The dual allegiance of representatives: Analysing the mandate of representation in Kenya

By Brian Kipchumba*

The adoption of the Constitution of Kenya 2010 and the establishment of the sovereignty clause brought a wave of hope to the Kenyan populace.^[i] However, fourteen years later, this ideal seems far from reality. Citizens have become the servants instead. The legislature, which ought to represent the people's interests, has become a tool for the executive to pass legislations that contradict the will of the people.

This blog seeks to analyse how voting in parliament is manipulated to align with the interests of the executive, side lining the input of the sovereign. Additionally, it will explore how the party system restricts elected officials to the agendas of their affiliated political parties. Thus, the legislators are faced with two choices; to abide by what the party wants or the people's will with the shadow of party disciplinary measures over their backs.

Sovereign power is exercised both directly and indirectly.^[ii] Indirect exercise of power traces its origins from the social contract theory where the people enter into a contract with the government by relinquishing some of their rights in exchange for the protection of other rights.^[iii] Essentially, the legitimacy of the government is derived from its citizens. There are two schools of thought when it comes to the mandate of representation; popular sovereignty and national sovereignty.

Popular sovereignty represents the collective authority of all citizens. In line with this theory, the imperative mandate obliges members of parliament to adhere to the directives of their constituents, fulfilling any recommendations regarding that particular constituency. Collective responsibility only follows after constituent needs.^[iv]

While the concept of an imperative mandate, where representatives strictly adhere to the constituent demands, may not be the most practical solution for Kenya's problems, popular sovereignty remains key. It emphasises citizen participation and transparency which enables Kenyans to ensure that their leaders are chosen fairly and held accountable.

National sovereignty is the most widely used form by many legislators across the globe. Under national sovereignty, the parliament is empowered by the nation to act within the boundaries set by the country's constitution. Edmund Burke notes that parliament is a deliberative assembly representing the unified interest of the entire nation, guided by the common good derived from collective reasoning. Once elected, MPs do not represent specific localities but the nation as a whole.^[v]

In Kenya members of parliament represent a wide array of cultural, ethnic, and social backgrounds^[vi]. Their role is to serve the interests of the entire nation and not just specific groups or individuals. This collective representation ensures that the voice of the whole nation is heard in the legislative process. By doing so, they uphold the principle of national sovereignty.

In the theory of national sovereignty, a member of parliament's mandate is general and representative; general because they represent the whole nation, not just a specific group of voters and representative because they are not bound by directives from their electorate (free mandate).^[vii]A parliament operating under this type of mandate acts as an intermediary between the sovereign and its will as it is within parliamentary proceedings, where the sovereign's will is aggregated and expressed.^[viii]

The free mandate is widely recognised as an essential, though not sufficient, guarantee for democracy. It reduces formal ties between members of parliament and their constituencies, making them susceptible to influences from other sources, particularly political parties.^[ix] Therefore, if the party system and broader political mechanisms fail to allow people to influence the political process effectively, the free mandate might be detrimental to democracy.

Political parties significantly influence parliamentary activities and members' conduct as it is clear that they often assume a dominant role in guiding how members of parliament perform their parliamentary duties. Since the transition to a multi-party system, the ruling party (or coalition) has often held a majority that is strong enough to pass legislations with minimal opposition. This dominance frequently leads to a 'game of numbers' after elections, where the ruling party attempts to sway independent candidates and opposition parties to join their coalition. This can be seen in the recent general elections in Kenya where the ruling coalition poached independent candidates to its side.^[x]

The question that then arises is whether legislators can oppose bills when their party lines say the contrary. This question has its complexities with internal disciplinary actions against members that go against the party line. The Political Parties Act^[xi] elaborates the importance of party structures in solving party disputes between a party and its members. These disputes may arise from contravention of the party's constitution with each party having its constitution. The Deputy President in his speech to the nation admitted that the ruling party serves the interest of the government^[xii] and that once the government has a program the members of parliament of that party must 'toe' the line in terms of political formation.^[xiii]

Expulsion is the main form of disciplinary action taken against untoward party members. For instance, Article 4.5 of the Constitution of the United Democratic Alliance and Article 12 of the Constitution of the Orange Democratic Movement provide for the grounds for termination of membership. One of the grounds being, subscribing to and promoting activities that go against the party's interests.

The threat of expulsion serves as a deterrent against dissent within the party. Members of parliament are likely to conform with what the party wants, even ifit contradicts the will of their constituents because of the fear of losing their party membership. In 2023 ODM party leader Raila Odinga expelled five Members of Parliament for voting with the Kenya Kwanza government.^[xiv] Consequently, members who defied the party's stance on the finance bill by voting for or against it face potential expulsion. Both Minority Whip Junet Mohammed and his UDA counterpart Samson Cherargei have hinted at imminent disciplinary action against these members.^[xv]

This dynamic is clear in the context of the Finance Bill 2024.Members of Parliament were under tremendous pressure to support the bill in accordance with party directions, regardless of the views of their constituents. The party leadership's tight control on members of parliament assures vote coherence and uniformity, even if it comes at the expense of individual members of parliament's responsiveness to their constituents. This is an example of political parties prioritising centralised agendas over grassroots feedback, resulting in a weakened relationship between members of parliament and the population. The population's response to their will being disregarded is best exemplified by the action of constituents looting and burning their representative's property to signal discontent; an example being Molo member of parliament Kimani Kuria whose home was vandalised.^[xvi]

The Finance Bill 2024, like many significant legislative proposals, was a test of party discipline and cohesion. Members of parliament who might have had reservations about certain provisions of the bill or contrary views from their constituents were compelled to prioritise party loyalty. This situation underscores how political parties have altered traditional mechanisms of political representation and accountability, as members of parliament increasingly find their roles defined by party alignment rather than constituent advocacy.

Considering the current state of the Kenyan legislative framework, this paper advocates for the adoption of popular sovereignty. This school of thought emphasises citizen participation and holds representatives accountable to their constituents. By advocating for active citizen engagement through public forums, transparent governance, and independent media, popular sovereignty ensures that the voices of the people are heard and respected in every decision made in parliament.

The Gen Z uprising in Kenya, where young people have actively demanded greater transparency, accountability, and participation in political processes embodies popular sovereignty principles, showcasing the power of citizen engagement in influencing legislative and executive actions. This revolution has led to the government succumbing to pressure and withdrawing the finance bill illustrating how citizens do have the power.^[xvii]

* The author is an undergraduate student at Kabarak University School of Law

[i] The Constitution of Kenya through its preamble establishes the aspect of ''we" the people. Article 1 (1) enforces this, positioning the government as a servant accountable to the people.

[ii] Constitution of Kenya (2010), Article 1(2).

[iii] John Locke, Two Treatises of Government (Books on Demand 1690), McMaster University Archive of the History of Economic Thought, 141, para 87.

[iv] Lorraine Smith Pangle, 'The political philosophy of Benjamin Franklin (The Political Philosophy of the American Founders)', Johns Hopkins University Press, 2007, 149. Collective responsibility in this instance refers to national responsibility, where the interests of the whole nation as a whole is given priority.

[v] Edmund Burke, 'Speech to the Electors of Bristol'Bristol, 3 November 1774 - The Founders' Constitution (University of Chicago Press)< [vi] Constitution of Kenya (2010) Article 94(2).