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The long road to institutionalization:the Kenyan Parliament and the 2013electionsKennedy Opaloa

a Department of Political Science, Stanford University, Stanford,CA, USAPublished online: 27 Jan 2014.

To cite this article: Kennedy Opalo (2014) The long road to institutionalization: the KenyanParliament and the 2013 elections, Journal of Eastern African Studies, 8:1, 63-77, DOI:10.1080/17531055.2013.869009

To link to this article: http://dx.doi.org/10.1080/17531055.2013.869009

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The long road to institutionalization: the Kenyan Parliament and the2013 elections

Kennedy Opalo*

Department of Political Science, Stanford University, Stanford, CA, USA

(Received 5 July 2013; accepted 17 November 2013)

What explains the emergence of a relatively strong legislature in Kenya in a regioncharacterized by “rubber stamp” parliaments? And how do the results of the 2013election affect the chances of continued strengthening and institutionalization of theKenyan legislature? This paper addresses these questions by situating the evolution ofparliamentary strength and institutionalization in Kenya in the context of the country’spolitical history since independence. The argument advanced is that although thecodification of the gains in parliamentary strength and independence only began totake place in the late 1990s, the process that led to the realization of these gains goesback to the first parliament after independence. The paper also analyzes the impact ofthe constitutional requirement of 50% plus one in the presidential race on partystructures in different parts of the country. The findings suggest that while the 2013elections were marked by a heightened sense of inter-regional alliance-building for thepresidential race, at the sub-national level the effective number of parties increased inall regions relative to the 2007 election, with the exception of the Central Region.

Keywords: institutions; parliament; elections; Kenya

Introduction

On 9 May, 2013, Kenyans witnessed for the first time the vetting of cabinet secretaries(formerly ministers) on live television before formal appointment by the president. Thisevent marked a complete departure from the era of “ministerial musical chairs” when cab-inet appointments and reshuffles were conducted almost impulsively through dispatchesto newsrooms.1 Although the vetting process itself fell short of desired standards, it was apointer to the relative power of the Kenyan Parliament as an independent arm of govern-ment.2 The imperial presidency that had dominated Kenyan politics for over four decadeswas no more, signaling a heightened chance of the consolidation of limited governmentthrough parliamentary oversight.3

Just over two years before, the 2010 Constitution created in Kenya what is arguablyAfrica’s strongest parliament,4 with a complete separation of powers; fairly competitiveremuneration; and complete autonomy with regard to the parliamentary budget andcalendar.5 Kenyan presidents can no longer control the legislature through ministerialappointments. Presently, Kenyan MPs earn about US$141,000 per year. While this paylevel remains controversial, especially considering that per capita income in Kenya is apaltry US$808,6 there is some justification for competitive remuneration of members as it

*Email: kopalo@stanford.edu

Journal of Eastern African Studies, 2014Vol. 8, No. 1, 63–77, http://dx.doi.org/10.1080/17531055.2013.869009

© 2014 Taylor & Francis

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insulates the legislature from control by the executive through patronage.7 To put thingsin perspective, back in the mid-1960s the president earned 12.5 times the salary of an MP.That ratio has since dropped to less than 2.5 times. Of course the increase in pay alone isnot necessarily a guarantee of MPs’ independence from the executive, but it certainlyincreases the cost of patronage for the incumbent president through the process ofpatronage inflation.8 In many ways the Kenyan Parliament is “no longer a toothlessbulldog” but a body that has tremendously improved both its technical capacity andpolitical independence from the executive.9

It is in this context of a relatively strong and still evolving institution that the 2013General Elections took place. The elections ushered in the re-establishment of thebicameral legislature (abolished in late 1966), with a 349-member National Assembly anda 67-member Senate. Members of the National Assembly (MNAs) were elected from 290constituencies and the 47 counties (women representatives), and 12 nominated proportio-nately by political parties in proportion to their parliamentary strength. Senators wereelected from each of the 47 counties and an additional 20 proportionately nominated bypolitical parties to represent special interest groups, including 16 women, two youth andtwo persons living with disabilities.

This paper analyzes the 2013 parliamentary elections in the context of the politics ofthe historical institutionalization of the Kenyan legislature. Although the 2013 electionsoccurred under a completely different constitutional environment, in many ways theyexhibited a continuation of the dynamics of parliamentary elections in Kenya sinceindependence. Just like in past elections, the nationalized nature of Kenyan politics (witha biased focus on presidential elections) led to a situation in which party politics mattereda lot more than incumbent (parliamentary) aspirants’ performance in determining theoutcome of elections.

In addition, local politics around patronage and access to public resources also playeda non-trivial role in determining aspirants’ performance. The 2013 elections alsowitnessed a high turnover of MPs, with almost three-quarters of all elected membersserving for the first time. Despite the continued failure of MPs to develop a personal voteand reliable political bases in their respective constituencies, the 11th Parliament wasconstituted as the strongest yet (at least formally) in Kenya’s history. A question thatarises is how the outcome of the 2013 elections will impact the continuing process ofinstitutionalization of the Kenyan legislature. This paper seeks to answer this questionthrough an analysis of the dynamics that have thus far shaped the evolution of theKenyan legislature and how those same dynamics will be impacted by the outcome of the2013 elections. In doing so it seeks to revise the prevailing notion that the observedstrengthening of the Kenyan Parliament is a phenomenon that only resulted from thereform movement that began after the reintroduction of multiparty politics in the early1990s; and that in prior periods the Kenyan Parliament was a mere rubber stamplegislature with little to no impact on government policy.10 Instead, it takes the view thatthroughout Kenya’s post-independence history, the strength and authority of parliamentrelative to the executive has always been contested. The paper further argues that thestrategies employed by the executive to dominate the political space – through the Pro-vincial Administration, the party Kenya African National Union (KANU), and thebureaucracy – were as much a result of the executive’s inability to challenge directly theinstitution of parliament as they were attempts to diminish its power. Furthermore,the paper argues that some of the tactics employed by the executive to dominate thepolitical space actually served to facilitate the institutionalization and thereby thestrengthening of parliament in the long run.

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Institutions under autocracy

In 1966 Carl Friedrich and Zbigniew Brzezinski argued that institutions in autocraticstates did not matter since all control rested with the autocrat.11 In other words, institutionsin non-democracies were epiphenomenal. This view has for a long time informed thestudy of African politics. The predominance of personalized political rule in Africa hassometimes led scholars to argue that institutions do not exist in the region,12 or areseverely patrimonialized to the extent that they lack formal meaning.13 Others haveargued that institutions in Africa perform little to no role since the state has been hijackedby vested interests that thrive in the resultant disorganization and institutional vacuum.14

While rightfully highlighting the numerous challenges facing the institutionalization ofpolitics in Africa, these works have, in the main, failed to recognize the important roleinstitutions (however weak) play in structuring the conduct of politics in the region.

The reality is that regardless of regime-type institutions of state are not epiphenome-nal. State and political institutions – such as parties and legislatures – are importantarenas for policy formulation and intra-elite negotiation even in dictatorships.15 Indeedthe empirical evidence shows that institutions have a significant impact on regimesurvival, with leaders who institutionalize their rule surviving longer in office than theirmore personalistic counterparts.16 The advantage of institutionalization of rule arises fromthe fact that dictators in power require both compliance and cooperation from fellowelites and the masses alike. Institutions therefore exist as an arena for the ruler to giveconcessions to opposition groups and regulate intra-elite competition in a peaceful andpredictable manner. This is because all rulers, whether autocratic or not, have an incentiveto “devise structures to facilitate exchange and increase their marginal rate of return.”17This reality applies to both the economic and the political spheres, and is especiallyimportant as far as intra-elite relations within a state are concerned.

The fact that more than two thirds of extra-constitutional removal of leaders fromoffice between 1946 and 2008 were carried out by regime insiders underscores the needfor institutionalized co-optation of elites.18 Even among close allies, leaders need toprovide for institutional means of conflict management because the biggest threat topersonalist rule comes from disgruntled regime insiders who lack political voice.19 Butinstitutionalization comes at a price. Once established, institutions tend to acquire a life oftheir own therefore necessitating constant monitoring and counterbalancing.20

Precisely because of this, institutional development is never unidirectional but tendsto be characterized by reversals depending on the prevailing circumstances and thepreferences of those with de facto power to alter the structure of existing institutions.21

But even among those with de facto power, the extent to which leaders can alterinstitutions is limited. Path dependence limits the possibilities for institutional reforms;while at the same time the embeddedness of institutions with socio-cultural practices andestablished norms serve to define the meaning of political action, thereby circumscribingthe menu of options available to incumbent leaders conscious about maintainingstability.22 President Jomo Kenyatta demonstrated this understanding in a speech in1966 while opening the KANU reorganization conference in Limuru. In his speech hereminded KANU members that:

We have inherited institutions which may not be very suitable for the temperaments of ourpeople. On the other hand, it is very easy to think that the only formula is to discard theseinstitutions for new ones. But such a move must always be carefully weighed becauseexperience elsewhere has proved that such new institutions are not always successful.23

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Faced with the reality (as was Kenyatta) that they cannot always control importantinstitutions, most leaders try to make important those institutions that they can control.

This paper reaffirms the fact that despite the well-documented historical preponder-ance of personal rule and high levels of elite political stability in Africa, those institutionshave always played an important role in African politics. The region’s institutions havehad varying degrees of importance, with leaders employing different permutations ofinformal and formal institutions designed to preserve incumbent coalitions in powerthrough patronage networks.24 This means that if we are to grasp fully the impact of thethird wave of democratization on institutional development in Africa, we ought not viewthe institutionalization of politics in the region as a post-1989 phenomenon occasioned bydiscontinuities arising from the external shock that was the end of the Cold War.25

Instead, it is important to articulate the many ways in which African institutions remainedresilient in the face of autocratic assault, and in so doing maintained the potential for re-emergence as has happened in a number of African states following re-democratization inthe early 1990s.

In the recent past, a number of African countries have seen attempts by presidents toextend their rule by abolishing term limits defeated by their legislatures. Furthermore,countries in which opposition parties have been competitive in the legislature havewitnessed greater levels of democratic consolidation, including in the improvement of thequality of elections.26 In Kenya, the parliament has maintained its position as a keyinstitution of state even during periods of autocratic rule. Over the last five decades theinstitution has served as an arena for intra-elite competition for political power andeconomic resources and a link between the government and the masses. As is arguedbelow, the Kenyan legislature’s centrality to the nation’s politics was not merely to servetransient political ends of different rulers; it also facilitated the legislative body’sinstitutionalization.

But what exactly is legislative institutionalization? Working in the context of theUnited States Congress, Nelson Polsby has developed measures of institutionalizationthat can be applied to the Kenyan context.27 These include: (1) insulation from the pre-vailing political trends and cycles; (2) a high degree of internal differentiation andcomplexity; and (3) resource autonomy and capacity enhancement. Based on these mea-sures of institutionalization, the Kenyan Parliament fares reasonably well on two out ofthe three indicators. As is depicted in the results of the 2013 elections, the institution stillfares poorly with regard to insulation from prevailing political trends and cycles. Themembership turnover rate remains high and members’ reelection prospects are tightlycoupled with the prevailing political trends (anchored around presidential elections) in thedifferent regions of the country. In legislatures that are more institutionalized, electedmembers tend to have reasonable security of tenure through the cultivation of a personalvote.28

The high turnover rates remain a challenge to institutionalization of the Kenyanlegislature. This is because the development of internal differentiation and complexitywill require a minimum number of career politicians that are able to rise through the ranksand to provide institutional memory from one parliament to the next. An opportunity forthis exists with the new institutional arrangement in the country in which would beMNAs and senators can cut their teeth in elected lower offices in the counties. Evidencefrom other contexts suggests that experienced politicians stand a higher chance of bothelection and reelection.29 Furthermore, although highly speculative at this point, thelikelihood of permanent national coalitions (on account of the rules of the presidential

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election discussed below) could also provide incentives for politicians to invest in betterpolitical machines at the constituency level thus enhancing their chances of reelection.

On the remaining two measures of institutionalization the Kenyan Parliament doesfairly well. The institution has adequate autonomy and is in control of its budget andcalendar. Its internal rules and procedures of debate (as outlined in the Standing Orders)are fairly in line with members’ preferences. There are no restrictions on the introductionof private member bills as was the case with previous parliaments.30 The institution hasalso recently developed a functioning committee system, a complete departure from thepast when nearly all matters were addressed in plenary on the floor of the house.31 Theinstitutional capacity has also recently been enhanced through the hiring of legal drafters(previously the house relied on the attorney general to draft bills) and the establishment ofthe Parliamentary Budget Office to assist members with their oversight duties relating tothe budget and overall public finance management. The recent codification of these gainsin the Kenyan Constitution and enabling legislation has its roots in a much earlier time, towhich this paper now turns.

Agency in tight corners: politics and Institutionalization of the Kenyan Parliament32

From the time Eliud Mathu was appointed as the first African to the Legislative Council(LEGCO) in 1944, parliament has remained at the heart of Kenyan politics. In thepreceding 37 years the institution had existed in exclusive service of the minority settlercommunities of Europeans and Asians. Mathu served as the sole African in the counciluntil the late 1950s when eight African Members were appointed, and then later onelected. The independence parliament in 1963 was bicameral. The House of Representa-tives had 129 members – 117 elected from constituencies and 12 specially elected by thelegislature. The Senate had 41 members representing each of the 41 districts in thecountry. Similar to the current institutional arrangement, the Senate was designed toprotect the interests of the districts its members represented.

Constitutional safeguards provided both houses of parliament with sufficient power tocheck the executive. The president was elected by members of House of Representativesand was therefore, at least nominally, politically accountable to the house. To protectsettler interests and those of the smaller tribes, the constitution provided a high thresholdof amendment on matters touching on entrenched interests. Any constitutional amend-ments relating to fundamental rights, the Senate, the judiciary, land, citizenship and region-alist structure of government required a 90% majority of the Senate. Other constitutionalamendments also required approval by 75% of the Senate.33

Besides the constitutional provisions and entrenched powers of both houses ofparliament, the relative strength of the legislative branch was also enhanced by the factthat following independence President Kenyatta did not have complete control over theruling party KANU.34 The party was founded when Kenyatta was in prison and wasrocked by factionalism and disorganization from the outset. Conservative Tom Mboyaand James Gichuru clashed with leftist Oginga Odinga and Bildad Kaggia over the extentof economic and institutional reforms following independence. In his autobiographyOdinga makes the observation that “KANU was never a strongly centralized party but anamalgam of many diverse tendencies and policies.”35

Not being a founding party member, Kenyatta showed little interest in strengtheningKANU. He left most party matters in the hands of the feuding Mboya and Odinga, withpower oscillating between the two until the latter was defeated in the infamous LimuruConference of 1966.36 The extent of Kenyatta’s lack of complete control over the party is

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shown by the fact that even though he had sided with the conservative wing of the partyhe still allowed the Oginga–Kaggia faction to establish the Lumumba institute – aninstitution designed to train party cadres in the model of parties in the Eastern Bloc. Withinparliament, debates were vigorous, reflecting not only the KANU–opposition divide butalso intra-KANU differences of opinion. In the first two years of independence, theKANU backbenchers effectively played the role of the opposition.37 Over this periodthe government saw defeats or serious legislative challenges on important matters suchas the creation of the East Africa Federation; formation of sessional committees; andthe passing of supplementary budgetary estimates.

Indeed, even after the merger of KANU and KADU (Kenya African DemocraticUnion) in 1965, the House of Representatives remained an arena for the airing of divergentopinions, as demonstrated by the House’s Rice Index of Cohesion. The Rice Index iscalculated as the absolute difference between the proportion of party members voting infavor of a resolution and the proportion of party members voting in opposition, multipliedby 100 to obtain a number between 0 and 100. Higher values indicate greater intra-partycohesion. Instead of increasing, the House of Representatives’ Rice Index of Cohesiondipped from 41.4 to 39.9 after the dissolution of KADU.38 The division among membersof the House of Representatives was even bigger – with a Rice Index of 29.1 – if onlyKANU members are considered.

Unable to establish complete control through the existing institutional environment ofparty and legislature, Kenyatta opted to regulate political activity through the powerfulprovincial administration, which he used to limit the political space.39 He (and hissuccessors) also used the powerful bureaucratic state that he had inherited from thecolonial administration to usurp some of parliament’s policy-making powers.40 Brieflystated, Kenyatta sought to make important what he could control, while at the same timetrying to weaken parliament, an institution which on account of its colonial inheritanceand tradition was still seen as important by politicians and the masses alike.41

But parliament, as an institution, never completely gave in. Its resilience was in partaided by the weakness of the ruling party KANU. The party’s weakness ensured thatinstead of policy disputes being settled within the party they often made their way to thefloor of the house.42 While other scholars have argued that the impact of KANU’sweakness was merely that it allowed for vigorous debate within parliament, this articleargues that the fact that these debates took place on the floor of the house facilitated itsinstitutionalization in the long run. Parliament gained stature in the eyes of politicians andthe public alike as an important institution of state. Furthermore, the executive could notjust ignore parliament as was happening at the time in other African countries. Instead,ministers were forced to prepare well for question time and Kenyatta himself had tointervene repeatedly to ensure that backbencher disgruntlement did not lead togovernment defeat on the floor of the house.43

When Kenyatta passed away in 1978, Moi inherited a parliament that was at itslowest in terms of legislative activity as measured by sittings per year (See Figure 1).Legislative activity measured by the cumulative length of bills debated in a given yearwas also on the decline (See Figure 2). Although parliament was to see worse politicalrestrictions on its activities in the mid to late 1980s, in terms of institutional functions itslowers point was the late 1970s. Moi’s political weakness at the beginning of his tenure in1979 provided an opportunity for the rejuvenation of parliamentary activity. LikeKenyatta, once in power Moi also used the provincial administration to regulate politicalactivity in the country. He went a step further and decided to revamp KANU, essentiallyfusing it with the state.44 By the mid-1980s the party had completely monopolized the

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political space following the 1982 Constitutional Amendment making Kenya a de jureone-party state; and the revision of the KANU constitution that created the dreadedKANU Disciplinary Committee.

Moi’s actions were yet another example of how incentives structure leaders’ choicesto invest in institutions. Kenyatta’s political position was secure, so he could governthrough the provincial administration and the civil service with a relatively politically freeparliament. Moi’s precarious political position on the other hand necessitated an addedtakeover of KANU as an institutional mechanism of incorporating regional ethnic elitesand regulating the political activities of parliament. The level of legislative efficiency –the rate at which the house passed bills – also went up, signaling Moi’s complete dom-ination of the National Assembly and the lack of debate over bills introduced in thehouse. Strictly speaking, throughout Kenya’s history it is only the 5th Parliament that canaccurately be described to have approximated a “rubber stamp” legislature. The rise in thenumber of sittings per year continued until they dipped again in the late 1980s to early1990s following increased political opposition and the reintroduction of multipartypolitics. But this did not last long and soon sittings per year rebounded back to theirtrending upward trajectory.

The lesson here is that institutional change and reform ought to be studied in thecontext of other interacting institutions. Strategies used by Kenyatta and Moi to dominatethe political environment (e.g. KANU, the provincial administration, and the civilservice) either directly or indirectly had a bearing on the institutional functions ofparliament. In certain periods these strategies contributed to greater institutionalization(whether intended or not) while in others they curtailed it. Due to his security in office(on account of the size of his ethnic base and his control over the provincialadministration and civil service), Kenyatta could afford to allow for political space inthe legislature. It is no wonder that under his rule parliamentary elections were relatively“free and democratic affairs.”45 Moi faced a completely different institutional andpolitical environment and so adopted a strategy of domination – the development of a

Figure 1. Number of sittings per year.

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party-state – that adversely impacted the chances of continued institutionalization of theKenyan legislature.

At this juncture it is important to note that critical to the resilience of the KenyanParliament in the face of assaults from both the Kenyatta and Moi administrations was itscolonial inheritance. The culture of vigorous debate and questioning of governmentinherited from the LEGCO persisted into the post-independence era.46 Institutionalmemory was also guaranteed by the retention of the neutral Humphrey Slade as Speakeruntil 1970 and minimal revision of the House Standing Orders.47

Under the administration of Mwai Kibaki (2003–13) the situation was akin to the firstthree years of independence. Kibaki came to power with little control over the party thatsponsored him and governed among political equals, many of them respected nationalpoliticians who led the opposition against Moi’s rule. The only difference was that thistime the National Assembly had amassed enough power to ward off any attempts tocurtail its authority in the manner that Kenyatta did. Furthermore, Kibaki knew that hewas term-limited and therefore did not have the incentive to invest in entrenching his ruleat the expense of the legislature. The concluding section discusses the current partystructure in parliament and its implications for the future of the Kenyan legislature. Withthis historical overview in mind, the paper now turns to the elections that constituted the11th Parliament of Kenya.

The 2013 Parliamentary Elections

Despite the expected high electoral turnover at the polls, 69.4% of members of the 10thParliament chose to run for either the National Assembly or the Senate, with a further12% running for the position of governor. An MP’s choice to run for the Senate (orgovernorship) was more likely if the MP had national name recognition and hadpreviously served as an MP. Reflecting the perceived premium of legislative experience

Figure 2. Completion rate and cumulative length of bills per year.

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in voters’ minds, MPs who opted to run for countywide office were more likely to run forthe Senate; and among those who ran for the Senate were more likely to win (38 ran,55.3% won) than those who ran for governorships (25 ran, 32% won). Out those whochose to run for a seat in either house 55.9% got elected back to parliament, a totalretention rate of 38.1% from the 10th Parliament.48 The vast majority of the electedmembers of the National Assembly (72%) are serving for the first time in parliament.

The National Assembly

The 2013 elections saw the expansion of the number of constituencies represented in theNational Assembly from 210 to 290. A total of 1,969 candidates contested the elections,which translates to an average of eight candidates per constituency. The median numberof candidates per constituency was seven. The least contested elections had two candi-dates (Banissa, Lafey, Lagdera, Mandera North, and Suna West) while the most contestedhad 19 candidates (Dagoretti North). The most competitive region was Nairobi, with tencandidates per contested seat on average. North Eastern region was the least competitive,with an average of four candidates per seat. There were issues of disparity in access tovoting ranging from 129 voters per poll station in Kacheliba Constituency of West PokotCounty to 10,655 voters per polling station in Embakasi Central in Nairobi County. Theaverage was about 943 voters per poll station.49

The election results reflected the political waves in the different regions, with candi-dates running on the same party ticket as the most popular presidential candidate in aparticular region doing well.50 In addition to the 290 members elected from constituen-cies, the National Assembly also 47 women representatives elected countywide from the47 counties. Among these representatives, the Orange Democratic Movement (ODM) has15, The National Alliance (TNA) 14, United Republican Party (URP) 10, WiperDemocratic Movement-Kenya (WDM-K) 6, and New Ford Kenya 2. Out of Kenya’s 59registered political parties, only 19 won seats in the National Assembly.51

There was marked regional concentration of party support. With the exception of theODM, all five major parties received at least 70% of their seats in parliament fromconstituencies where a majority of residents are of the same ethnicity as the party leader.Interestingly, the phenomenon of alliance-building and party consolidation at the nationallevel (incentivized by the 50% plus one rule in the presidential election) was not matchedby party consolidation at the regional level. Instead the national-level alliance buildinginfluenced sub-national party reorganization in different ways, depending on the region.

The most striking parliamentary reorganization was in Central Region where theNational Alliance scooped 91.2% of the seats, and the effective number of parties (ENP)shrank considerably. ENP is an index developed by Laakso and Taagepera that serves as ameasure of fragmentation of parties within a legislature, or in this case a region. ENP isdefined as: N − 1/(Σvi2), where N is the total number of parties; and v is the share of seatsfor each political party (denoted by i) in the region. Notice that the number of politicalparties only equals ENP when all parties have equal strength, otherwise ENP is alwayssmaller. This kind of derivation heavily discounts smaller parties. Following the 2007elections the Central Region had an effective number of parties score of 3.6, with eightparties winning seats in the National Assembly.52 In the 2013 election that number hadshrunk to 1.1, with only three parties securing seats. In all other regions the effectivenumber of parties either increased or stayed the same. This drastic reduction in the numberof viable parties in Central Region is evidence of the sheer power with which the UhuruKenyatta presidency captivated voters in the region. The claim by a local aspirant during

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the campaigns that the region should vote even for a dog if it donned TNA colors appearsto have been particularly prescient.

The biggest change in the reverse direction occurred in Western region where theeffective number of parliamentary parties increased from 1.4 to 3.7. Other regions’measure of party number variation between 2007 and 2013 include: Coast (2.1 to 2.6),Eastern (3.2 to 4.2), North Eastern (2.1, stayed the same), Nairobi (1.6 to 1.7), Nyanza(1.3 to 1.5), and the Rift Valley (1.5 to 2.0). Fragmentation was partly caused by the factthat broad national coalitions allowed disgruntled primary losers to run on other partytickets as long as they remained within the broader umbrella coalition of the givenregion’s preferred presidential candidate. Another reason might have been the increasedsalience of intra-regional political cleavages occasioned by the creation of countygovernments, which localized political competition to a greater degree than had beenwitnessed before.

The Senate

The Senate also had considerable regional concentration of seats won, again with theexception of the ODM that managed to get seats outside of its ethnic base. The moststriking thing about the new Senate is the technical capacity of its members. The firstSenate that was abolished in 1963 was remarkable for its lack of expertise andexperience. Only two of its members had university degrees and most of the memberslacked the capacity to engage in effective debate, let alone complex legislative activities.53

The original Senate’s technical weakness and ineffectiveness made it very easy for thoseopposed to having a bicameral legislature to abolish the house in late 1966. Indeed, it istelling that although the law allowed Kenyatta to appoint cabinet ministers from both theSenate and the National Assembly, all his ministers came from the latter house. Inaddition, the majority of the public (supporters of KANU) was sympathetic to thedissolution of the Senate since at the time regionalism was seen as a project of the “small”ethnic groups in collusion with settlers.

The new Senate is markedly different. It is composed of Kenya’s leading legal andprofessional minds. Although it attracted the most experienced members of the 10thParliament, the Senate is far from being a mere “retirement home” for past legislators.54

This was evident in how it handled the first instance in which it clashed with the NationalAssembly over the Division of Revenue Bill 2013. The bone of contention was whetheror not the Senate had any role to play in determining the division of revenues between thenational and county governments. Throughout the debate over the disagreement theNational Assembly contribution was largely characterized by simplistic and antagonisticdebate, a great contrast from the Senate, which was more measured and only focused onthe constitutionality of the issue at hand. Following the president’s assent to the bill theSenate filed a petition with the Supreme Court to determine the role, if at all, that it oughtto play in determining how national revenues are divided between the national and countygovernments. The resulting court decision will enhance the power of the Senate as itestablished that the Senate must contribute to all bills that touch on county governments,including money bills.

The prospects for the new Senate are thus relatively brighter than that of itspredecessor. Its life is guaranteed by the fact that this time round the vast majority of thepublic supports the system of devolution. Furthermore, the current institutional structurecreates a natural alliance between senators and county governors. And because governorsare mini-executives on the ground, they remain key players in national politics. They can

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make or break a presidential candidate. This political reality means that any tenant of statehouse would think twice before directly antagonizing the Senate like happened in the firstfour years of Kenya’s independence.

Conclusions

The Kenyan legislature has come a long way in terms of levels of institutionalization andrelative strength vis-à-vis the executive. While most of these gains were only codifiedbetween the late 1990s and 2010, the legislature’s quest for autonomy goes back to thevery first post-independence parliament. The 2013 elections ushered in a new eraof parliamentary strength and autonomy. As has been shown above, both houses ofparliament show significant regional concentration of parties – a symptom of thecontinued nationalization of politics in the country. But at the same time there appears tobe an uptick in the levels of intra-regional party fragmentation.

Moving forward, a few things will determine how the new institutional set upperforms. Firstly, the relationship between the Senate and the National Assembly willdetermine whether both houses will act as a unified check on the executive or whetherthey will be divided (to the advantage of the executive) as has already happened with theDivision of Revenue Bill. The powers of the Senate are limited to legislation regardingcounty governments and the impeachment of the president. However, institutional poweroften does not follow defined limits but depends a great deal on the type and capacity ofofficeholders.55 The Senate’s membership of seasoned politicians will no doubt continueto test the limits of their authority. How both the National Assembly and State Housereact to these attempts will determine whether the country functions smoothly or waversfrom one constitutional crisis to another.

Secondly, the ruling Jubilee Alliance’s dominance of both the Senate and NationalAssembly will have a non-trivial impact on the functions and independence of the 11thParliament. The dominance of President Kenyatta in Central Region (as evidenced by theshrinking ENP in the region) and that of Ruto in Kalenjin Rift Valley is ominous forcontinued strength and independence of the Kenyan legislature. In the current parliamentboth URP and TNA have sought to behave like strong parties, keen on party disciplineand cohesion. It is clear that in order to get re-elected current MPs in the Jubilee coalitionmust remain in good terms with the executive, a factor that will clearly impact theirindependence as legislatures and by extension that of parliament as an independent andequal arm of government. To take a historical perspective, the current system begins toapproximate the period when Moi dominated KANU and MPs owed their election andreelection to Moi via the KANU secretariat. The only difference here is that thedominance of the executive over elected members’ chances for re-election is not throughparty organization but through the complete capture of the electorate in their respectivehome regions (at least in the latest political cycle) by the leading two politicians in theexecutive arm of government.

Thirdly, beyond the life of this parliament, it is likely that there will be greater intra-regional party fragmentation especially as competition for county seats makes local intra-ethnic political cleavages more apparent. As is shown above, already this election saw anincrease in the effective number of parties within all regions except Central Region.Based on the historical record outlined in this paper, this trend bodes well for thecontinued institutionalization of the legislature. In the Kenyan context strong parties havetended to undermine legislative strength. Continued localization of politics will also most

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likely decouple parliamentary elections from the presidential race thereby affordingMNAs the chance to cultivate a personal vote.

Lastly, more research needs to be done to understand how the absence of theexecutive from parliament will affect parliamentary functions. As it is, the leaders ofmajorities in both the Senate and National Assembly have been the chief spokespeoplefor the executive in both Houses. The effects of the executive’s absence in parliament willbe felt most acutely if there is ever a divided government, with the majority party inParliament being the opposition party. In addition, the emerging committee system, withattendant issues regarding specialization and expertise; agenda-setting and gate-keepingpowers; and the possibility of the emergence of greater numbers of career politicians inthe legislature will also require research attention as they will have significant impact onthe continued evolution of parliamentary strength in Kenya.

Notes1. Phrase from Tordoff and Molteno, “Government and Administration,” p. 254.2. Business Daily, “Independent Body Should Vet Nominees.”3. For discussions on the importance of legislatures as institutions of limited government, see

North and Weingast, “Constitutions and Commitment”; and Acemoglu et al. “Institutions as theFundamental Cause.”

4. Barkan and Matiangi, “Kenya’s Tortuous Path,” p. 240.5. Barkan, “African Legislatures,” p. 22.6. The World Bank, Country Data: Kenya.7. Barkan, “Legislatures on the Rise?,” p. 129.8. Opalo, “Africa Elections,” p. 84.9. Daily Nation, “House No Longer a Toothless Bulldog.”10. Barkan, “African Legislatures”; see also the discussions in Gertzel, Politics of Independent

Kenya.11. Friedrich and Brzezinski, Totalitarian Dictatorship and Autocracy, p. 15.12. Jackson and Rosberg, Personal Rule, 16.13. Pitcher et al., “Rethinking Patrimonialism and Neopatrimonialism,” p. 127.14. Chabal and Daloz, Africa Works, p. 162.15. Wright, “Do Authoritarian Institutions Constrain?,” p. 342; Gandhi, Political Institutions Under

Dictatorship, pp. 97–9.16. Wright and Escriba-Folch, “Authoritarian Institutions and Regime Survival,” p. 302; Gandhi

and Przeworski, “Authoritarian Institutions and the Survival,” p. 1292.17. Levi, Of Rule and Revenue, p. 10.18. Slovik, Politics of Authoritarian Rule, p. 4.19. Roessler, “Enemy Within,” p. 302.20. For discussions on the relative power of administrators vis-à-vis rulers, see Greif, “Impact of

Administrative Power,” pp. 17–55.21. Onoma, Politics of Property Rights Institutions, p. 6; Acemoglu and Robinson, Economic

Origins of Dictatorship, pp. 151–3.22. Greif and Laitin, “Theory of Endogenous Institutional Change,” pp. 636–9.23. Special Correspondent, “Realignment in Kenyan Politics,” pp. 14–15.24. Bratton, “Formal Versus Informal Institutions.”25. Posner and Young, “Institutionalization of Political Power,” p. 130; Opalo, “African Elections,”

pp. 85–6; Bratton, “Formal Versus Informal Institutions,” pp. 108–9.26. For an exploration of the importance of African legislatures in the democratization process, see

Opalo, “African Elections.”27. Polsby, “Institutionalization of the U.S. House of Representatives.”28. Cain et al., Personal Vote, p. 111.29. For a discussion of the rise of incumbency advantage in the United States Congress, see Cox

and Katz, “Why Did the Incumbency Advantage.”30. The National Assembly of Kenya, Standing Orders.31. Nakamura and Johnson, “Rising Legislative Assertiveness,” p. 18.

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32. The phrase “agency in tight corners” is borrowed from Lonsdale, “Agency.”33. Kirui and Murkomen, “Legislature,” p. 6.34. Bienen, Kenya, p. 66.35. Odinga, Not Yet Uhuru, p. 247.36. An often-ignored fact is that the appointment of Josephat Murumbi to replace Odinga was an

attempt by Kenyatta, who realized the strength of the radical wing of KANU, to appease theradicals. Murumbi was a Pan-Africanist and a loose ally of Odinga who also sat on the board ofthe Lumumba Institute.

37. Gertzel, Politics of Independent Kenya, p. 40.38. The Rice index is a measure of cohesion within an organization and takes values between

0 (impasse) and 100 (consensus); Stultz, “Parliament in a Tutelary Democracy,” pp. 106–7.39. Branch and Cheeseman, “Politics of Control in Kenya,” p. 14.40. Ibid., pp. 23–4.41. See the discussion in Gertzel, Politics of Independent Kenya, pp. 125–43.42. Gertzel, Government and Politics in Kenya, p. 10.43. Gertzel, Politics of Independent Kenya, p. 138.44. Widener, Rise of a Party-State in Kenya, pp. 143–5.45. Throup, “Elections and Political Legitimacy,” p. 381.46. Gertzel, Government and Politics in Kenya, p. 10.47. This is according to the contents of various issues of the Standing Orders of the National

Assembly.48. These figures only include the elected Members of the 10th Parliament from the 210

constituencies.49. Republic of Kenya, Kenya Gazette.50. Besides five independent candidates, the other parties included Ford Kenya (ten candidates),

KANU (6), Alliance Party of Kenya (5), New Ford Kenya (4), Federal Party of Kenya (3), FordPeople (3), National Alliance Rainbow Coalition (3), Chama Cha Uzalendo (2), KenyaNational Congress (2), Narc-Kenya (1), Maendeleo Party (1), People’s Democratic Party (1),Muungano Party (1), and KADU Asili (1).

51. This is the number of registered parties in 2013 according to the Independent Electoral andBoundary Commission (IEBC).

52. Laakso and Taagepera, “Effective Number of Parties,” pp. 4–9.53. Proctor, “Role of the Senate,” p. 411.54. The Standard, “Senate is Not Retirement Home of Sorts.”55. Stasavage, Public Debt and the Birth, pp. 99–129.

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