Our thirteenth Parliament has well and truly begun work, and whatever honeymoon period may have existed is winding down. Soon Kenyans will want to know if the National Assembly and Senate will achieve much to speak of.
As things stand, we would be wise to moderate any hopes. The legislature will always be hobbled by the voice vote, that old custom that comes into its own whenever MPs wish to increase their salaries or pass legislation with dubious majorities. Votes cast by shouting ‘Aye’ and ‘Nay’ are inherently defective because nobody ever knows exactly who, or exactly how many people, shouted ‘Aye’.
In contrast, when members vote by division, each member’s name is recorded next to his or her vote, and publishing these lists helps citizens understand how their representatives vote and how well they represent their interests.
To find out how often the house votes by acclamation, I went to the websites of the National Assembly and the Senate and downloaded the motion trackers for each house. Throughout the twelfth Parliament from 2017 to 2022, the motion trackers on the National Assembly’s website show less than two motions a year, on average, went to division. For the Senate, the motion trackers show about 10 motions a year go to division, an improvement on the National Assembly.
According to Mugambi Laibuta, a constitutional lawyer, the increased frequency of roll call votes in the Senate is to be expected. “Most of the senators represent a single county. So votes around allocation of revenue among counties would go to division, for example.”
The obvious limitations of voting by acclamation were exposed in the September 2018 fiasco over the Finance Bill 2018. When President Uhuru Kenyatta declined to assent to it, the national assembly voted by acclamation on the president’s proposed amendments, sitting as the committee of the whole house.
To cries of “Zero! Zero! Zero!”, the chairperson, Roselinda Tuya, ruled that the Ayes had prevailed despite being clearly and ear splittingly outshouted by the Nays. “Zero! Zero! Zero!” they yelled. Later, with the Speaker, Justin Muturi, in the chair, the “Ayes” incredibly continued to have it, amidst absolute chaos and bedlam. The House had gone mad.
In that year’s annual report, the Clerk of the National Assembly reflected on those events, noting that even if the Nays were louder that day, a ruling in their favour would have effectively meant they had met the two thirds majority required to reject the President’s proposed amendments, yet there was no hard evidence of that. The report recommended:
“it is proposed that…future votes on the President’s reservations may have to be proceeded with through a Division. This will bring clarity on whether those desirous of rejecting the President’s proposals number at least two-thirds as provided for in Article 115(4) of the Constitution.”
Dr. Ken Opalo, an Assistant Professor at Georgetown University agreed that voting by acclamation makes it more difficult to hold members accountable. “Yes, it is a failure of leadership and accountability that Parliament relies so much on voice votes,” he said, adding that while in theory any MP could call for a division, there exists a strong culture in the National Assembly that just a few “crucial” votes were worthy of votes on the record. “Ideally, one would want to see ever more on-the-record votes from legislators as a way of demonstrating to their constituents where they stand.”
Further evidence of this chaos comes from Fiji, where in 2021, the Speaker of the House of Representatives decided that voting henceforth was to be by acclamation instead of by the usual electronic or roll call votes. Three lawyers writing in the Fiji Times complained that “Now we do not know how any MP has voted on any Bill. We do not even know if a majority of MPs voted to make it the law.”
In leading parliamentary democracies, votes by division are far more frequent. In the UK House of Commons, from 1 January to 11 November 2022, a total of 212 votes were held by division. In Canada over the same period, 198 votes went to division. So far in the second Session of the 117th congress (a session lasts one year), the US House of Representatives has held more than 500 roll-call votes, with the votes by all members of Congress published. In these countries, people can say with confidence that they know how their representatives voted.
“When they are voting for some very controversial Bill, they never go for division,” Mr. Laibuta says of Kenya’s MPs. “How can an individual MP be held to account for voting on specific legislation or policy if the vote is by acclamation? When you are dealing with legislation or sectoral reports, I need to know how my MP voted.”
Laibuta also noted that voting by acclamation allows MPs to straddle two positions, being outspoken outside the House while voting according to the party line inside it, and adds that knowing how many sittings an MP attended or how often they speak is not enough. “We need to find out how they voted for this or that motion.”
Kenyans want to know which individual MPs support increasing their salaries, or VAT on fuel, or importing genetically modified foods. They also need to know that laws were passed by the majorities required under the law. Electronic voting is here and Parliament’s website works, so Parliament should post those votes online and stop the “Ayes” and “Nays”. Those shouting matches don’t work.