One of the ten demands made by the Azimio la Umoja One Kenya coalition leader Raila Odinga when he appointed a team to talk to President William Ruto’s Kenya Kwanza seeks to enforce a Turn-Coat Rule requiring rebel Members of Parliament who cross party lines after election to resign, and to allow parties to replace nominated MPs. We are lucky as a country that MPs cannot be removed from Parliament in Kenya willy-nilly.

Instead of encouraging debate on policy, tactics and reformation of the coalition party, Azimio’s top leadership is reincarnating the spirit of the notorious Fifth Amendment of the Constitution of Kenya that in 1966 was deployed to trigger 29 parliamentary resignations and the subsequent Little General Election; a farcical affair in which Jaramogi Oginga Odinga’s Kenya Peoples Union (KPU) party was not allowed to campaign freely and was harassed at every turn by police riot squads. Raila Odinga’s obvious concern is that a large number of Azimio MPs and even Governors have, in the months since he lost the 2022 presidential election, softened their stance on working with the Kenya Kwanza administration.

At present, apart from after due judicial process, Article 103(1) (d) & (e) of the Kenyan Constitution provides that an MP’s seat shall only be vacated if the Speaker is satisfied that the MP has resigned from the parliamentary party that nominated him or her or that they’ve joined another political party. 

Since 1966, it has been clear that the evidence of resignation or joining another political party must voluntarily come from the MP, and accusations by their mother political parties cannot on their own trigger vacation of office.  Azimio wants to make it easier to deem an MP has resigned. Specifically, it wants “changes in the law that will entrench party discipline by requiring MPs who cross party lines after election to seek a fresh mandate from the electorate and to allow parties to replace nominated MPs who cross party line.” 

I see a slippery slope ahead. The Constitution explicitly outlaws the casual determination of party bosses regarding the tenure of elected MPs, and secures parliamentary freedom for the representatives of the people from both the Executive and the caprices of party bosses. But it does provide under Article 103(3) that Parliament should  pass a law to guide the Speaker in determining the circumstances under which a member of a political party shall be deemed  to have resigned from a party, and therefore to have lost their parliamentary seat, triggering a by-election.

It must be said that on this point Raila Odinga speaks from a principled position. He demonstrated uncommon decency when he resigned his Lang’ata parliamentary seat in 1994 after leaving FORD-Kenya and joining the National Development Party. But his resignation was voluntary, not demanded or forced by his former political party. Raila’s current argument erroneously presupposes that the mandate of an MP is not personal and is instead derived solely from the MP’s party affiliation. 

It is not supposed to be easy to remove an MP from parliament. That’s why we should be careful who we elect.  Apart from disqualification as per Article 103 of the Constitution, an MP cannot be removed from parliament by her party under our law whether she toes the party line or not, unless she voluntarily resigns from the party by writing to the Speaker.

How an MP resigns was considered and determined in April 1998 by National Assembly Speaker Francis Xavier ole Kaparo in the aftermath of a resignation letter signed by David Murathe, MP for Gatanga constituency. Later, Murathe changed his mind and denounced the letter as a forgery, thereafter writing another letter to “unashamedly withdraw the intended resignation”. The Speaker’s investigation concluded that the first letter was not forged and he castigated Murathe for misleading the National Assembly. But crucially, the Speaker ruled that he could not declare the Gatanga seat vacant as the MP had withdrawn his resignation. SK Macharia, who wanted to run in the by-election, unsuccessfully sued both Murathe and the Speaker but the court threw out his petition for non-justiciability. 

The turncoat rule is not the ancient parliamentary tradition one might assume it to be when listening to Azimio politicians on the issue. In the Westminster tradition that we follow, an MP cannot resign before her term ends. MPs who cross the floor and vote for the other side can only be de-whipped (deprived of privileges of committee membership, for example) but are otherwise under only moral sanctions for treachery. The punishment for such perfidy may lie at the next election in the hands of the MP’s constituents.

In Kenya, we can act earlier. We  have a constitutional right to recall MPs, but it is a process and not a one day affair. The procedure under our Elections Act  is restricted to proven violations of the law by the MP. Furthermore, a recall petition must be supported by at least fifteen percent of the voters in more than half of the wards in the constituency. Lastly, a recall election must have at least fifty percent of the registered voters turning out and the recalled MP may run in it. These threshold safeguards ensure that MPs, once elected, are not harassed as we have seen with the abuse of impeachment procedures against Governors. 

Azimio’s current proposal amounts to an end-run around the safeguards.

Be that as it may, nobody can deny the necessity for party or coalition discipline.  At least fourteen MPs shamelessly rode an Azimio wave to Parliament and then switched sides immediately Parliament reconvened. More have jumped ship since. In the case of the United Democratic Movement, all its MPs did not even wait to be sworn in first before abandoning Azimio. This is, as Odinga rightly states, dishonourable conduct. But during a parliamentary debate on this issue, almost all defectors claimed to have been coerced into joining or staying within Azimio, in the first place. 

History tells us that the turncoat rule was first brought to Kenya in 1966 to grease the slide to single party rule by intimidating MPs who were no longer allowed to criticize KANU from within. By necessary inference, some might suggest that perhaps people are leaving Azimio for reasons other than bribery and greed.

The  enduring solution to the problem Raila Odinga is trying to fix  is the building of real democratic political parties with a real membership which democratically selects candidates for nomination through democratic processes. 

In other words, political parties need to create constituencies amongst the voting population of Kenya so that we identify strongly with the party and its objectives, and presumably dislike the policies and objectives of the other political parties. In this ideal world, if Jalango pulled the stunts he’s been pulling, ODM party cadres would collect the 21,847 signatures necessary to cause a recall election in Raila’s old constituency Lang’ata, today. 

This is preferable to setting goons on poor Jalango.

Author

  • Mwalimu Mati

    Mwalimu Mati, is a lawyer and governance consultant with over 25 years of work experience in the fields of economic governance, anti-corruption, research, advocacy and publication. Mwalimu’s life mission is to empower citizens to demand accountability by sharing knowledge.