Unit 2.3:
How Does Democracy Work
in Kenya?

Handout

Scenario 1

Who Will Win in Wagugu?
It is election time again – Parliamentary election time. In Wagugu there are two candidates – Muno the sitting MP and Timi the local challenger.

Muno is a wealthy man. There are many stories about how he has so rapidly acquired his money. But he certainly knows how to use it to win elections. He spends lavishly on advertising; he makes sure the media cover his rallies and his statements – and he blatantly buys people’s votes. That is how he won in the previous contest.

Timi is a man from the Wagugu community. He was one of the brightest pupils in the local school. He went on to study at Nairobi University – and then on to the UK for a Masters degree. He returned to teach at Nairobi University. But he has always maintained close contact with his home area – volunteering his time to establish a community-based organisation that focuses on youth activities. He is well liked, well respected. But the only money he has is from his university salary. He is putting himself forward as a candidate for the first time.

Question: What are Timi’s chances of winning?

Scenario 2

Question: How far has Kenya gone along the road of democracy?


Kenya’s electoral system

Three main types of election:

In addition to the Constitution, three Acts determine Kenya’s electoral processes:

To be registered as a voter, one must:

To qualify to be elected as President, one must:

To qualify as a candidate for Parliamentary elections, one must:

Women in Parliament
1969:   7 competed and only one was elected
1974:   13 competed and 4 were elected         
1979:   15 competed and 4 were elected         
1983:   7 competed and 2 were elected           
1988:   6 competed and 1 was elected             
1992:   19 competed and 6 were elected         
1997:   47 competed and 4 were elected         
2002:   44 competed and 9 were elected (8 were nominated)                                       
 

Background Information

 

Introduction: Types of elections

An election is a method by which citizens or members of a group choose people to represent them in the decision-making process, especially in the highest decision-making body in the land, the National Assembly or Parliament – which in Kenya is empowered to make laws, amend the constitution, approve public expenditure and sharing of revenues, approve public appointments and inter-state treaties, investigate the functioning of organs of the state, declare war, and so on.

The people’s choice is made through casting a vote. By electing a representative, people are mandating that representative to make decisions on their behalf. Elections can be carried out by secret ballot or in the open. Election by secret ballot is where voting by each person is done on a piece of paper (called the ballot paper) which does not show who the voter is. We use ballot papers when we elect the President, our members of parliament or our councillors. We fill in the ballot paper in a booth where nobody else can see whom we are voting for. There is no space for our name on the paper. Then we fold the ballot paper and put it through a small hole into a sealed box (called a ballot box).

In open voting, voters openly identify themselves and who or what they are voting for. They can do this by a show of hands or by lining up behind a candidate. Two familiar examples in Kenya are voting by a show of hands, and the now-discredited mlolongo or queue voting system, which involves lining up behind a candidate of one’s choice or the candidate’s representative.

 

Kenya’s electoral system

In Kenya, there are three main types of general elections, namely:

 

There is also the option of a referendum in which the public is asked to vote on one or more specific issues, usually with a Yes or No – as happened recently in the referendum on the draft Constitution.

All the three elections normally take place at the same time, after every five years, except when there is a by-election to fill a seat left vacant because the election of a candidate has been cancelled or an elected person has resigned, changed political parties or died. A general election can only take place when Parliament has been dissolved. As we said, this normally takes place after every five years, but it can happen before the expiry of five years if the government decides it wants to go back to the citizens for a fresh mandate or support for a change in policy.

Under the Constitution of Kenya, the President can also dissolve Parliament under certain other conditions. In times of war, the life of Parliament can be extended. It should be noted that every Parliament in Kenya’s history (we are now in the Eighth Parliament) has served its full five-year term. Like Britain and many other Commonwealth countries, Kenya uses a ‘majoritarian’ or plurality electoral system, in which it is the actual number of votes cast for a candidate that counts. Only one Member of Parliament is elected for each constituency (Kenya currently has 210 constituencies), and one councillor for each ward. The candidate with the highest number of votes is considered the winner (or the ‘first past the post’) regardless of the percentage of total votes received.

Elections in Kenya are democratic by definition, because voters are under law entitled to use their right to vote freely, without anything or anyone preventing them from doing so. All candidates seeking to be elected are likewise entitled to an equal chance to win the support of voters before and during the election. In other words, the current ‘political fashion’ in Kenya of declaring certain areas ‘no-go areas’ for certain political parties or candidates, is strictly illegal.  All licensed political parties and groups that want to can take part in elections; all registered voters are eligible to vote.

Candidates are supposed to be given all reasonable chances to campaign without obstruction. Media access, print, radio and TV, for all parties – once a bone of contention – is now virtually guaranteed with the proliferation of private media houses licensed to broadcast on TV and radio, which was once the monopoly of the Kenya Broadcasting Corporation. Counting of votes and the announcement of results is now open and transparent, being done at the polling station itself, with candidates’ agents and other observers being present throughout the process. In the 2002 election, the whole country could follow the progress of the counting and learn about the results as soon as they were declared, as radio and television stations, which had reporters with mobile phones at the polling stations, kept up a running commentary.

In addition, Kenya law allows a two-round system for the Presidential election, if no clear winner emerges in the first round – that is, a candidate with at least 50 percent of the total vote and at least 25 percent of the vote in more than half of all the 72 districts – then there is a second round of polling between the two candidates with the most votes. This is what happened in Liberia recently, when the two leading candidates for the country’s presidency, Ellen Johnson-Sirleaf and George Weah, went into a second round or ‘run-off’, won by Johnson-Sirleaf.

In addition to the Constitution, the National Assembly and Presidential Elections Act is the main law dealing with elections. It covers the registration of voters and the election of the President and the National Assembly. A number of regulations in this Act deal with the practical details: How the election must be conducted; how voters must be registered; the qualifications for voters and candidates; election offences; and court petitions challenging election results.

The Election Offences Act describes election offences under law and lays down penalties for offences such as campaigning at polling stations on the polling day; preventing people from voting and/or presenting their nomination papers to the returning officer; bribing voters; voting more than once; threatening or tricking voters to influence the way they vote; and so on.

The Local Government Act covers the election of councillors, mayors and chairpersons.

Elections are organised and supervised by the Electoral Commission of Kenya (ECK), which under law is independent of government or other control or influence, being supported neither by the government or political parties or any other group, but by a budget voted by Parliament. It is required by law not to favour any one political party. The Electoral Commission has a chairman, as well as not less than four and not more than 21 members or commissioners, who are all appointed by the President. Under the agreement negotiated in 1997 by the Inter-Parties Parliamentary Group, the President appoints these members from among candidates chosen by the political parties. The number of members chosen by each political party is based on the number of seats they have in Parliament. No qualifications are needed for people to be appointed – but members of the National Assembly, the public service or the armed forces cannot be appointed as members.

The functions of the Electoral Commission include setting up constituencies as decided by Parliament; reviewing the number, boundaries and names of constituencies; registering voters and keeping voters registers up to date; and controlling and supervising Presidential, Parliamentary and Local Government elections. Electoral boundaries (where the constituencies or voting areas begin and end) are laid down according to the principle that the number of citizens in each constituency should be as equal, as far as possible, to those in other constituencies. However, the Electoral Commission has the power to change this, taking into account the number of people in an area, how close they live to each other and how this is changing over time; the state of communications in the area and how easy it is for the citizens to be reached; geographical features that may break up or bring the community together – and so on.

The law also provides for international and local election observers. These are not officials of the Electoral Commission but people or bodies interested in monitoring the electoral process so as to judge its fairness. They have to be registered or allowed to observe the elections by the Electoral Commission.

Registration of voters
To be registered as a voter for Presidential and Parliamentary elections, one must:

A person is not qualified to be registered as a voter if he or she:

 
Candidature
A person can qualify to be elected as the President if he or she:

To qualify as a candidate for Parliamentary elections, a person must:

A person is disqualified from standing for a Parliamentary seat if he or she:

 

Electoral process
In summary, the steps in the electoral process are as follows:
Step 1:             In a general election the first step is the dissolution of Parliament. This is where Parliament is formally dismissed in order to elect a new Parliament (in case of a by-election, the Speaker issues writs – and statutory notices are published in the Kenya Gazette by the Speaker and the Electoral Commission).

Step 2:             An election date is announced and the Electoral Commission provides a timetable for the election. By this time the voters have been registered and the registers completed.

Step 3:             The next stage is the choosing of candidates by the political parties. Those chosen present their nomination papers to officials of the Electoral Commission.

Step 4:             The Electoral Commission sets the dates for the election campaigns and the voting process. The campaigns must end at 12.00 midnight on the night before Election Day. No campaigns are allowed during polling days.

Step 5:             Polling is done at the same time for Presidential, Parliamentary and local government elections.

Step 6:             Polling booths open at 6.00 a.m. and close at 6.00 p.m. On polling day, the voter has to show his or her identity card and voter’s card.

Step 7:             The voter’s name is then checked in the voters’ register.

Step 8:             The voter is then given ballot (voting) papers for the three elections.

Step 9:             The voter fills in the ballot papers in a private booth and then puts each one in the correct ballot box for either President, Member of Parliament or the local government councillor. Election officials can assist the illiterate and other disadvantaged voters.

Step 10            The ballot boxes are sealed. These last three steps (steps 8, 9 and 10) make the elections a secret ballot.

Step 11:           Once the voter casts his or her ballot, his or her fingers are marked with indelible ink, which cannot be washed off to prevent further voting.

Step 12:           At the end of the voting, the ballot boxes are moved to the counting hall.

Step 13:           The ballot boxes are then opened and emptied in the presence of Electoral Commission officials and candidates, or their agents.

Step 14:           The counting is then done and the results announced as soon as possible.

Step 15:           Any candidate who is not happy with the results for a good reason may make an application in court to cancel the election.
 
 

Obstacles to free and fair elections

Through international experience, a number of factors have been identified that can make elections less than free and fair. They include the following:
 

 
 

Holding up half the sky: Women and elections

Women make up about 52% of the population in Kenya – in other words, they are the majority by a slight margin (in Mao Zedong’s much quoted phrase, they hold up half the sky). They play a crucial role in society and in economic production, particularly in agriculture, which accounts for 80 percent of the country’s GDP. They play a major role in elections and many observers say that their voter turnout is higher than that of men.

However, there are few women in elected positions in the country, a situation that has changed little over the past four decades despite every political party and public official stating that they are committed to increasing women’s representation. In fact, as the box shows, women’s representation in Parliament – up to the 2002 election, had actually worsened over time.

Women in Parliament: Firmly in the minority
In the 1969 elections, only seven women candidates competed for a Parliamentary seat. Out of these seven, only one was elected. The figures for the elections that followed are:
1974:   13 competed and 4 were elected          30.8%
1979:   15 competed and 4 were elected          26.7%
1983:   7 competed and 2 were elected            28.6%
1988:   6 competed and 1 was elected              16.7%
1992:   19 competed and 6 were elected          31.6%
1997:   47 competed and 4 were elected          8.5%
2002:   44 competed and 9 were elected
(8 were nominated)                                                      

Several factors are cited to explain this discouraging trend. They include:

 

One solution to the problem of increasing women’s participation in politics has been applied in all sorts of societies from the developing world to the West (even there, the representation of women in politics remains less than their proportion in the population). This is affirmative action, embodied in a constitutional and legal system that is supportive of women’s efforts to join political life. Kenya’s neighbour Uganda, for example, reserves some 60 parliamentary seats for women.

Ellen Johnson-Sirleaf’s example
A Ugandan commentator, Charles Onyango-Obbo, writing in The EastAfrican about Ellen Johnson-Sirleaf’s election as Africa’s first woman president, has suggested that women’s role in politics in Africa has been enhanced in societies that have experienced war and prolonged civil conflict – because war tends to shatter myths about men’s superiority and shift the burden of family responsibilities and economic coping more and more on to women’s shoulders. Obviously, we cannot prescribe civil war as a solution to women’s political empowerment, but Obbo’s observation shows just how deep the problem goes. And it is not one that can be treated fatalistically either, by trusting to time to take care of it. In a competitive global situation, any society that lags behind in empowering women will be at a disadvantage in almost every field. Beyond affirmative action, the best solution is for women themselves to take up the challenge aggressively. Kenyan women are gaining prominence in society, the arts, sports and the corporate world, where several already run industry-leader companies; they must pick up the gauntlet. Ellen Johnson’s shining example is there; after all, Africa has already elected a woman president ahead of the United States.

 


Notes for Facilitators

Objectives

 

Sequence
1. The ‘Who Will Win in Wagugu?’ scenario
This Rich Man/Poor Man scenario should provoke discussion about how candidates present themselves in Kenya – and about how voters respond:

It is also an opportunity for role-play. Consider for instance setting up a role-play in which each candidate tries to persuade a group of voters in a campaign meeting. Try to include a woman candidate to explore some common attitudes about women in politics:

2. The Gado cartoon
Ask the participants what they see in the cartoon. The police have found the young man with documents that in previous years could well have got him into serious trouble…. Do Kenyans have good reason to be glad that the political climate has changed quite significantly over the last fifteen or so years?

Whatever the method you use, from the discussions on both scenarios, make sure to record the key points that emerge – so that you can relate them to the further discussions within the session. 

3. Kenya’s electoral system
The first and main part of the Background Information is a description of the electoral system….
First, focus on the voting procedures: the secret ballot that is usually used – and the mlolongo, queue voting method:
Ask:

The handout contains some factual information about the Acts that govern elections in Kenya, about the registration of voters and the eligibility of candidates. You could also take the group through the 15 steps of the electoral process.

4. Obstacles to free and fair elections
All the above should lead to a lively discussion on the obstacles to free and fair elections. We suggest that you have a brainstorm with the participants – and then compare their thoughts with the 11 points in the text.

5. Women and elections
The handout contains the statistics about women’s participation in the Kenya elections since 1969. Having gone through these figures, brainstorm on the factors that might account for the very small number of women who have made it to Parliament. Again, compare the outcome with the seven points in the text.
Ask