Post by Ghais Opinion Ed on Nov 12, 2005 0:49:01 GMT 3
Electing MPs under Wako Draft could be very tricky
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Prof yash pal ghai
The primary function of an electoral system is the election of the representatives of the people in the legislature or the executive. But the electoral system can have an impact on politics and society in a number of other ways.
It can affect the stability of government, particularly in a parliamentary system, in influencing the development of a two-party or multi-party political system.
More fundamentally, by recognising the sovereignty of the people, elections serve to legitimise state and institutions.
Free and open elections and campaigns are critical for these objectives.
Because an electoral system serves so many purposes, it cannot be judged by a single criterion, and few systems achieve all these objectives in equal measure.
We were told by Kenyans that they wanted a system which enables the participation of all communities and groups in the legislature and the executive; and elections that were fairly conducted.
The current system (of single member constituencies, where the winner is the candidate who gets most votes) can produce very unrepresentative results.
In a parliamentary system this can result in a Government preferred by a minority of voters, or the dominance of the legislature by a party that enjoys less than majority support among the people.
Parliament is currently unrepresentative in other ways – there are few women, few persons with disabilities and few members of small minorities.
There are 12 nominated members, to represent mysterious ‘special interests’, who appointed by political parties, are used for patronage purposes.
All three Drafts have tackled this problem as well as that of inclusiveness.
In order to make representative more proportional and inclusive, the CKRC Draft proposed the New Zealand system: with representation from single member constituencies, supplemented by additional MPs – about one-third of the House – who would come from party lists and be chosen to bring the overall make-up of Parliament closer to the voters’ preferences.
So if 30 percent of voters supported Party A, that party would get about 30 percent of the seats and so on.
Bomas chose a more complicated system.
In addition to regular constituencies, each district would be a special constituency with a woman MP and there would be 14 members representing ‘marginalized communities and groups’.
These included groups that suffer discrimination, like persons with disability (PWDs), but also covered smaller ethnic groups, pastoralists or isolated groups.
The aim was to achieve a principle that 5 percent of the National Assembly should represent PWDs, youth and marginalized groups. It did not, however, deal with the problem of ‘unproportional’ representation.
The Referendum Draft, refining the Kilifi Draft, adopts another new system drawing on the earlier ones. The primary method of elections will continue to be single member constituencies. The list system would be used to promote the inclusion of women, youth and workers (as examples of ‘special interests’) and PWD (there is reference to marginalised communities or groups).
Extra representation for women can be ensured in one of two ways, or a combination of the two: the creation by Parliament of special constituencies for women or nomination from party lists. Five percent of the total MPs must be persons with disabilities (of whom at least one-third must be women) and another 5 percent must represent ‘special interests’— both groups drawn from party lists.
Party lists must be submitted before the elections. Each party’s entitlement to the additional seats is proportionate to its share of the national vote — which therefore also introduces an element of overall proportionality of representation.
Each election will produce a different number of women elected for ordinary constituencies.
So in each election the total number, including the extra MPs, will be different.
Suppose there is a general election with the following results, in an election with no special seats for women, but just 220 constituencies: Party A gets 55 percent of the votes but 60 percent of the seats — 132 seats, Party B gets 30 percent of the votes and 25 percent of the — 55 seats, Party C gets 10 percent of the vote but 15 percent of the seats — 33 seats and Party D gets 5 percent of the votes but no seats. Let us assume that there are 10 women MPs.
In order to get one-third women we shall need around 129 more (I reached this figure unscientifically by trial and error).
These extra MPs would be distributed between the 4 parties in proportion to their overall votes, taking account of the need to have PWDs, special interest people and women.
One third of the PWD must be women – no more, no less! Some of the ‘special interest’ members might also be women. The result would be 349 MPs distributed as follows:
Party A: 201 or 58.3% of the total
Party B: 93 or 28.4%
Party C: 45 or 13%
Party D: 6 or 1.7%
There would be 17 PWDs, 17 ‘special interest’ members and 95 additional women.
The result is not as ‘proportional’ as the system recommended in the CKRC Draft would have done, because that Draft required the extra MPs to be allocated so as to achieve a Parliament as closely as possible reflecting the parties’ share of votes.
The alternative system, special constituencies for women, would require fewer extra women MPs. How these constituencies would be organised is uncertain (whether based on districts or other criteria, and in the former case, uncertainty would result from any increase or reduction in number of districts).
Some things in the Referendum Draft are unclear. Up to 20 percent of the ministers may be from outside Parliament, and then they sit as ex-officio MPs.
But the Draft does not say whether they are excluded when calculating the number of members of Parliament. Another problem is that, if parliament creates special women’s constituencies, there is no indication of who votes: just women or all the voters in the area?
The same lack of clarity (which was also in the Bomas Draft) applies to the special seats for women in District Assemblies (article 209).
The ‘special interests’ that 5 percent of the MPs would represent are still mysterious.
They include ‘youth and workers’, but the latter word is vague, and who would the rest be?
This gives the parties a lot of room for patronage (though perhaps less than the Kilifi Draft that said ‘special party interests’!). It could bring in ‘un-electables’.
Under the current Constitution there can be no MPs who are not members of a party.
Everyone has agreed that this is wrong. Bomas required a person who wanted to stand as an independent candidate to have the supporting signatures of 500 voters. The Referendum Draft has raised that to 1000.
This is one of several changes, introduced by politicians, which work to the advantage of parties.
In conclusion, on the positive side, the proposed system is ingenious.
It is better for persons with disabilities than the Bomas Draft, and lacks some Bomas provisions that were unclear and inconsistent.
The writer is a Law Professor at the University of Hong Kong
-----------------------------------------------------------------
Prof yash pal ghai
The primary function of an electoral system is the election of the representatives of the people in the legislature or the executive. But the electoral system can have an impact on politics and society in a number of other ways.
It can affect the stability of government, particularly in a parliamentary system, in influencing the development of a two-party or multi-party political system.
More fundamentally, by recognising the sovereignty of the people, elections serve to legitimise state and institutions.
Free and open elections and campaigns are critical for these objectives.
Because an electoral system serves so many purposes, it cannot be judged by a single criterion, and few systems achieve all these objectives in equal measure.
We were told by Kenyans that they wanted a system which enables the participation of all communities and groups in the legislature and the executive; and elections that were fairly conducted.
The current system (of single member constituencies, where the winner is the candidate who gets most votes) can produce very unrepresentative results.
In a parliamentary system this can result in a Government preferred by a minority of voters, or the dominance of the legislature by a party that enjoys less than majority support among the people.
Parliament is currently unrepresentative in other ways – there are few women, few persons with disabilities and few members of small minorities.
There are 12 nominated members, to represent mysterious ‘special interests’, who appointed by political parties, are used for patronage purposes.
All three Drafts have tackled this problem as well as that of inclusiveness.
In order to make representative more proportional and inclusive, the CKRC Draft proposed the New Zealand system: with representation from single member constituencies, supplemented by additional MPs – about one-third of the House – who would come from party lists and be chosen to bring the overall make-up of Parliament closer to the voters’ preferences.
So if 30 percent of voters supported Party A, that party would get about 30 percent of the seats and so on.
Bomas chose a more complicated system.
In addition to regular constituencies, each district would be a special constituency with a woman MP and there would be 14 members representing ‘marginalized communities and groups’.
These included groups that suffer discrimination, like persons with disability (PWDs), but also covered smaller ethnic groups, pastoralists or isolated groups.
The aim was to achieve a principle that 5 percent of the National Assembly should represent PWDs, youth and marginalized groups. It did not, however, deal with the problem of ‘unproportional’ representation.
The Referendum Draft, refining the Kilifi Draft, adopts another new system drawing on the earlier ones. The primary method of elections will continue to be single member constituencies. The list system would be used to promote the inclusion of women, youth and workers (as examples of ‘special interests’) and PWD (there is reference to marginalised communities or groups).
Extra representation for women can be ensured in one of two ways, or a combination of the two: the creation by Parliament of special constituencies for women or nomination from party lists. Five percent of the total MPs must be persons with disabilities (of whom at least one-third must be women) and another 5 percent must represent ‘special interests’— both groups drawn from party lists.
Party lists must be submitted before the elections. Each party’s entitlement to the additional seats is proportionate to its share of the national vote — which therefore also introduces an element of overall proportionality of representation.
Each election will produce a different number of women elected for ordinary constituencies.
So in each election the total number, including the extra MPs, will be different.
Suppose there is a general election with the following results, in an election with no special seats for women, but just 220 constituencies: Party A gets 55 percent of the votes but 60 percent of the seats — 132 seats, Party B gets 30 percent of the votes and 25 percent of the — 55 seats, Party C gets 10 percent of the vote but 15 percent of the seats — 33 seats and Party D gets 5 percent of the votes but no seats. Let us assume that there are 10 women MPs.
In order to get one-third women we shall need around 129 more (I reached this figure unscientifically by trial and error).
These extra MPs would be distributed between the 4 parties in proportion to their overall votes, taking account of the need to have PWDs, special interest people and women.
One third of the PWD must be women – no more, no less! Some of the ‘special interest’ members might also be women. The result would be 349 MPs distributed as follows:
Party A: 201 or 58.3% of the total
Party B: 93 or 28.4%
Party C: 45 or 13%
Party D: 6 or 1.7%
There would be 17 PWDs, 17 ‘special interest’ members and 95 additional women.
The result is not as ‘proportional’ as the system recommended in the CKRC Draft would have done, because that Draft required the extra MPs to be allocated so as to achieve a Parliament as closely as possible reflecting the parties’ share of votes.
The alternative system, special constituencies for women, would require fewer extra women MPs. How these constituencies would be organised is uncertain (whether based on districts or other criteria, and in the former case, uncertainty would result from any increase or reduction in number of districts).
Some things in the Referendum Draft are unclear. Up to 20 percent of the ministers may be from outside Parliament, and then they sit as ex-officio MPs.
But the Draft does not say whether they are excluded when calculating the number of members of Parliament. Another problem is that, if parliament creates special women’s constituencies, there is no indication of who votes: just women or all the voters in the area?
The same lack of clarity (which was also in the Bomas Draft) applies to the special seats for women in District Assemblies (article 209).
The ‘special interests’ that 5 percent of the MPs would represent are still mysterious.
They include ‘youth and workers’, but the latter word is vague, and who would the rest be?
This gives the parties a lot of room for patronage (though perhaps less than the Kilifi Draft that said ‘special party interests’!). It could bring in ‘un-electables’.
Under the current Constitution there can be no MPs who are not members of a party.
Everyone has agreed that this is wrong. Bomas required a person who wanted to stand as an independent candidate to have the supporting signatures of 500 voters. The Referendum Draft has raised that to 1000.
This is one of several changes, introduced by politicians, which work to the advantage of parties.
In conclusion, on the positive side, the proposed system is ingenious.
It is better for persons with disabilities than the Bomas Draft, and lacks some Bomas provisions that were unclear and inconsistent.
The writer is a Law Professor at the University of Hong Kong