Emerging Legislatures
A puzzling gap in the literature on democratization in Africa is the paucity of work on the emergence of the legislature. Yet, the rise of the legislature in several African countries is proving to be important for the consolidation of democracy in those states. This chapter seeks to fill this gap by asking the question: when and why has the legislature evolved into a significant political institution in some emerging African democracies, but not in others?1
Why Legislatures are Essential for Democracy
Two decades since the resumption of multi-party politics in Africa, Terry Karl’s observation that ‘elections alone do not a democracy make’ is truer today than ever before (Karl 1986). All but two African countries have now held multi-party elections – some for the fifth time – and a number of these countries are fledgling or consolidated democracies, yet most are not. Indeed, a review of the 2011 Freedom House ratings for political rights and civil liberties suggests that only six African countries could be classified as ‘democracies’ (Freedom House 2012).
What distinguishes the countries that score highest on indices of democracy, such as the Freedom House rankings, from those falling in the middle or below is not whether they hold multi-party elections at regular intervals, or even whether they have experienced an alternation in government, but whether they have developed, or are in the process of developing, strong and independent political institutions. This is especially true with respect to the development of institutions of countervailing power – those institutions that contain and limit the power of the executive branch, particularly executives associated with neopatrimonial or ‘big man’ rule (see Erdmann, this volume). Institutions of countervailing power are important because they have the potential to neutralize and perhaps end what is arguably the primary source of ‘bad governance’ across Africa: authoritarian rulers who perpetuate their own power via a web of patron-client relationships that are financed by the looting and hollowing out of the state. Institutions of countervailing power curtail neopatrimonial influence because they substitute institutions for personal rule. Not surprisingly, their development is fiercely resisted by neopatrimonial leaders striving to retain power.
One such institution is the legislature, provided it develops the capacity to perform all four of its core functions. Other institutions of countervailing power include the judiciary, special offices or commissions (such as an independent electoral commission or independent public service commission), ombudsman’s offices, civil society, and the press. Though different in the functions they perform, all of these organizations extract a measure of vertical and/or horizontal accountability from the executive branch when performing well. Most importantly, they force the executive to be accountable during the periods between elections. Conversely, without such institutions, the executive invariably becomes unaccountable and exercises its authority to achieve its own preferences.
The Four Core Functions of the Modern Legislature
Legislatures in democracies perform four core and unique functions that distinguish the legislature from other political institutions and highlight why they are an essential institutional component of all democracies. First, legislatures are the institutional mechanism through which societies realize representative governance on a day-to-day basis. Regardless of the type of electoral system through which members of the legislature gain their seats, the main function of individual legislators and the body to which they belong is to represent the varied and conflicting interests extant in society as a whole. The legislature is the institutional arena in which competing interests articulate and seek to advance their respective objectives in the policy-making process. While the president in a democratic presidential system is also expected to ‘represent the people’, she or he is not expected to articulate the diverse and competing interests of particularistic constituencies on a continuous basis. Rather, presidents are expected to synthesize, balance, and aggregate interests, and, as the head of the executive branch, to implement public policy.
Second, legislatures obviously legislate and they must do this at two levels. At a minimum they pass laws, but such activity may merely rubber stamp legislation handed down by the executive. More significantly, legislatures contribute to the making of public policy by crafting legislation in partnership with or independent of the executive, and then pass such legislation into law. It is important to remember that legislating in this broader sense is a process of collective action involving all members of the legislature (although those in leadership positions often play more prominent roles than others). It is thus a process that often requires intense bargaining and compromise between rival claimants for government action (or inaction).
Third, legislatures exercise oversight of the executive branch, to ensure that policies agreed upon and passed into law are in fact implemented by the executive. Oversight is an essential function for any democratic legislature because it ensures both vertical accountability of rulers to the ruled and horizontal accountability of all other agencies of government to the one branch whose primary function is representation. For the same reason, effective oversight requires a measure of transparency about the substance of governmental operations.
Fourth, legislatures – or more accurately, legislators acting individually rather than as members of a corporate organization engaged in collective decision making – perform the function of constituency service. In countries where members of the legislature (MPs) are elected from single or multi-member districts, and especially in Africa where most societies remain agrarian despite continuous migration to urban areas, constituency service takes one of two forms. First, MPs regularly visit their districts to meet constituents and assist some with their individual needs. Second is MP involvement in small- to medium-scale development projects that provide various forms of public goods – roads, water supply systems, schools, health clinics, meeting halls, and so on – to the residents of their district. In countries where MPs are elected by proportional representation (PR), constituency service is less important because members do not represent citizens on the basis of a shared place of residence.2
Although the performance of all four of these functions defines the legislature and distinguishes it from other institutions, it is important to appreciate that another defining and inherent feature of legislatures is that these functions exist in tension with each other.3 There is tension between providing representation and legislating, because representation requires members to advocate the particular concerns of their respective constituencies or political parties, while legislating requires bargaining and compromise across these and other interests. Similarly, there is a tension between legislating and providing constituency services, because in the first MPs seek to arrive at decisions that serve the entire nation, while constituency service is, by definition, addressed to a sub-community of society. Oversight may or may not exist in tension with representing, legislating, and providing constituency services, depending whose interests are at stake.
The tensions between the four core functions become even more apparent with respect to how individual legislators – and by extension the legislature as a whole – choose to allocate their time across these responsibilities. MPs elected from single- and multi-member districts, especially in agrarian societies where political interests are often defined in local geographic terms, are under constant pressure from their constituents to service their districts. Parliamentary elections are largely referendums on incumbents’ performance to meet this expectation. This in turn often leads MPs to spend far more time on this function than on legislating or oversight, the two functions that legislators perform on a collective basis. However, when members do not perform these functions and focus overwhelmingly on constituency service, the legislature exists in name only – as a conglomerate of elected officials from separate constituencies who rarely act as a whole.
Changing the Incentives
Given these realities, a fundamental challenge to the development of stronger legislatures in Africa is restructuring the incentives facing MPs so that they will devote more time and effort to the functions of legislating in the broad sense and to oversight, while ensuring that MPs’ reputations for constituency service are not compromised. This means changing the way African legislatures do business, which in many states will involve reshaping practices that became entrenched during lengthy periods of one-party rule.
Prior to the reintroduction of multi-party politics in the early 1990s, the legislature had either ceased to exist (as was often the case in countries under military rule), or existed simply to rubber stamp the decisions of the executive, where civilian rule continued. As such, African legislatures legislated only in the narrowest sense; they passed proposals handed down by the executive into law, but they did not participate meaningfully in the crafting of these proposals. Nor did they engage in oversight of the executive branch. To the extent that they were elected to represent diverse constituencies, as was the case in countries such as Kenya and Tanzania where a system of semi-competitive elections was maintained within the one-party format, members fulfilled the function of representation, albeit weakly (see Cheeseman, this volume).4 The result was an asymmetrical allocation of effort to constituency services, the only function of the modern legislature that the regimes of the military and one-party era permitted MPs to perform.
MPs were both excluded from the decision-making process and encouraged by the executive – that is to say, the typical neopatrimonial president of the period – to engage in constituency service through a combination of very low salaries and the disbursement of patronage to MPs who toed the line. The scenario was nearly identical across the continent. More than one-third of all MPs were appointed to an ever-expanding number of positions as ministers or assistant ministers in what became bloated executives of between two and three dozen departments of cabinet rank. Others were appointed to the boards of state-owned enterprises. Becoming an MP was thus viewed as a way to secure patronage jobs, especially ministerial positions, rather than as a way to engage in policymaking for the nation. Those so appointed were well compensated. Equally importantly, MPs serving under intensely neopatrimonial regimes gained access to an array of state resources that could be steered to their constituencies back home. However, because their appointment and thus their ability to serve their constituencies was contingent on their loyalty to the regime and its leader, they rarely challenged the system to shift more responsibility to the legislature of which they were nominally members.
By contrast, those who remained on the backbenches were barely able to meet their basic financial obligations, including regular travel to and from their constituencies. As a result, they were often dependent on cash handouts by the regime to maintain their local political base and have any hope of winning re-election.5 Unsurprisingly, backbenchers also aspired to executive appointments. Either way, there was no reward for expanding backbench involvement in either oversight or legislating in the broad sense.
The reintroduction of multi-party politics at the beginning of the 1990s changed the rules of the game in two respects. First, the legalization and legitimization of the opposition meant that there now existed a cadre of MPs whose power would increase from an expansion of the role of the legislature. Since members of the opposition do not shape public policy from within the executive branch, their only opportunity to effect change was to enhance the capacity of the legislature to legislate, and thereby to engage in effective oversight of the executive branch. Second, backbenchers of the ruling party were now motivated to support change for the same reason that members of the opposition did: they were poorly compensated and had little or no power vis-à-vis the executive. By entering into informal coalitions with the opposition they could expand both their terms of service and their power.
Building legislative capacity, however, was contingent on changes to the formal rules that structure legislative-executive relations and the provision of adequate resources to both the legislature as an institution and to its individual members. Indeed, without additional funds and expertise, MPs would be unable to take advantage of any changes in the rules. Not surprisingly, such changes were resisted by incumbent presidents and ministers.
The result in some countries – most notably in Kenya, but also in Uganda and to a much lesser extent in Ghana, Nigeria, and South Africa – has been the emergence of coalitions for change within the legislature. These are informal groupings of MPs who seek to alter the formal balance of power between the executive and the legislature, and to increase the flow of resources to the institution and its members in order to improve the performance of the legislature in all four of its core functions. Both changes are critical if MPs are to devote more time to the collective responsibilities of crafting legislation and providing oversight.
Changing the Rules
Changing the formal rules that specify the nature of executive-legislative relations requires either a constitutional amendment, the passage of specific legislation, or some combination of the two. These include but are not limited to:
The cumulative effect of these 11 sets of formal procedures is to tip the balance of power toward, or away from, the legislature vis-à-vis the executive branch. Of these, the seventh and ninth are arguably the most important and controversial in terms of blocking the emergence of an omnipotent executive. Where the legislature has a free hand in setting its own budget, it is in a position to raise salaries for both its members and staff, as well as to make other expenditures required to support the institution. Where the legislature can amend the national budget, it becomes a full partner in the governing process.
Increasing Resources
In order to perform the four core functions effectively, African legislatures require substantially more resources – financial, human, and physical – than they received during the era of neopatrimonial rule. To keep their monopoly on power, executives historically starved their countries’ legislatures of cash. In addition to revising the formal rules governing the scope of legislative action, legislatures must therefore also secure adequate funding. This has become a highly controversial area of reform, because at the very time that some African legislatures are becoming meaningful actors in the policymaking process and a counterweight to the executive branch, there have been examples of overreaching for the purpose of personal enrichment by members in several countries.
MPs in some countries – most notably Kenya, Nigeria, Uganda, and South Africa – have raised their salaries and other perks, including health insurance, pensions, and allowances for travel to and from their constituencies. In Nigeria, the total package of ‘official’ emoluments has risen to US$224,000 per annum, while in Kenya, members’ salaries and benefits now exceed $165,000.6 Given that these pay packages match or exceed those for parliamentarians in most developed countries, it is not surprising that they have evoked severe criticism in the Nigerian and Kenyan press. Opinion polls in Kenya indicate that the public perception of the National Assembly is low. Indeed, 72 per cent of the members of the Ninth Parliament were not re-elected to the 10th in December 2007, a significantly higher proportion than in prior elections, when roughly half were defeated. The percentage of incumbents of the House of Representatives in Nigeria who were defeated in elections held in April 2011 was the same. Whether these high levels of incumbent defeat are evidence of a public backlash against the level of compensation for MPs is unclear, but in these countries (which, it should be noted, are outliers in Africa) the issue is no longer one of insufficient salaries, but salaries that are deemed excessive.
That said, higher salaries appear to have facilitated greater productivity on the part of MPs with respect to legislating and providing oversight. Since 1999, the Kenya National Assembly has implemented a broad series of constitutional and internal reforms, including the strengthening of its committee system, the revision of the Standing Orders (the internal rules of the legislature), and the establishment of a parliamentary budget office.7 In the process, the Ninth Parliament arguably became one of the most effective legislatures on the continent. The 10th Kenyan Parliament has continued the trend, passing enabling legislation that produced a new constitution which substantially increased the powers of the legislature vis-à-vis the executive branch. Similarly, in Nigeria the development and competence of the committee system and the level of legislative oversight of the executive increased markedly during the Third Assembly, which served from 2007 to 2011 (Lewis 2009).
In addition to monetary resources, African legislatures face a shortage of human resources. Significantly, the two go hand in hand. The number of professional staff (those with administrative, parliamentary, and/or policy experience) is small – often not more than one to two dozen individuals – compared to the large number of secretaries, messengers, drivers, sweepers, and other support staff, who often number in the hundreds. In this, the staff at most African legislatures resembles African bureaucracies prior to civil service reform: bloated and often staffed by individuals who obtained their posts through patronage rather than merit.
Restructuring and professionalizing the staff of the legislature, however, requires not only the will to reform, but also sufficient funds to be devoted to the task. First, the members of the legislature must decide that such restructuring is essential if they and their institution are fully to perform the four functions of the legislature. Second, they must take control of existing staff by creating a separate parliamentary service, for example, thereby separating legislative staff from the government’s civil service. Knowledgeable professionals must be recruited, especially as support staff for the evolving system of portfolio (i.e. ministerial) and oversight committees – the heart of the modern legislature. Competent managerial staff must be recruited at the level of the chief clerk and senior deputy clerks to guide this expansion. Finally, to the extent that resources permit, competent staff must be assigned to individual MPs both at the legislature itself and back in their constituencies, where members are beginning to establish local offices.
In addition to the dearth of adequate legislative staff, most African legislatures are woefully short of physical infrastructure. In Ghana, for example, the National Assembly does not have enough rooms for the legislative committees to meet regularly. Most African legislatures cannot provide offices for their members other than for the few who occupy leadership positions. Constituency offices are almost non-existent, yet are important if MPs are to maintain sustained direct or indirect contact with those they represent. All this requires a rapid expansion of the legislature’s budget, an expansion invariably resisted by the executive for the obvious reason that the building of such capacity comes at the expense of presidential power. Only South Africa, and to a lesser extent Kenya and Nigeria, provide adequate staff and physical infrastructure for their MPs. In the case of South Africa, this is largely a reflection of the country’s relative wealth and government resources, and a continuation of the level of support provided for MPs during the apartheid era. It is also a reflection of the commitment of the leadership of the ruling African National Congress (ANC) to competitive politics. Notwithstanding former president Thabo Mbeki’s reputation as a ‘centralizer’, his government lavishly funded the South African National Assembly and regularly sang its praises as ‘one of the cornerstones of our democracy’. This policy has continued under his successor, Jacob Zuma.
In Kenya and Nigeria, where the provision of individual offices to all MPs and the professionalization of staff is a more recent development, the explanation is quite different. In these cases, the increase in resources to support the legislature is the direct result of MPs taking control of the parliamentary budget to provide for their needs. The Kenya National Assembly has also benefited from more than a decade of technical assistance from the US Agency for International Development (USAID) and the UK Department for International Development (DfID), which has been marked by a strong working relationship between these aid agencies and the leadership of the Assembly. All three cases illustrate that without adequate resources the building of modern legislatures in Africa will be difficult. Yet as the case of South Africa demonstrates, financing alone does not guarantee a strong legislature.
Constituency Service and Campaign Finance
The transformation of the legislature also requires that some attention be given to the overlapping issues of constituency service and campaign finance. As noted above, African MPs are under intense pressure to service their constituencies and their re-election often depends on it. They are therefore on a never-ending quest for funds to support trips to their home areas and to provide assistance to their local communities in the form of public goods. This not only consumes much time, at the expense of time that might be spent on legislating and oversight, but it also makes MPs vulnerable to blandishments of patronage from the executive, which in turn limits the degrees of freedom MPs have to perform their other legislative roles. It is therefore not surprising that legislators in some countries have begun to devise new mechanisms for both financing constituency service and for reducing their dependence on patrons and other supporters who have provided them with cash to fulfil their constituency obligations in the past. The increase in allowances for travel back to the constituency and funds for the establishment of constituency offices are best understood in this context.
The most significant of these efforts is the establishment of constituency development funds or CDFs. CDFs are an annual programme of unconditional transfers of funds from the central government to all parliamentary constituencies based on allocation formulas – usually population adjusted for poverty – specified by law. The funds are then given to local development projects and programmes prioritized by each constituency’s MP and/or a constituency development committee established for this purpose. CDFs were first established in Kenya in 2003, where they have proved immensely popular amongst both MPs and the public. Under current legislation, the government of Kenya is required to allocate 2.5 per cent of its annual budget to CDFs. During the 2010–11 fiscal year, this disbursement averaged $1,077,000 per constituency – enough to repair or construct a substantial number of classrooms, health clinics, water systems, and other infrastructure desired by rural communities. Not surprisingly, Kenyan MPs want more. MPs in Nigeria, Tanzania, Uganda, and Zambia have since established their own CDFs. A variation of this funding mechanism has also been established in Ghana, where 5 per cent of that country’s Regional Development Fund is set aside for reallocation to each parliamentary constituency within its respective region. Most legislators regard this as terribly inadequate. Other African countries, including Malawi, are considering the establishment of CDFs.
Notwithstanding the popularity of CDFs, the emergence of these funds has not resulted in an automatic advantage for incumbent MPs seeking re-election to the legislature. The impact has proven quite the contrary. Where they have been closely involved in the allocation of the funds, MPs have often found themselves mired in controversy, or the object of allegations that they have engaged in corrupt practices or otherwise steered the funds into activities that benefit them politically. Where, on the other hand, the procedures for allocating the funds have been revised to prevent such abuses, as in Kenya, MPs find that they have little influence over the allocation of the funds and thus gain minimal or no political advantage from their creation. Indeed, in both Kenya and Nigeria, the establishment of CDFs has occurred at the same time as the rate of MP re-election has plummeted to just over 20 per cent.
The Emergence of ‘Coalitions for Change’
The size, composition, and influence of the coalitions for change that have formed in many African legislatures varies greatly from one country to the next, but the following characteristics stand out. First, in terms of ‘committed activists’, the number of MPs involved in these coalitions remains small – no more than 30 to 50 MPs in the legislatures considered for this chapter, sometimes as few as a dozen. Given that the size of these legislatures ranges from a low of 222 in Kenya, to 400 in South Africa, this means that no more than a fifth to a quarter of all members, and usually far fewer, join such coalitions.8 Despite their small numbers, their impact can be profound. Second, as previously noted, the demand for change is articulated most forcefully by members of the opposition in alliance with a portion of backbenchers of the ruling party. Third, and perhaps most important, these coalitions include both reformers and opportunists. That is to say, they are led by MPs who seek certain changes and reforms to enhance the institutional capacity and power of the legislature so that it can perform its core functions and advance the process of democratization generally, but are also joined by other members whose main motivation is to improve their own personal situation.
The issue of MPs’ salaries nicely illustrates this distinction. Reformers want higher salaries for MPs and staff because they recognize that it is an important first step in professionalizing the legislature. Higher salaries make MPs less susceptible to the blandishments of patronage by the executive, while enabling legislators to perform their entire portfolio of duties. Higher salaries also attract better-qualified candidates who desire to strengthen the institution. By contrast, opportunists are interested in higher salaries for their own sake and because greater resources will help them to deal more effectively with the expectations of their constituents. They are not particularly interested in strengthening the legislature as an institution, but they do not oppose this goal either. Thus, they join reformers for their own ends, but often provide the crucial number of votes required to make the changes reformers seek. Whereas reformers are never more than an activist minority within the legislature, opportunists often include most members of the opposition and a significant number of ruling party backbenchers. Reformers rarely achieve their objectives without the presence and support of opportunists.
Which conditions or variables determine the size and power of these ‘coalitions for change’ and what conditions determine the size of its core component of reformers? The answer is hard to specify quantitatively from the available evidence. However, six variables are clearly important.
1. The Changing Membership of the Legislature
African legislatures have historically been composed of individuals whose levels of income, occupation, and especially education, are substantially higher than those of the rest of the population. This is not surprising given that MPs are members of society’s elite. Moreover, these demographic characteristics do not seem to distinguish ‘reformers’ from ‘opportunists’, nor reformers from opponents of reform. Instead, what distinguishes this group of MPs from their peers is their attitude and values – a combination of their genuine commitment to the goal of democratization, their familiarity with and sensitivity to global norms of political and economic governance, and their general ‘savvy’. Put differently, these MPs are outward looking rather than inward looking, in that they analyse their society and its political institutions from a comparative and global perspective. One indication of this orientation is that nearly all reformers are also computer literate and use the internet, skills almost non-existent among MPs of the previous political generation that sustained neopatrimonial rule. Many are also private sector entrepreneurs. They place a greater emphasis on performance than on loyalty cemented by patronage. They therefore constitute a new political generation of African legislators – not necessarily younger in terms of chronological age, although many are young, but different in terms of their outlook and approach.9
2. Voter Expectations for Constituency Service
Notwithstanding these characteristics, reformers must overcome the challenge that their reelection depends on their records of constituency service rather than their ability to legislate or oversee the executive branch, and the fact that half or more are likely to be defeated when seeking re-election. Reformers are consequently a group marked by high turnover, the number of which in most countries becomes smaller over successive elections. Reformers face a basic dilemma: the more time they devote to building the capacity of the legislature, and to legislating and oversight, the less time they are able to devote to constituency service, and thus the less likely their prospects for re-election.
3. Urbanization and the Size of Civil Society
The number of reformers also reflects the relative strength and size of civil society. The more urbanized and economically developed a country, the greater the size of its civil society and the more likely it is that the legislature will be populated by reformers seeking to expand the powers of the institution to which they belong. This largely explains why a powerful and sustained coalition for change emerged in the Kenya National Assembly, while such a coalition has not emerged in the legislatures of Benin, Ghana, Senegal, and Uganda. It may also explain why civil society organizations, professional associations, and businesses in Kenya and South Africa have developed the practice of lobbying the legislature, approaching relevant committees to a greater extent than what the author has observed in other African countries.
4. Parity Between Government and Opposition
The emergence of a coalition for change is more likely where the number of seats controlled by the ruling and opposition parties approach parity. The reason should be obvious: when the ruling party and opposition hold a nearly equal number of seats, a majority coalition for strengthening the legislature can be formed by the opposition in alliance with a small-to-modest number of backbenchers from the ruling party. This is especially true where party identity and party discipline are weak. Thus, in Kenya during the Eighth Parliament (1997–2002) and in Ghana during the Third Parliament (2001–04) reformers were able to organize themselves effectively and commence the process of reform, whereas this was not possible before parity. Conversely, where the ruling party commands an overwhelming majority, as in South Africa and Senegal, the prospects for expanding the powers of the legislature are limited. Moreover, in countries where the leadership of the ruling party enforces party discipline to retain executive power – as in Uganda – the emergence of a viable opposition may complicate, and in some instances reverse, the expansion of legislative authority (Kasfir and Twebaze 2009).
5. Role and Persona of the Presiding Officer and the Chief Administrative Officer
During the period of one-party rule, the role of the presiding officer (the speaker) and the chief administrative officer (the clerk) conformed to the patronage-based systems of that era. Presidents handpicked loyalists for these positions. Their mandate was to keep the legislature compliant and contain any mavericks seeking to enhance its powers, de facto or de jure. Rather than being genuinely elected by their colleagues, these speakers were imposed. Rather than seeking to expand the array of services provided to MPs, clerks and their staffs were kept on a short leash by the executive and provided with few resources. After the return to multi-party politics in the early 1990s, the executive expected that the speaker and clerk would continue to run the legislature as before. This created a measure of friction in some legislatures, including the National Assemblies in Kenya and Tanzania, where reformers sought to expand the capacity of the legislature but were repeatedly frustrated by the presiding officer. In Tanzania, the speaker retained his position for three terms before eventually retiring after the 2005 elections. In Kenya, the incumbent speaker also retained his position for three terms, but was defeated in his bid for a fourth term when the newly elected House convened after the 2007 elections. In both cases, the speaker sought to transform his role – and thus retain his job – from the watchdog for the executive tasked with blocking change, to the spokesperson for reform, albeit on the government’s timetable. In the South African National Assembly, the role of the first speaker in the post-apartheid era was different, yet similar insofar as she was expected to serve the leadership of the ruling party and the executive first, and the MPs second.10 Following the 1994 election, which brought the first African-led government to power, the speaker was faced with the challenge of organizing and presiding over a new legislature with 400 members, of which less than 20 per cent had ever served before. In this role, she was highly supportive of members, particularly younger and less-educated members, of the ruling ANC. She also had the delicate task of assuming authority over a highly competent yet holdover staff from the apartheid era, a transition she managed well. Yet she was also expected to ensure that members of the ANC toed the party line as laid down by its leadership, with the result that many – including several committee chairs, all of whom were members of the ANC – chafed under her control. A variation of this scenario occurred in Ghana where an independent speaker who sought to strengthen the legislature in the Third Parliament (2000–04) was subsequently pushed aside by then-President John Kufuor when he sought to retain the speakership in the Fourth Parliament (Lindberg and Zhou 2009).
6. The Type of Electoral System Used to Elect MPs
Unlike the rules specifying the relationship between the executive and the legislature, the rules specifying how votes are translated into seats determines support for a ‘coalition for change’, especially amongst backbenchers of the ruling party. Where proportional representation based on lists of candidates nominated by the party is employed, as in South Africa, Mozambique, and Namibia, the likelihood of backbenchers joining a reform movement to challenge the executive is much less than where MPs are elected from single- or small multi-member districts. Party discipline within the legislature is generally much stronger in legislatures elected via PR than from single-member districts, as the leadership can threaten MPs who challenge the executive with removal or demotion on the party list for the next election. Moreover in South Africa, where the ruling ANC periodically ‘re-deploys’ (i.e. reassigns) its members to different positions in government, renegade members have been removed from the National Assembly in the middle of their terms.11 The impact of PR also suggests that contrary to conventional wisdom, cohesive and highly disciplined political parties are not necessarily ‘good’ for the development of the legislature and whether it performs its core functions effectively.12
Measuring Legislative Performance
Measuring the performance and impact of legislatures is a challenging task and space does not permit more than a cursory discussion here. It is nonetheless essential to develop at least some rudimentary measures of legislative performance lest there be no way to measure their development over time or to compare and explain why some have developed while others have not.
To date, five methods have been used to measure legislative power or performance. The first is a relatively straightforward assessment of the formal powers of the legislature to measure its independence from the executive branch. This is the approach taken by Steven Fish and Michael Kroenig in their construction of the Parliamentary Powers Index (PPI) (Fish and Kroenig 2009). Fish and Kroenig identify 32 such measures and then, based on the responses to their survey by a panel of at least five experts per country, compute the percentage of items scored ‘yes’ for each country by the panels. The more items scored ‘yes’ by the panel, the stronger the legislature.
Although the PPI helps to explain some variations in Freedom House scores and demonstrates a clear relationship between the level of legislative power and the level of democracy, the index does not directly consider the extent to which legislatures perform any of the four core functions discussed above. Such a series of functional assessments, however, could be constructed via the same panel approach used by Fish and Kroenig. This would reveal more about actual legislative performance than the PPI because it would highlight the tensions and tradeoffs arising from the performance of the four functions. For example, one would expect that any given legislature might score high on the index for one or two functions – say, representation and legislating – but not for the others.
Yet another approach, and one also preferred by this author, would be an assessment of the quality of key components and actors in the legislative process. For example, a number of measures can and are being developed to assess the capacity and practice of the committee system. This area of inquiry was surprisingly ignored or avoided by Fish and Kroenig, yet most observers agree that a strong committee system is central to the development of a powerful and effective legislature – that is, how well it performs the core functions, especially legislating in the broad sense, and oversight. Other components of the legislative process, such as the involvement by the legislature in the formation of the budget, could also be assessed. Indeed, the Kenya National Assembly is one of the most powerful legislatures in Africa on these dimensions, but Fish and Kroenig (wrongly, in the opinion of this author) rank it among the least powerful for the PPI.
A fourth approach often employed by students of the US Congress is to measure the extent and manner to which the legislature legislates by assessing the frequency and content of bills passed. While this approach attempts directly to measure the productivity of the legislature, it becomes mired in a host of methodological questions, including, but not limited to, the question of how to ‘weight’ individual pieces of legislation. Not all bills passed into law are in fact individual pieces of legislation, but omnibus laws that need to be disaggregated in order to be properly measured. Not all disaggregated measures, however, are of equal significance. Many are simply amended versions of earlier legislation. How does one assess the relative significance or ultimate impact of these pieces of legislation? The approach is fraught with difficulties, yet is perhaps still worthwhile, given that the crafting and passage of legislation is a defining function of the legislature.
Fifth, and finally, there are variations of the reputational approach, assessments by either experts or citizens about how well they believe the legislature is performing its core functions. Such measures, however, are subjective assessments that may tell us more about those giving their opinions than the performance of the legislature itself.
Conclusion
Although legislative performance with respect to the four defining functions is uneven across the African continent, the legislature is emerging as a key player in some countries. It has begun to initiate and modify legislation to a degree never seen during the era of neopatrimonial rule, nor during the early years following the return of multi-party politics. It sometimes exerts meaningful oversight over the executive. In Kenya, Malawi, Nigeria, and Zambia (but not Uganda), it has blocked presidents from changing the constitution to repeal the limit on presidential terms. Where the legislature must ratify key appoints by the president, as in Kenya, it is also beginning to reject such nominations. Put simply, the institution is emerging as a check on the executive – a true institution of countervailing power – in some countries.
Because of its emerging power, the legislature is also becoming the object of lobbying by civil society and, increasingly, the business community in some countries. In short, African legislatures are beginning to ‘matter’. That said, there is no uniformity across Africa, and we are only beginning to understand and explain the variations. If the legislature is a defining institution of liberal democracy, then clearly more attention must be given to explaining its development and nurturing its growth.
Notes
1Portions of this chapter appeared in an earlier article (Barkan 2008).
2It is therefore noteworthy that in South Africa, a country that employs proportional representation, the ruling party found it necessary to establish a ‘shadow’ system of single-member districts to which it assigns its MPs for the purpose of maintaining contact with the grassroots.
3I am indebted to Shaheen Mozaffar for this insight.
4In these elections, two or more candidates of the ruling party competed for office much as they do for party primary elections or non-partisan elections in the United States. Such elections, which occurred between 1965 and 1990, never resulted in the alternation of government, but did result in a high turnover of MPs.
5In a typical parliamentary election in Africa, between 60 per cent and 75 per cent of incumbents fail to win re-election. Not surprisingly, the turnover rate for assistant ministers and ministers is much lower. Between 50 per cent and 65 per cent of assistant ministers win re-election while the percentage for ministers runs as high as 75 per cent.
6Unofficial payments are widely reported to raise the total package paid to Nigerian MPs to over $1 million annually.
7Formally known as The Office for Fiscal Analysis and Management.
8The National Assembly of Benin, which is included in our study, has only 87 members. Regrettably, no identifiable group of reformers nor a ‘coalition for change’ has emerged in that body, with the result that it has been excluded from these estimates of the proportion of MPs who press for reform. We also found no such coalition in Senegal. These data come from a larger study in which a group of researchers studied the legislatures of Benin, Ghana, Kenya, Senegal, Tanzania, Uganda, and South Africa.
9The perspective and motivations of this group are not hard to explain. Most view the world including politics and the economy through a new lens for the simple reason that they want to make money.
10She was also an ANC loyalist who aspired to a cabinet post.
11In 2000 the ANC chair of the Standing Committee on Public Accounts was removed from the chairship and ultimately forced to resign after his committee became too aggressive in investigating alleged corruption in the granting of procurement contracts by the Ministry of Defence.
12As noted by Nelson Kasfir, the conventional wisdom about the desirability of cohesive and strong parties is also tested in Uganda. Prior to the parliamentary elections of February 2006, when Uganda operated under the ‘Movement’ system and all MPs were members of the National Resistance Movement, the lines between government and opposition were highly fluid. During this period, a coalition for change emerged in the National Assembly which adopted several significant reforms, including a significant rise in MP compensation and the passage of legislation that provided for the scheduled involvement of the Assembly in the budgetary process. The committee system was also strengthened, especially the Public Accounts Committee, the principal mechanism by which the National Assembly scrutinizes executive performance. Although they were not enthusiastic about these developments, President Museveni and his government went along with this expansion of legislative power. However, following the adoption of ‘multi-partyism’ in 2005, several MPs who had been prominent in the coalition for change that lobbied for these reforms morphed into the opposition, thus drawing Museveni’s ire and his determination to bring the legislature to heel.
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