Whoever wins the presidential vote might be forced to indirectly share power in the event they fail to marshal the requisite numbers to control business in the National Assembly and Senate.
Constitutional, legal and political experts opine that should a President fail to get majority seats in his party or coalition then independents and the opposition can join hands and frustrate his agenda.
This would especially play out during crucial debates when the ruling party whips will have a hard time marshalling numbers.
And with the opposition being in control of Parliament, the president cannot transact any business smoothly without first negotiating with the parliamentary leadership (opposition side), which would be akin to a nusu mkate government (power sharing).
Constitutional lawyer Kamotho Waiganjo told Sunday Nation that should the President’s party fail to marshal numbers, constitutionally he will have to contend with Leader of Minority and Minority Chief Whip posts, which are less influential in the House as the opposition takes the Majority positions.
Article 108 of the Constitution provides that the majority leader shall be a member of the largest party or coalition of parties while the leader of the minority shall be from the second largest party or coalition of parties.
With such an occurrence, Mr Waiganjo said the President will have difficulties in pushing his agenda, and to achieve them, he will have to consult or negotiate with the opposition who may hold him at ransom.
The Leader of Majority under the current presidential system is the link between Executive, National Assembly and Senate, and is the leader of government business in the House.
Mr Waiganjo, a former commissioner at the defunct Constitutional Implementation Commission (CIC), said there is no legal requirement that the positions of the Majority Leader and Majority Chief Whip must come from the ruling party.
In the current parliament, Garissa Town lawmaker Aden Duale and Tharaka Nithi Senator Kithure Kindiki are the Leaders of Majority in National Assembly and Senate respectively.
They belong to Jubilee Party, which won majority in both houses in 2013.
“If the President’s party fails to get the majority members, the Majority Leader and the Chief Whip posts automatically go to the opposition, and this will mean that the President will have difficulties in pushing his agendas in the two Houses,” Mr Waiganjo explained.
Perhaps aware of such consequences, both President Uhuru Kenyatta and Nasa candidate Raila Odinga and their backers have been rallying their supporters in their respective strongholds to vote for their party candidates in what is commonly referred to “six-piece suit voting”.
“Independent members do not have a leader to whip them, have no existing structures and, therefore, if the President wants to woo them, he will have to talk to every one of them which is very difficult,” Mr Waiganjo said.
Prof Peter Kagwanja, a political analyst and former presidential adviser, said a president losing the Leader of Majority and Majority Chief Whip to the opposition would be a serious and dangerous thing to his administration, especially with the current Presidential system.
According to him, the president must sweep all the MP and senate seats in his strongholds to ensure he gets full control of the Legislature, failure to which he will be a lame duck.
“President Kenyatta for instance, must ensure he has majority of MPS in Jubilee.
“He cannot afford to lose them to the independent candidates because it shall weaken the presidency, which is a very serious and dangerous occurrence on him,” he said.
Some of the hurdles the President will face under an opposition-led House, Prof Kagwanja said, include having his proposed appointments such as Cabinet Secretaries, Budget, and Bills among others key things approved because he will have to reach out to the opposition.