A clause in the law on political party mergers, including that of President William Ruto’s United Democratic Alliance (UDA) and Amani National Congress (ANC) associated with Prime Cabinet Secretary Musalia Mudavadi, is likely to trigger mass defections of Governors, MPs and MCAs, Nation can reveal.
Section 11 of the Political Parties Act that spells out conditions for merger provides that elected leaders – who are against such a merger – are at liberty to defect to other political parties or become independent.
“Where a party merges under this section, a member of the political party that has merged with another political party shall be deemed to be a member of the new political party,” states subsection 7 of the Act.
“Despite subsection (7), a member who is a President, Deputy President, Governor or Deputy Governor, Member of Parliament or member of a County Assembly, and who does not desire to be a member of the new political party registered after the merger shall continue to serve in such elected office for the remainder of the term, and may join another political party or choose to be an independent member within thirty days of the registration of the new party,” the Act provides.
This provision presents a golden opportunity for former Deputy President Rigathi Gachagua’s camp to occasion major defections of UDA elected leaders, especially from the disgruntled Mt Kenya region.
Mr Gachagua recently announced plans to launch his new party, which could be a major beneficiary of this development.
Several elected leaders from the region have started aligning with Mr Gachagua in response to the perceived growing political hostility against Kenya Kwanza administration.
Some have, however, remained cautious, at least for now, to insulate themselves from possible disciplinary actions for going against UDA’s position.
Some of Mr Gachagua’s allies told Nation that they are working on having a new party as they wait for the registration certificate of the merged outfit before they can execute a mass walkout from the ruling party, UDA.
Such a mass defection is likely to have far-reaching political implications, including altering the majority and minority coalitions in both the National Assembly and the Senate.
It also has a potential of denying UDA millions of the Political Parties Fund, which is shared based on the number of elected leaders in a party.
In the latest disbarment of Sh1.2 billion, UDA pocketed Sh558.49, followed by ODM at Sh298.3 million.
Kenya Kwanza is currently the majority coalition largely by the numerical strength of UDA, which draws most of its members from Mt Kenya of Mr Gachagua and President Ruto’s Rift Valley bastion.
Kenya Kwanza boasts 179 members in the National Assembly against Azimio La Umoja One Kenya coalition’s 157.
The provision could also hurt Mr Mudavadi if some of his ANC members feel uncomfortable to join UDA.
She, however, did not respond directly to our questions but referred us to read Section 11 of the Act that talks about mergers.
“Kindly read the whole of Section 11 of the Political Parties Act,” said Ms Nderitu.
Former ANC Secretary General Omboko Milemba, who has since been named Deputy Secretary General of the new outfit, told Nation that they are aware of the political implication of the clause.
Mr Milemba said they have taken necessary precautions to stop their opponents from exploiting the clause to disenfranchise the ruling party.
“The article is as straight as you have read it, and I can tell you that we have taken precautions. It is the law, and we have taken care of the article. We are ready and have taken care of it,” said Mr Milemba, who declined divulge details on how they plan to stop possible haemorrhage from the party.
On January 17, UDA and ANC announced the merger of the two parties at an event held at State House.
“Appreciating and reflecting on the shared and common ideals on the primacy of economic empowerment, peace and development, the United Democratic Alliance Party (UDA) and the Amani National Congress (ANC) have today merged as one Party,” UDA chairperson Cecil Mbarire said in a statement.
According to the Act, a political party may merge with another political party by forming a new political party or merging into an already registered political party (in this case UDA).
The merger agreement is then signed and deposited with the Registrar within 21 days of the signing, causing the Registrar to withdraw and cancel the certificates of registration of the political parties that have merged and gazettes the dissolution of the merged parties within seven days.
After the merger, the particulars including the names, symbol, logo, slogan and colours of the parties are removed from the register of political parties and such names, symbols, logos, slogans and colours are not available for registration by any person as a political party in the subsequent election following the merger.
The records, assets and liabilities, rights and obligations of all the dissolved political parties will be the records, assets and liabilities, rights and obligations of the new political party including their entitlement to the Political Parties Fund.
Constitutional lawyer Bobby Mkangi said the law gives members dissatisfied with a major a window to defect and join other political outfits without any disciplinary consequences.
“Most definitely,” said Mr Mkangi when asked if the clause offers a window for defections by elected leaders dissatisfied with the merger.
“That right stems from the original principle that a member can join or leave a party so long as they meet their obligations. It is a solid ground since the merged outfit is an entirely new party. Members who are dissatisfied are at liberty to join another party without attracting any disciplinary action,” said Mr Mkangi.
Embakasi Central MP Benjamin Gathiru alias Mejja Donk, an ally of Mr Gachagua, told Nation Africa that they are still waiting for the certificate of registration of the new outfit before they can act accordingly.
“There will be no consequences because the party that took us to Parliament no longer exists after the merger. We will soon be looking at the legal provisions and act accordingly,” said Mr Gathiru.
“Those who feel uncomfortable in UDA will be free to form another party,” he added.
Jubilee Secretary General Jeremiah Kioni said that UDA and ANC may be forced to relook into the merger agreement as it has the potential of causing political instability.
“It is now open UDA members can form or join another party. This was naivety of the highest order by the leadership of the two parties to open such a floodgate that can greatly weaken UDA,” said Mr Kioni.
“They need to relock at the agreement because a mass defection from a ruling party two years before the elections could cause major political instability,” said Mr Kioni.
