Kennedy Opalo a a Department of Political Science, Stanford University, Stanford, CA, USA Published online: 27 Jan 2014.

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1 This article was downloaded by: [ ] On: 15 September 2014, At: 19:02 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: Registered office: Mortimer House, Mortimer Street, London W1T 3JH, UK Journal of Eastern African Studies Publication details, including instructions for authors and subscription information: The long road to institutionalization: the Kenyan Parliament and the 2013 elections Kennedy Opalo a a Department of Political Science, Stanford University, Stanford, CA, USA Published online: 27 Jan To cite this article: Kennedy Opalo (2014) The long road to institutionalization: the Kenyan Parliament and the 2013 elections, Journal of Eastern African Studies, 8:1, 63-77, DOI: / To link to this article: PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the Content ) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at

2 Journal of Eastern African Studies, 2014 Vol. 8, No. 1, 63 77, The long road to institutionalization: the Kenyan Parliament and the 2013 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 region characterized by rubber stamp parliaments? And how do the results of the 2013 election affect the chances of continued strengthening and institutionalization of the Kenyan legislature? This paper addresses these questions by situating the evolution of parliamentary strength and institutionalization in Kenya in the context of the country s political history since independence. The argument advanced is that although the codification of the gains in parliamentary strength and independence only began to take place in the late 1990s, the process that led to the realization of these gains goes back to the first parliament after independence. The paper also analyzes the impact of the constitutional requirement of 50% plus one in the presidential race on party structures in different parts of the country. The findings suggest that while the 2013 elections were marked by a heightened sense of inter-regional alliance-building for the presidential race, at the sub-national level the effective number of parties increased in all 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. This event marked a complete departure from the era of ministerial musical chairs when cabinet appointments and reshuffles were conducted almost impulsively through dispatches to newsrooms. 1 Although the vetting process itself fell short of desired standards, it was a pointer to the relative power of the Kenyan Parliament as an independent arm of government. 2 The imperial presidency that had dominated Kenyan politics for over four decades was no more, signaling a heightened chance of the consolidation of limited government through parliamentary oversight. 3 Just over two years before, the 2010 Constitution created in Kenya what is arguably Africa s strongest parliament, 4 with a complete separation of powers; fairly competitive remuneration; and complete autonomy with regard to the parliamentary budget and calendar. 5 Kenyan presidents can no longer control the legislature through ministerial appointments. Presently, Kenyan MPs earn about US$141,000 per year. While this pay level remains controversial, especially considering that per capita income in Kenya is a paltry US$808, 6 there is some justification for competitive remuneration of members as it * kopalo@stanford.edu 2014 Taylor & Francis

3 64 K. Opalo insulates the legislature from control by the executive through patronage. 7 To put things in 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 is not necessarily a guarantee of MPs independence from the executive, but it certainly increases the cost of patronage for the incumbent president through the process of patronage inflation. 8 In many ways the Kenyan Parliament is no longer a toothless bulldog but a body that has tremendously improved both its technical capacity and political independence from the executive. 9 It is in this context of a relatively strong and still evolving institution that the 2013 General Elections took place. The elections ushered in the re-establishment of the bicameral legislature (abolished in late 1966), with a 349-member National Assembly and a 67-member Senate. Members of the National Assembly (MNAs) were elected from 290 constituencies and the 47 counties (women representatives), and 12 nominated proportionately by political parties in proportion to their parliamentary strength. Senators were elected from each of the 47 counties and an additional 20 proportionately nominated by political parties to represent special interest groups, including 16 women, two youth and two persons living with disabilities. This paper analyzes the 2013 parliamentary elections in the context of the politics of the historical institutionalization of the Kenyan legislature. Although the 2013 elections occurred under a completely different constitutional environment, in many ways they exhibited a continuation of the dynamics of parliamentary elections in Kenya since independence. Just like in past elections, the nationalized nature of Kenyan politics (with a biased focus on presidential elections) led to a situation in which party politics mattered a lot more than incumbent (parliamentary) aspirants performance in determining the outcome of elections. In addition, local politics around patronage and access to public resources also played a non-trivial role in determining aspirants performance. The 2013 elections also witnessed a high turnover of MPs, with almost three-quarters of all elected members serving for the first time. Despite the continued failure of MPs to develop a personal vote and reliable political bases in their respective constituencies, the 11th Parliament was constituted as the strongest yet (at least formally) in Kenya s history. A question that arises is how the outcome of the 2013 elections will impact the continuing process of institutionalization of the Kenyan legislature. This paper seeks to answer this question through an analysis of the dynamics that have thus far shaped the evolution of the Kenyan legislature and how those same dynamics will be impacted by the outcome of the 2013 elections. In doing so it seeks to revise the prevailing notion that the observed strengthening of the Kenyan Parliament is a phenomenon that only resulted from the reform movement that began after the reintroduction of multiparty politics in the early 1990s; and that in prior periods the Kenyan Parliament was a mere rubber stamp legislature with little to no impact on government policy. 10 Instead, it takes the view that throughout Kenya s post-independence history, the strength and authority of parliament relative to the executive has always been contested. The paper further argues that the strategies employed by the executive to dominate the political space through the Provincial Administration, the party Kenya African National Union (KANU), and the bureaucracy were as much a result of the executive s inability to challenge directly the institution 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 the political space actually served to facilitate the institutionalization and thereby the strengthening of parliament in the long run.

4 Journal of Eastern African Studies 65 Institutions under autocracy In 1966 Carl Friedrich and Zbigniew Brzezinski argued that institutions in autocratic states did not matter since all control rested with the autocrat. 11 In other words, institutions in non-democracies were epiphenomenal. This view has for a long time informed the study of African politics. The predominance of personalized political rule in Africa has sometimes led scholars to argue that institutions do not exist in the region, 12 or are severely patrimonialized to the extent that they lack formal meaning. 13 Others have argued that institutions in Africa perform little to no role since the state has been hijacked by vested interests that thrive in the resultant disorganization and institutional vacuum. 14 While rightfully highlighting the numerous challenges facing the institutionalization of politics in Africa, these works have, in the main, failed to recognize the important role institutions (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 epiphenomenal. State and political institutions such as parties and legislatures are important arenas for policy formulation and intra-elite negotiation even in dictatorships. 15 Indeed the empirical evidence shows that institutions have a significant impact on regime survival, with leaders who institutionalize their rule surviving longer in office than their more personalistic counterparts. 16 The advantage of institutionalization of rule arises from the fact that dictators in power require both compliance and cooperation from fellow elites and the masses alike. Institutions therefore exist as an arena for the ruler to give concessions to opposition groups and regulate intra-elite competition in a peaceful and predictable manner. This is because all rulers, whether autocratic or not, have an incentive to devise structures to facilitate exchange and increase their marginal rate of return. 17 This reality applies to both the economic and the political spheres, and is especially important as far as intra-elite relations within a state are concerned. The fact that more than two thirds of extra-constitutional removal of leaders from office between 1946 and 2008 were carried out by regime insiders underscores the need for institutionalized co-optation of elites. 18 Even among close allies, leaders need to provide for institutional means of conflict management because the biggest threat to personalist rule comes from disgruntled regime insiders who lack political voice. 19 But institutionalization comes at a price. Once established, institutions tend to acquire a life of their own therefore necessitating constant monitoring and counterbalancing. 20 Precisely because of this, institutional development is never unidirectional but tends to be characterized by reversals depending on the prevailing circumstances and the preferences 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 alter institutions is limited. Path dependence limits the possibilities for institutional reforms; while at the same time the embeddedness of institutions with socio-cultural practices and established norms serve to define the meaning of political action, thereby circumscribing the menu of options available to incumbent leaders conscious about maintaining stability. 22 President Jomo Kenyatta demonstrated this understanding in a speech in 1966 while opening the KANU reorganization conference in Limuru. In his speech he reminded KANU members that: We have inherited institutions which may not be very suitable for the temperaments of our people. On the other hand, it is very easy to think that the only formula is to discard these institutions for new ones. But such a move must always be carefully weighed because experience elsewhere has proved that such new institutions are not always successful. 23

5 66 K. Opalo Faced with the reality (as was Kenyatta) that they cannot always control important institutions, most leaders try to make important those institutions that they can control. This paper reaffirms the fact that despite the well-documented historical preponderance of personal rule and high levels of elite political stability in Africa, those institutions have always played an important role in African politics. The region s institutions have had varying degrees of importance, with leaders employing different permutations of informal and formal institutions designed to preserve incumbent coalitions in power through patronage networks. 24 This means that if we are to grasp fully the impact of the third wave of democratization on institutional development in Africa, we ought not view the institutionalization of politics in the region as a post-1989 phenomenon occasioned by discontinuities 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 remained resilient in the face of autocratic assault, and in so doing maintained the potential for reemergence as has happened in a number of African states following re-democratization in the early 1990s. In the recent past, a number of African countries have seen attempts by presidents to extend their rule by abolishing term limits defeated by their legislatures. Furthermore, countries in which opposition parties have been competitive in the legislature have witnessed greater levels of democratic consolidation, including in the improvement of the quality of elections. 26 In Kenya, the parliament has maintained its position as a key institution of state even during periods of autocratic rule. Over the last five decades the institution has served as an arena for intra-elite competition for political power and economic resources and a link between the government and the masses. As is argued below, the Kenyan legislature s centrality to the nation s politics was not merely to serve transient political ends of different rulers; it also facilitated the legislative body s institutionalization. But what exactly is legislative institutionalization? Working in the context of the United States Congress, Nelson Polsby has developed measures of institutionalization that can be applied to the Kenyan context. 27 These include: (1) insulation from the prevailing political trends and cycles; (2) a high degree of internal differentiation and complexity; and (3) resource autonomy and capacity enhancement. Based on these measures of institutionalization, the Kenyan Parliament fares reasonably well on two out of the three indicators. As is depicted in the results of the 2013 elections, the institution still fares poorly with regard to insulation from prevailing political trends and cycles. The membership turnover rate remains high and members reelection prospects are tightly coupled with the prevailing political trends (anchored around presidential elections) in the different regions of the country. In legislatures that are more institutionalized, elected members tend to have reasonable security of tenure through the cultivation of a personal vote. 28 The high turnover rates remain a challenge to institutionalization of the Kenyan legislature. This is because the development of internal differentiation and complexity will require a minimum number of career politicians that are able to rise through the ranks and to provide institutional memory from one parliament to the next. An opportunity for this exists with the new institutional arrangement in the country in which would be MNAs and senators can cut their teeth in elected lower offices in the counties. Evidence from other contexts suggests that experienced politicians stand a higher chance of both election and reelection. 29 Furthermore, although highly speculative at this point, the likelihood of permanent national coalitions (on account of the rules of the presidential

6 Journal of Eastern African Studies 67 election discussed below) could also provide incentives for politicians to invest in better political machines at the constituency level thus enhancing their chances of reelection. On the remaining two measures of institutionalization the Kenyan Parliament does fairly well. The institution has adequate autonomy and is in control of its budget and calendar. 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 introduction of private member bills as was the case with previous parliaments. 30 The institution has also recently developed a functioning committee system, a complete departure from the past when nearly all matters were addressed in plenary on the floor of the house. 31 The institutional 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 of the Parliamentary Budget Office to assist members with their oversight duties relating to the budget and overall public finance management. The recent codification of these gains in the Kenyan Constitution and enabling legislation has its roots in a much earlier time, to which this paper now turns. Agency in tight corners: politics and Institutionalization of the Kenyan Parliament 32 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 the preceding 37 years the institution had existed in exclusive service of the minority settler communities of Europeans and Asians. Mathu served as the sole African in the council until the late 1950s when eight African Members were appointed, and then later on elected. The independence parliament in 1963 was bicameral. The House of Representatives had 129 members 117 elected from constituencies and 12 specially elected by the legislature. The Senate had 41 members representing each of the 41 districts in the country. Similar to the current institutional arrangement, the Senate was designed to protect the interests of the districts its members represented. Constitutional safeguards provided both houses of parliament with sufficient power to check the executive. The president was elected by members of House of Representatives and was therefore, at least nominally, politically accountable to the house. To protect settler interests and those of the smaller tribes, the constitution provided a high threshold of amendment on matters touching on entrenched interests. Any constitutional amendments relating to fundamental rights, the Senate, the judiciary, land, citizenship and regionalist structure of government required a 90% majority of the Senate. Other constitutional amendments also required approval by 75% of the Senate. 33 Besides the constitutional provisions and entrenched powers of both houses of parliament, the relative strength of the legislative branch was also enhanced by the fact that following independence President Kenyatta did not have complete control over the ruling party KANU. 34 The party was founded when Kenyatta was in prison and was rocked by factionalism and disorganization from the outset. Conservative Tom Mboya and James Gichuru clashed with leftist Oginga Odinga and Bildad Kaggia over the extent of economic and institutional reforms following independence. In his autobiography Odinga makes the observation that KANU was never a strongly centralized party but an amalgam of many diverse tendencies and policies. 35 Not being a founding party member, Kenyatta showed little interest in strengthening KANU. He left most party matters in the hands of the feuding Mboya and Odinga, with power oscillating between the two until the latter was defeated in the infamous Limuru Conference of The extent of Kenyatta s lack of complete control over the party is

7 68 K. Opalo shown by the fact that even though he had sided with the conservative wing of the party he still allowed the Oginga Kaggia faction to establish the Lumumba institute an institution designed to train party cadres in the model of parties in the Eastern Bloc. Within parliament, debates were vigorous, reflecting not only the KANU opposition divide but also intra-kanu differences of opinion. In the first two years of independence, the KANU backbenchers effectively played the role of the opposition. 37 Over this period the government saw defeats or serious legislative challenges on important matters such as the creation of the East Africa Federation; formation of sessional committees; and the passing of supplementary budgetary estimates. Indeed, even after the merger of KANU and KADU (Kenya African Democratic Union) in 1965, the House of Representatives remained an arena for the airing of divergent opinions, as demonstrated by the House s Rice Index of Cohesion. The Rice Index is calculated as the absolute difference between the proportion of party members voting in favor of a resolution and the proportion of party members voting in opposition, multiplied by 100 to obtain a number between 0 and 100. Higher values indicate greater intra-party cohesion. Instead of increasing, the House of Representatives Rice Index of Cohesion dipped from 41.4 to 39.9 after the dissolution of KADU. 38 The division among members of the House of Representatives was even bigger with a Rice Index of 29.1 if only KANU members are considered. Unable to establish complete control through the existing institutional environment of party and legislature, Kenyatta opted to regulate political activity through the powerful provincial administration, which he used to limit the political space. 39 He (and his successors) also used the powerful bureaucratic state that he had inherited from the colonial administration to usurp some of parliament s policy-making powers. 40 Briefly stated, Kenyatta sought to make important what he could control, while at the same time trying to weaken parliament, an institution which on account of its colonial inheritance and 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 part aided by the weakness of the ruling party KANU. The party s weakness ensured that instead of policy disputes being settled within the party they often made their way to the floor of the house. 42 While other scholars have argued that the impact of KANU s weakness was merely that it allowed for vigorous debate within parliament, this article argues that the fact that these debates took place on the floor of the house facilitated its institutionalization in the long run. Parliament gained stature in the eyes of politicians and the public alike as an important institution of state. Furthermore, the executive could not just 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 to intervene repeatedly to ensure that backbencher disgruntlement did not lead to government defeat on the floor of the house. 43 When Kenyatta passed away in 1978, Moi inherited a parliament that was at its lowest 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 year was also on the decline (See Figure 2). Although parliament was to see worse political restrictions on its activities in the mid to late 1980s, in terms of institutional functions its lowers point was the late 1970s. Moi s political weakness at the beginning of his tenure in 1979 provided an opportunity for the rejuvenation of parliamentary activity. Like Kenyatta, once in power Moi also used the provincial administration to regulate political activity in the country. He went a step further and decided to revamp KANU, essentially fusing it with the state. 44 By the mid-1980s the party had completely monopolized the

8 Journal of Eastern African Studies 69 Figure 1. Number of sittings per year. political space following the 1982 Constitutional Amendment making Kenya a de jure one-party state; and the revision of the KANU constitution that created the dreaded KANU Disciplinary Committee. Moi s actions were yet another example of how incentives structure leaders choices to invest in institutions. Kenyatta s political position was secure, so he could govern through the provincial administration and the civil service with a relatively politically free parliament. Moi s precarious political position on the other hand necessitated an added takeover of KANU as an institutional mechanism of incorporating regional ethnic elites and 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 domination of the National Assembly and the lack of debate over bills introduced in the house. Strictly speaking, throughout Kenya s history it is only the 5th Parliament that can accurately be described to have approximated a rubber stamp legislature. The rise in the number of sittings per year continued until they dipped again in the late 1980s to early 1990s following increased political opposition and the reintroduction of multiparty politics. But this did not last long and soon sittings per year rebounded back to their trending upward trajectory. The lesson here is that institutional change and reform ought to be studied in the context of other interacting institutions. Strategies used by Kenyatta and Moi to dominate the political environment (e.g. KANU, the provincial administration, and the civil service) either directly or indirectly had a bearing on the institutional functions of parliament. 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 provincial administration and civil service), Kenyatta could afford to allow for political space in the legislature. It is no wonder that under his rule parliamentary elections were relatively free and democratic affairs. 45 Moi faced a completely different institutional and political environment and so adopted a strategy of domination the development of a

9 70 K. Opalo Figure 2. Completion rate and cumulative length of bills per year. party-state that adversely impacted the chances of continued institutionalization of the Kenyan legislature. At this juncture it is important to note that critical to the resilience of the Kenyan Parliament in the face of assaults from both the Kenyatta and Moi administrations was its colonial inheritance. The culture of vigorous debate and questioning of government inherited from the LEGCO persisted into the post-independence era. 46 Institutional memory was also guaranteed by the retention of the neutral Humphrey Slade as Speaker until 1970 and minimal revision of the House Standing Orders. 47 Under the administration of Mwai Kibaki ( ) the situation was akin to the first three years of independence. Kibaki came to power with little control over the party that sponsored him and governed among political equals, many of them respected national politicians who led the opposition against Moi s rule. The only difference was that this time the National Assembly had amassed enough power to ward off any attempts to curtail its authority in the manner that Kenyatta did. Furthermore, Kibaki knew that he was term-limited and therefore did not have the incentive to invest in entrenching his rule at the expense of the legislature. The concluding section discusses the current party structure in parliament and its implications for the future of the Kenyan legislature. With this historical overview in mind, the paper now turns to the elections that constituted the 11th Parliament of Kenya. The 2013 Parliamentary Elections Despite the expected high electoral turnover at the polls, 69.4% of members of the 10th Parliament chose to run for either the National Assembly or the Senate, with a further 12% running for the position of governor. An MP s choice to run for the Senate (or governorship) was more likely if the MP had national name recognition and had previously served as an MP. Reflecting the perceived premium of legislative experience

10 Journal of Eastern African Studies 71 in voters minds, MPs who opted to run for countywide office were more likely to run for the 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 who chose to run for a seat in either house 55.9% got elected back to parliament, a total retention rate of 38.1% from the 10th Parliament. 48 The vast majority of the elected members 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 the National 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 number of candidates per constituency was seven. The least contested elections had two candidates (Banissa, Lafey, Lagdera, Mandera North, and Suna West) while the most contested had 19 candidates (Dagoretti North). The most competitive region was Nairobi, with ten candidates 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 to voting ranging from 129 voters per poll station in Kacheliba Constituency of West Pokot County to 10,655 voters per polling station in Embakasi Central in Nairobi County. The average was about 943 voters per poll station. 49 The election results reflected the political waves in the different regions, with candidates running on the same party ticket as the most popular presidential candidate in a particular region doing well. 50 In addition to the 290 members elected from constituencies, the National Assembly also 47 women representatives elected countywide from the 47 counties. Among these representatives, the Orange Democratic Movement (ODM) has 15, The National Alliance (TNA) 14, United Republican Party (URP) 10, Wiper Democratic Movement-Kenya (WDM-K) 6, and New Ford Kenya 2. Out of Kenya s 59 registered political parties, only 19 won seats in the National Assembly. 51 There was marked regional concentration of party support. With the exception of the ODM, all five major parties received at least 70% of their seats in parliament from constituencies 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 national level (incentivized by the 50% plus one rule in the presidential election) was not matched by party consolidation at the regional level. Instead the national-level alliance building influenced sub-national party reorganization in different ways, depending on the region. The most striking parliamentary reorganization was in Central Region where the National 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 a measure of fragmentation of parties within a legislature, or in this case a region. ENP is defined as: N 1/(Σvi 2 ), where N is the total number of parties; and v is the share of seats for each political party (denoted by i) in the region. Notice that the number of political parties only equals ENP when all parties have equal strength, otherwise ENP is always smaller. This kind of derivation heavily discounts smaller parties. Following the 2007 elections the Central Region had an effective number of parties score of 3.6, with eight parties winning seats in the National Assembly. 52 In the 2013 election that number had shrunk to 1.1, with only three parties securing seats. In all other regions the effective number of parties either increased or stayed the same. This drastic reduction in the number of viable parties in Central Region is evidence of the sheer power with which the Uhuru Kenyatta presidency captivated voters in the region. The claim by a local aspirant during

11 72 K. Opalo the campaigns that the region should vote even for a dog if it donned TNA colors appears to have been particularly prescient. The biggest change in the reverse direction occurred in Western region where the effective 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 fact that broad national coalitions allowed disgruntled primary losers to run on other party tickets as long as they remained within the broader umbrella coalition of the given region s preferred presidential candidate. Another reason might have been the increased salience of intra-regional political cleavages occasioned by the creation of county governments, which localized political competition to a greater degree than had been witnessed before. The Senate The Senate also had considerable regional concentration of seats won, again with the exception of the ODM that managed to get seats outside of its ethnic base. The most striking thing about the new Senate is the technical capacity of its members. The first Senate that was abolished in 1963 was remarkable for its lack of expertise and experience. Only two of its members had university degrees and most of the members lacked 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 those opposed to having a bicameral legislature to abolish the house in late Indeed, it is telling that although the law allowed Kenyatta to appoint cabinet ministers from both the Senate and the National Assembly, all his ministers came from the latter house. In addition, the majority of the public (supporters of KANU) was sympathetic to the dissolution 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 and professional minds. Although it attracted the most experienced members of the 10th Parliament, 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 National Assembly over the Division of Revenue Bill The bone of contention was whether or not the Senate had any role to play in determining the division of revenues between the national and county governments. Throughout the debate over the disagreement the National Assembly contribution was largely characterized by simplistic and antagonistic debate, a great contrast from the Senate, which was more measured and only focused on the constitutionality of the issue at hand. Following the president s assent to the bill the Senate filed a petition with the Supreme Court to determine the role, if at all, that it ought to play in determining how national revenues are divided between the national and county governments. The resulting court decision will enhance the power of the Senate as it established 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 its predecessor. Its life is guaranteed by the fact that this time round the vast majority of the public supports the system of devolution. Furthermore, the current institutional structure creates a natural alliance between senators and county governors. And because governors are mini-executives on the ground, they remain key players in national politics. They can

12 Journal of Eastern African Studies 73 make or break a presidential candidate. This political reality means that any tenant of state house would think twice before directly antagonizing the Senate like happened in the first four years of Kenya s independence. Conclusions The Kenyan legislature has come a long way in terms of levels of institutionalization and relative strength vis-à-vis the executive. While most of these gains were only codified between the late 1990s and 2010, the legislature s quest for autonomy goes back to the very first post-independence parliament. The 2013 elections ushered in a new era of parliamentary strength and autonomy. As has been shown above, both houses of parliament show significant regional concentration of parties a symptom of the continued nationalization of politics in the country. But at the same time there appears to be an uptick in the levels of intra-regional party fragmentation. Moving forward, a few things will determine how the new institutional set up performs. Firstly, the relationship between the Senate and the National Assembly will determine whether both houses will act as a unified check on the executive or whether they will be divided (to the advantage of the executive) as has already happened with the Division of Revenue Bill. The powers of the Senate are limited to legislation regarding county governments and the impeachment of the president. However, institutional power often does not follow defined limits but depends a great deal on the type and capacity of officeholders. 55 The Senate s membership of seasoned politicians will no doubt continue to test the limits of their authority. How both the National Assembly and State House react to these attempts will determine whether the country functions smoothly or wavers from one constitutional crisis to another. Secondly, the ruling Jubilee Alliance s dominance of both the Senate and National Assembly will have a non-trivial impact on the functions and independence of the 11th Parliament. The dominance of President Kenyatta in Central Region (as evidenced by the shrinking ENP in the region) and that of Ruto in Kalenjin Rift Valley is ominous for continued strength and independence of the Kenyan legislature. In the current parliament both URP and TNA have sought to behave like strong parties, keen on party discipline and cohesion. It is clear that in order to get re-elected current MPs in the Jubilee coalition must remain in good terms with the executive, a factor that will clearly impact their independence as legislatures and by extension that of parliament as an independent and equal arm of government. To take a historical perspective, the current system begins to approximate the period when Moi dominated KANU and MPs owed their election and reelection to Moi via the KANU secretariat. The only difference here is that the dominance of the executive over elected members chances for re-election is not through party organization but through the complete capture of the electorate in their respective home regions (at least in the latest political cycle) by the leading two politicians in the executive arm of government. Thirdly, beyond the life of this parliament, it is likely that there will be greater intraregional party fragmentation especially as competition for county seats makes local intraethnic political cleavages more apparent. As is shown above, already this election saw an increase 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 the continued institutionalization of the legislature. In the Kenyan context strong parties have tended to undermine legislative strength. Continued localization of politics will also most

13 74 K. Opalo likely decouple parliamentary elections from the presidential race thereby affording MNAs the chance to cultivate a personal vote. Lastly, more research needs to be done to understand how the absence of the executive from parliament will affect parliamentary functions. As it is, the leaders of majorities in both the Senate and National Assembly have been the chief spokespeople for the executive in both Houses. The effects of the executive s absence in parliament will be felt most acutely if there is ever a divided government, with the majority party in Parliament being the opposition party. In addition, the emerging committee system, with attendant issues regarding specialization and expertise; agenda-setting and gate-keeping powers; and the possibility of the emergence of greater numbers of career politicians in the legislature will also require research attention as they will have significant impact on the continued evolution of parliamentary strength in Kenya. Notes 1. Phrase from Tordoff and Molteno, Government and Administration, p 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 the Fundamental Cause. 4. Barkan and Matiangi, Kenya s Tortuous Path, p Barkan, African Legislatures, p The World Bank, Country Data: Kenya. 7. Barkan, Legislatures on the Rise?, p Opalo, Africa Elections, p 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 Jackson and Rosberg, Personal Rule, Pitcher et al., Rethinking Patrimonialism and Neopatrimonialism, p Chabal and Daloz, Africa Works, p Wright, Do Authoritarian Institutions Constrain?, p. 342; Gandhi, Political Institutions Under Dictatorship, pp Wright and Escriba-Folch, Authoritarian Institutions and Regime Survival, p. 302; Gandhi and Przeworski, Authoritarian Institutions and the Survival, p Levi, Of Rule and Revenue, p Slovik, Politics of Authoritarian Rule, p Roessler, Enemy Within, p For discussions on the relative power of administrators vis-à-vis rulers, see Greif, Impact of Administrative Power, pp Onoma, Politics of Property Rights Institutions, p. 6; Acemoglu and Robinson, Economic Origins of Dictatorship, pp Greif and Laitin, Theory of Endogenous Institutional Change, pp Special Correspondent, Realignment in Kenyan Politics, pp 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 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 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.

14 Journal of Eastern African Studies The phrase agency in tight corners is borrowed from Lonsdale, Agency. 33. Kirui and Murkomen, Legislature, p Bienen, Kenya, p Odinga, Not Yet Uhuru, p 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 the radicals. Murumbi was a Pan-Africanist and a loose ally of Odinga who also sat on the board of the Lumumba Institute. 37. Gertzel, Politics of Independent Kenya, p 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 Branch and Cheeseman, Politics of Control in Kenya, p Ibid., pp See the discussion in Gertzel, Politics of Independent Kenya, pp Gertzel, Government and Politics in Kenya, p Gertzel, Politics of Independent Kenya, p Widener, Rise of a Party-State in Kenya, pp Throup, Elections and Political Legitimacy, p Gertzel, Government and Politics in Kenya, p 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), Ford People (3), National Alliance Rainbow Coalition (3), Chama Cha Uzalendo (2), Kenya National 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 and Boundary Commission (IEBC). 52. Laakso and Taagepera, Effective Number of Parties, pp Proctor, Role of the Senate, p The Standard, Senate is Not Retirement Home of Sorts. 55. Stasavage, Public Debt and the Birth, pp References Acemoglu, Daron, and James Robinson. Economic Origins of Dictatorship and Democracy. New York, NY: Cambridge of the University Press, Acemoglu, Daron, Simon Johnson, and James Robinson. Institutions as the Fundamental Cause of Long-Run Growth. In Handbook of Economic Growth, edited by P. Aghion and S. Durlauf. New York, NY: North-Holland, Barkan, Joel D. African Legislatures and the Third Wave of Democratization. In Legislative Power in Emerging African Democracies, edited by Joel Barkan, Boulder, CO: Lynne Rienner, Barkan, Joel D. Legislatures on the Rise? Journal of Democracy 19, no. 2 (2008): doi: /jod Barkan, Joel D., and Fred Matiangi. Kenya s Tortuous Path to Successful Legislative Development. In Legislative Power in Emerging African Democracies, edited by Joel Barkan, Boulder, CO: Lynne Rienner, Bienen, Henry. Kenya:The Politics of Participation and Control. Princeton, NJ: Princeton University Press, Branch, Daniel, and Nicholas Cheeseman. The Politics of Control in Kenya: Understanding the Bureaucratic Executive State, Review of African Political Economy 107 (2006): doi: / Bratton, Michael. Formal Versus Informal Institutions in Africa. Journal of Democracy 18, no. 3 (2007): doi: /jod

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