Extensive reforms aim to strengthen Kenya's legal and political climate

Kenya’s political system rests heavily on the executive branch of the government, with the president holding significant influence on the configuration and operation of the state. The 2010 constitutional reform has ushered in a number of reforms that have been widely regarded as a positive step towards a more equitable political system. However, discrepancies and clashes experienced during the 2017 elections came as a signal of a deeper socio-political divide.

Constitution

The configuration of the powers of the state, political and social rights, and the structure of the electoral regime of Kenya are expressed in the 1963 constitution that has been amended four times in its history: in 1982, 1986, 1991 and 2010.

The latest revisions from 2010 introduced a number of important changes with the idea of creating a more decentralised political system, which included limiting presidential powers; establishing a new system of 47 local counties, replacing the previous eight provinces and 46 districts; creating an upper house in Parliament, the Senate; founding a bicameral legislative system, where each of the 47 counties will have a Senator elected by voters; and separating powers between the three arms of government at the national level: the executive, legislative and judiciary.

Presidential System

In terms of Kenya’s presidential system, the country is defined as a representative democratic republic, in which sovereignty is exercised by the people through democratically elected representatives. The country’s executive level of government is held by the president who is both head of state and of government, and is elected to a five-year term by popular vote. In order to be elected, the candidate must win the majority of overall votes and at least 25% of the votes in a majority of the country’s 47 newly created counties. The president has the power to elect members of its cabinet of ministers, and the vice-president has the capacity to assign high court judges and electoral commissioners. One of the political challenges faced in Kenya was the presidential faculty to elect district and provincial commissioners, extending presidential influence to the counties, David Anderson, director of the African Studies Centre at the University of Oxford, told international media in early 2018. Since 2010 this has been partially fixed by the democratisation of the electoral process for local governments.

Legislature

The legislative branch is bicameral and consists of a lower house, the National Assembly, and an upper house, the Senate. The former is the main law-making body of the government and has 349 seats, while the Senate represents the interests of the counties and their governments and has 67 members. Each chamber has specific duties: the upper house only has jurisdiction over bills that concern county governments, whereas the National Assembly has authority over all other matters including spending and taxation.

Judiciary

The judicial branch is comprised of two main courts and several smaller courts, the first of which are the Supreme Court and the Courts of Appeal. The former is the highest court in Kenya, comprised of a chief justice, a deputy chief justice and five associate justices, with all candidates nominated by the president from a pre-approved group – which is chosen by an independent body, the Judicial Services Commission – and then voted upon by the National Assembly.

The court is the final arbiter in cases involving the constitutionality of statutes and is the only body able to hear and determine disputes relating to presidential elections. Below this is the Court of Appeal, which consists of a minimum of 12 judges and hears appeals made on matters decided by the lowest superior court, the High Court, which has unlimited jurisdiction in all civil and criminal matters. Under these superior courts are some subordinate ones, such as the permanent peace courts, the district peace courts, and those that manage issues related to sharia law. After the violence that followed the 2007 elections, with the help of UN Observer the International Development Law Organisation (IDLO), the judicial system underwent a reform process that aimed to create a greater level of independence between the courts and the executive, with the judiciary also implementing several IDLO recommendations following the 2017 elections.

Party System

The Kenyan political system has undergone a considerable amount of changes over a relatively short period. In 1992 the country adopted a multi-party system, meaning that several entities can compete in elections, compared to the previous one-party system. As a result, different parties have configured various alliances and coalitions in varying contexts. Until 1992 the Kenya African National Union was the country’s sole political party.

Foreign Policy

Kenya plays a major role in regional relations, in particular towards peacekeeping efforts in Central Africa. Some of the country’s greatest efforts have been in Somalia, in response to the large number of the country’s refugees in Kenyan territory, and the regional presence of terrorist groups such as Somalia’s Al Shaabab. Moreover, Kenya has positioned itself as a key player in multilateral organisations such as the African Union, COMESA and the EAC. Outside of the continent Kenya has maintained relations with several countries including the UK, given the two countries’ colonial ties and Kenya’s status as a Commonwealth member. Bilateral relations between the two countries remain close in the areas of security, trade and foreign direct investment. Indeed, the UK is one of Kenya’s largest trading partners, ranking as its third-largest export market after Uganda and the US in 2015, according to data from the Kenya National Bureau of Statistics.

In addition, over the past decade Kenya has strengthened ties with other partners such as India and China. The government’s 2014 official foreign policy document, for example, states, “Kenya seeks to diversify its economic relationships and partnerships, with increased focus on emerging economies and economic zones.” As a result, China has emerged as the largest foreign investor in Kenya, and an example of this is the $3.6bn Standard-Gauge Railway project connecting Mombasa and Nairobi funded by the Export-Import Bank of China. Meanwhile, given Kenya and India’s historical ties and the fact that the latter is one of the former’s largest trading partners, India offers development assistance to Kenya in the form of loans and credit.

For instance, in January 2017 a $100m line of credit agreement was signed between the two countries towards agricultural mechanisation.

Electoral System

The country’s electoral system guarantees the right to vote for all citizens through free and universal suffrages every five years, for both parliamentary and presidential elections. According to the 2010 constitution, Kenya’s electoral body is the Independent Electoral and Boundaries Commission (IEBC), which is responsible for the conduct and supervision of all referendums and public elections, with the IEBC’s members elected by the president. In addition, Kenyan law establishes the right to a secret ballot, the right to assembly and participation in political parties, and the right for all citizens to compete in the elections.

Presidential Elections

The President is chosen every five years on the same day as the parliamentary elections by popular vote. It is a system of absolute majority with a first presidential round among all competing candidates, who must obtain 51% of the votes to win the election and 25% of the votes in at least half of the counties. If no candidate is able to meet either of these criteria, a second round of voting is required. Following the opposition’s boycott of the 2017 election an amendment was added to the election guidelines in October of that same year, stating that if one of the candidates were to abandon the race their opponent automatically wins the presidency.

Devolution

One of the hallmarks of the 2010 constitution was the shift towards a more decentralised policy providing stronger autonomy to 47 newly established local counties, providing them with the power to manage their own development plans with regards to agriculture, health care, transport, trade, planning and development and pre-primary education. Certain devolved measures have also given counties the right to levy their own taxes and fees.

Each county government consists of an assembly and an executive, which are both directly elected by their constituents. Funding from the central government is determined by a county’s size in terms of both population and of area, as well as levels of poverty, with the poorest counties receiving priority financing. County governments have autonomy over the design and details of local spending plans, but the national government also ensures fiscal responsibility through the National Treasury, which has oversight over county spending and ensures that they adhere to their plans, as well as broader development goals.

The main aim of devolution is to ensure a more equitable distribution of power and resources, to enable stronger citizen participation and political accountability. Moreover, devolution has brought new opportunities such as the delivery of services and has been able to tackle gender inequality in political representation.

Falling Out

On August 7, 2018 general elections were held in Kenya to elect the president, members of parliament and devolved governments. Uhuru Kenyatta won the election with 54% of the vote, but his opponent Raila Odinga refused to accept the results, citing a lack of credibility and flaws in the electoral system. While the first results were subsequently annulled, and new elections held in October, the results of the parliamentary and local elections remained. Two weeks before the Supreme Court ordered a presidential re-run, Odinga boycotted the election, resulting in Kenyatta’s win with 98% of the votes, with the latter subsequently sworn in for his second term on November 28, 2017.

Despite the conflicts and casualties that ensued following the 2017 elections, the results did not break out into the same violent aftermath experienced in 2007. After months of political division and demonstrations, a political truce between President Kenyatta and his main opponent marked the end of an ongoing dispute. In March 2018 the two agreed to work together in the interests of Kenya, sealing the agreement with a handshake. “Kenyans should overcome this negative cycle by acting on the understanding that elections on their own are not the solution to our national challenges,” they said in a joint statement at that same time.

Outlook

Kenyans see economic growth as intrinsically linked to democratic success. Thus, a better economic situation, improved employment prospects and higher wages, translate into a better quality of life. While the new constitution has widely been regarded as a positive step with a more balanced separation of powers, a new Senate, a more independent judiciary and a greater delegation of power to counties, the country still needs to overcome certain structural challenges.