Negotiated democracy has been described as the practice of agreeing on how to distribute political positions in advance of an election. In Kenya, this practice has been popular in the North-Eastern region. Specifically, this method came into the limelight in the post 2010 constitution era, when various clans in the North-Eastern region agreed on how to share positions to contribute to harmonious coexistence and avert marginalization of smaller clans. In that region, the method has had mixed results, sometimes succeeding and other times flopping. The big question is whether this method promotes inclusivity as a principle of democracy or hampers it.
In the run up to the 2022 general elections, negotiated democracy was adopted into mainstream politics through the Political Parties Amendment Act, 2021. Courtesy of the Act, negotiated democracy manifested itself through consensus building, opinion polling, interviewing aspirants and zoning by coalition parties - all these happened within political parties. The Act made it possible for political parties to conduct nominations as we know them traditionally, through party members directly electing those they want to represent them at the ballot. Secondly, the law legalized indirect nomination where parties decided to use methods such as using opinion polls, consensus, interviews, and the use of delegates from registered members to identify the strongest candidate.
Since the latter (Negotiated Democracy) was new without any formal structures, it was subjected to manipulation. In a country where most duty bearers have a challenge in adhering to the rule of law, the method left so many casualties who were negotiated out of the race. Majority of the victims were special interest groups (SIGs) such as women, youth and persons living with disability who lacked the wherewithal to influence. Many who underwent the process of negotiated democracy attest that the process was vague and unfriendly.
Where opinion polls were used - the science behind it was in doubt and therefore lacked authenticity. Where “consensus” was used it bordered between intimidation and coercion largely because party honchos had preferred candidates. Aspirants were asked to cede their political aspirations in support of more 'favorable' aspirants. However, it was not clear what parameters were used to determine the said 'favorable'. In several cases, an individual's financial capability (or lack of it) was used to give or deny party tickets, regardless of one's popularity. Seeking recourse was difficult because the methods had a backing of the law in their muddled-up form.
Worryingly, the 2022 elections occurred without campaign financing regulations. The campaign financing regulatory vacuum meant that incumbents and those with influence and connections seeking elective office raised inordinate amounts of money from questionable sources and spent this money with no accountability. The lack of an elections campaign financing framework and legalization of indirect methods of party nominations negated the aspiration of the Constitution of an inclusive governance system contemplated in Articles, 1, 10, 27, 38, 81 and 91 of the constitution. In a study conducted by Mzalendo Trust, the findings show that most of the women and youth surveyed (87.5%) overwhelmingly indicated that they found it difficult to raise campaign finances for their campaigns in the 2022 general elections. In Kenya’s patriarchal culture, women and youth do not control wealth. As such, financing campaigns is very difficult.
Therefore, women and youth were subjected to unfair methods of nomination, and often because they were more vulnerable owing to their marginalized status. In most cases, they were edged out of getting party tickets. Negotiated democracy, which was supposed to work to increase the participation of women and youth in politics, was unfortunately systematically and consistently used to disenfranchise this group. If they were perceived to be popular, there would be the hurdle of finances. Political parties seemed to favor aspirants who had money to finance their campaigns as well as contribute to the party coffers and were less willing to give party tickets to individuals who had ‘no money’.
In future there is a need to align the Act and the entire electoral legal framework to the spirit of our constitution, especially when it comes to national values of public participation and inclusion. More importantly, a judicial interpretation of the concept of negotiated democracy and its application in the Kenyan political context should be sought to provide guidance moving forward.
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