article 1 and 10(2) beholden. This confirmed Senator Ledama Ole Kina assertion that Kenyan Parliament always turns a blind eye to the public's views that emanate from public participation.
For the decorated Professor Migai Akech, public participation in lawmaking is a cornerstone of democracy that allows citizens to directly influence the legislative process. He succinctly captures this principle: “Public participation in law making is a way for citizens to govern themselves directly. Once citizens have indicated what they want or don't want, their MPs have no choice but to respect their wishes. Hence, public participation constrains the actions of parliament.” Article 10(2) of the Kenyan Constitution identifies public participation as a core value and principle of governance. This means that any legislative process, including the approval of the national budget, must involve substantial public input.
This year, the opposition to the Finance Bill has escalated significantly. Kenyans from all walks of life, including associations, religious groups, and individual citizens, have expressed their discontent to the bill. Social media platforms have been abuzz with the hashtag #RejectFinanceBill, with citizens actively sharing parliamentarians' contacts and urging them to vote against the Bill. To top this up, citizens, especially the millenials and Gen Z activated Article 37 which allows them the right to demontrate and picket in opposition to the bill. Despite the outcry, it is apparent the Parliamentarians view the outcry as "noise" not worth been taken into account. This raises two fundamental question: to whom are the Members of Parliament accountable? Are they beholden to the people they represent or to the political parties they belong to? This article will demonstrate the power of political parties over the voice of the people and factors contributing to this state of affairs. But first, let us examine what the constitution envisages.
Popular Sovereignty and Parliamentary Accountability
Popular sovereignty asserts that is the principle that political power resides with the people. This theory, championed by scholars such as Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, emphasizes that governments derive their legitimacy and authority solely from the consent of the governed, who retain the right to change or abolish governments that fail to protect their interest. Rousseau further expanded on this idea by introducing the concept of the general will, representing the population's collective interests and aspirations. In his speech before the electors of Bristol, Edward Burke passionately underscored that; “Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is adeliberative assembly of one nation, with one Interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of Parliament.”
Our Constitution enshrines the principle of popular sovereignty in Article 1, asserting that "all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution." This principle mandates both direct and representative democracy, delegating authority to Parliament, the national executive, county governments, and the judiciary. Article 94(1) further clarifies this by stating, "The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament." This establishes Parliament as the supreme law-making body, accountable primarily to the electorate. This accountability is fundamental to representative democracy, as affirmed in the landmark case South African case of Doctors for Life International v. Speaker of the National Assembly. In this case, the Constitutional Court of South Africa held that public participation must be genuine and substantive, rather than a mere procedural formality. The essence of the constitutional provisions on popular sovereignty lies in ensuring that the power of governance remains firmly with the people. By mandating both direct and representative democracy, the Constitution aims to create a system where the electorate has a say in the legislative process, either directly or through their elected representatives. This is intended to foster a government that is responsive and accountable to the needs and aspirations of its citizens.
Despite robust constitutional provisions, the reality of party politics often diverges from the ideal of popular sovereignty. This discrepancy raises an important question: do our parliamentarians, through political parties believe they are better equipped to make decisions than the citizens they represent? Could it be that they have adopted the position of Condorcet, a French philosopher and politician from the era of the 1789 Revolution who asserted that, “As a representative of the people, I shall do what I believe best serves their interests. They appointed me to expound my ideas, not theirs; the absolute independence of my opinions is my primary duty towards them.” Condorcet’s perspective suggests that representatives should use their judgment and expertise to make decisions they believe are in the best interests of the people, rather than merely echoing public opinion. If this is the case, then our political parties are defiling the constitution.
Political party line: The monster in the room
As earlier mentioned, Kenya’s political structure, in theory, is anchored on the principle of popular sovereignty, as outlined in Articles 1 and 94(1) of the Constitution. These provisions obligate Members of Parliament (MPs) to represent and act according to the will of their constituents. However, in practice, this democratic ideal is frequently compromised by various factors, including party loyalty and discipline, political patronage, and the strong influence of ethnic-based political formations. Party discipline is critical in Kenyan our political structure. It serves as a glue that holds political parties together and ensures alignment in public positions. Kenya's Constitution emphasises the importance of party loyalty in Article 103(1)(e)(ii), which allows for the termination of an MP's tenure if they are expelled from their party. Furthermore, the Political Parties Act strengthens this framework by requiring parties to establish internal mechanisms to enforce discipline among their members. According to Section 14(5)(e) of the Political Parties Act, any member of a political party who promotes another political party's ideology, interests, or policies is considered to have resigned from the party. These measures are intended to ensure that party members adhere to the party's constitution, policies, and interests. This directly ties an MP's political survival to their adherence to party lines, which frequently trumps the wishes of their constituents.
Voting along party lines is not unique to Kenya; in the United States, for example, the Affordable Care Act of 2010 was voted solely on party lines. Similarly, the contentious Security Laws (Amendment) Bill, 2014, was voted on party lines, demonstrating political parties' power. The upcoming vote on the finance bill will not be any different, the ruling qualition Kenya Kwanza will be expected to vote for the bill while Azimio is expected to vote against it. From the foregoing, Kenyan MPs always placed in a position where they must choose between adhering to party directives and representing their constituents' interests.
Political Patronage
Political patronage in Kenya is defined by skewed development projects aimed at benefiting the President's supporters and "punishing" those who did not vote for him and the party. It values personal or party loyalty over merit, which in the long run undermines democratic principles. Political patronage is propelled by the tendency to build political parties around individuals rather than institutionalizing them. More often than not, the life of a political party revolves around an individual who is the constitution of the party unto himself. Loyalty to the party leader is often seen as a prerequisite for political survival and political career progression. MPs who deviate from the party line risk losing their positions, facing disciplinary actions, or being sidelined in future elections. This dynamic is evident during the passage of contentious bills, where the President’s stance heavily influences the voting behavior of ruling party MPs. This means that MPs both in government and in opposition, in fear of losing their political seats, support and protection that they get from the Party Leader who is often a tribal kingpin must choose between adhering to party directives and representing their constituents' interests. Of course, we know which option they will choose.
Conclusion
We should not be surprised by the outcome of the vote on the Finance Bill 2024. Despite the constitutional mandate for MPs to act according to the will of their constituents, the reality of Kenya's political structure often tells a different story. Party loyalty and discipline, political patronage, and the strong influence of ethnic-based political formations frequently overshadow the principle of popular sovereignty. MPs, both in government and opposition, are often caught between adhering to party directives and representing their constituents' interests. This dynamic is reinforced by the power of party leaders, who hold significant sway over their members' political futures. As such, the vote on the Finance Bill 2024 will likely reflect these entrenched political practices, demonstrating once again the complex interplay between party loyalty and parliamentary accountability in Kenya.
