Of course democracy is a matter of numbers. You don’t win an election unless you get the most votes, isn’t that so?
Well not exactly. The role of numbers in a democracy is often more complex than that. And even more so when you factor in issues of human rights, justice, fairness and inclusion – all of these very important in Kenya’s Constitution.
The President
There is one situation in which having the most votes is supposed to be crucial – but even there things are not quite so simple. Under the current Constitution every person declared elected as President had not just the most votes cast but more than half of the total votes cast (I can’t here go into what ‘votes cast’ actually means – does it include spoilt ballots?).
This rule is based on the assumption that there might be several candidates in the presidential election, who would divide votes between them. It’s what happened in 1997 when President Moi won – some would say because several people stood against him. Six million voted and Moi received 2.5 million votes. More people did not want him than did. This could not happen now.
A person could theoretically win more than half of all the votes cast yet only in a limited number of counties. The Constitution also tries to guarantee that any person elected as President has wide national support. All those elected also won more than 25 percent of the votes cast in at least half (means 24) counties In the US, they give each state a certain number of votes. How the state’s votes are cast is a matter for each state’s law. It was designed to ensure that all the states, even the small ones, could have an impact on the result. Remember that the US comprised initially a number of existing states that came together. It can mean a President is elected by a majority of state votes, but not of popular votes.
In Kenya, the successful candidate’s support should be spread widely across the country. If the leading contender does not achieve this in the first ballot there is a second ballot. In this there is no county spread requirement. But since there would be only two candidates in that second ballot, it is assumed that the winner would have widespread support.
A person might in theory win heavily in very populous states, gaining very few votes in others, thus winning the popular vote but not attaining widespread support. But it is hard to see any other solution.
MPs
MPs are the main national level legislators (sorry, Senator!). The constitutional theory is that each MP should be the voice in the National Assembly of about the same number of Kenyans. There is also the idea that each MP should represent a community. The constitution tries to reconcile these by saying that each constituency should be roughly the same size but also should have some unity – in terms of its geography (like not having a river or some other feature dividing it), being an urban centre, or being linked by some communication method.
How far a constituency can depart from the equality of size because of the community factor is laid down in the Constitution. Cities (where people live particularly close to each other) can be up to 40 percent larger in population than the national quota. And areas where people are few and spread out may be up to 40 percent smaller in terms of population.
Even other constituencies – not cities nor sparsely populated – are allowed to be up to 30 percent above or below the national quota. The national quota is the total population divided by the number of constituencies. So with 47.8 million people (2019 census), each constituency’s starting point should be 164,828. And a city constituency might have as much as 230,748 population, and a truly rural area as few as 98,908. But each elector in the latter would have over twice the representation in the National Assembly that the one in the former enjoys.
Even when constituencies are roughly equal in population size our voting system can produce skewed results. If a party (or other group that votes in a similar way) is concentrated in a few areas, they may win fewer seats than their strength warrants. On the other hand, a group that is small may dominate in one or two areas and win seats that actually exaggerate their total support.
Such a system does not guarantee all sectors are really represented. Women still feel under-represented. And small communities may never muster enough votes in one consistency to get a single seat.
So the Constitution contradicts its own principle of equal representation. Each county has one woman rep. But counties range in population size from about 144,000 to 2.3 million. The system enhances women’s voice, but distorts other aspects of representation.
So-called nominated members are supposed to present groups not otherwise really represented. There are only 12 of them – identified on the basis of how many seats a party has won, not how much electoral support it has received. They actually add to the support of the already largest parties – maybe adding to the numbers of parties that are not minority-friendly.
The Senate is very uneven in terms of representation – each county, of whatever size, has one senator. This is to enable each county to play its part in protecting devolution. And the 16 extra women and four others further distort the representation principle.
Why does it matter?
The theory is that each voter should have a similar voice in Parliament because laws are made there, and accountability is supposedly extracted from government bodies. It does not matter in the same way as it does in a parliamentary system where the head of government emerges as a result of the election of MPs.
I fear that in reality, in Kenya people focus more on other things than how laws are made. One factor is the CDF. This is actually unconstitutional but MPs are yet to accept that (they have no power to refuse to accept constitutional rulings!). Another focus is on appointments. MPs approve various appointments – such as CS, PS, and some commission memberships – like the IEBC. All too often in Kenya, politics is seen to be about who get what jobs.
Relatively little attention is paid to laws – except if they involve people paying out money, such the Finance Act. It may not help that many laws are honoured more in the breach than the observance.
Would other systems be better?
Some people would argue that a proportional representation (PR) system would be better – producing better representation of all groups. The very first draft constitution (of the CKRC in 2002) wanted a sort of PR system – about two thirds of MPs would have represented geographical areas with one third from party lists, allocated to ensure that party support was really reflected in the make-up of Parliament. When significant numbers of members come from party lists, the theory is that the party will reach out to all sorts of groups, including women and persons with disabilities and minority communities, to get their support. This idea did not survive the Bomas conference. It is very hard to get people to change their election system – and even harder to get MPs to give up the system under which they have been elected.
Avoiding the tyranny of the majority or the dominant
I wanted finally to point out that majority views are not always conclusive for a very different reason. A major chapter in our Constitution, the Bill of Rights, protects the rights of everyone. And majorities are less likely to find their rights are at risk. It is the minorities that are at risk – minority tribes, language speakers, religions, persons with disability. Women’s rights are particularly protected – they are a slight majority but this does not protect them. They are vulnerable because men tend to be dominant.
Courts can declare laws and actions unconstitutional even if a large majority would endorse them.