The Kenyan opposition is struggling to define its role in a new constitutional order that removed the executive from parliament and banned those contesting the presidential election from becoming members of parliament.

Experts say that this weakness has been compounded by the failure of the members of the National Assembly to act collectively to provide oversight as per the requirements of the 2010 Constitution. Instead they are divided along party lines even when tackling important national issues.

The result is increased confrontation outside parliament between the Coalition for Reform and Democracy (Cord), led by Raila Odinga, positioning itself for the 2017 elections, and the administration of the Jubilee Alliance led by President Uhuru Kenyatta and Deputy President William Ruto.

Unlike earlier, when the opposition used to confront the Executive in parliament, Cabinet Secretaries are no longer members of parliament. The opposition has resorted to calling out its supporters for street demonstrations to pass the message to the Executive.

The government has responded in a high-handed way violently dispersing demonstrators and opening fire on some.

READ: Foreign envoys condemn violent protests, urge Kenyan talks in IEBC row

“What we are seeing is a raw struggle to retain power. The political players continue to apply old ways of doing politics without taking into account the structures of governance such as the legislature, the executive and the role of the opposition have changed,” said Gitobu Imanyara, a lawyer and a former member of parliament.

Mr Imanyara says that the transition to a new constitutional order has been hampered by the political practices of government versus the opposition as both sides have failed to embrace constitutionalism. 

Cord’s current push to reform the Independent Electoral and Boundaries Commission (IEBC) outside parliamentary and constitutional provisions is due to the fact that Jubilee has a majority in both the National Assembly and the Senate.

Cord is pushing for dialogue outside parliament to change the IEBC commissioners and reform the electoral laws before the 2017 elections, but the government insists that electoral reforms must be led by parliament.

Norman Magaya, Cord chief executive officer, says that attempts by the opposition to push an alternative policy agenda in parliament have been frustrated by the numerical might of Jubilee, whose MPs perceive opposition sponsored motions as purely Cord agenda and not on merit. 

But Kipchumba Murkomen, the Senator for Elgeyo-Marakwet County said that the Jubilee tyranny of numbers is normal in a democracy where parties seek to have more members in parliament to push their legislative agenda based on party programmes.

“What we are seeing are self-seeking opposition leaders who are not in parliament but who want to force political conversations outside the constitutional provisions. Instead of confrontation, we expected the opposition to articulate alternative ideology that improves the constitutional means of reforming institutions,” said Mr Murkomen.

Another significant development is that the previous strong partnership between the civil society and the opposition has been eroded by increased government crackdown on non-governmental organisation courtesy of anti-terrorism measures.

Ndung’u Wainaina, executive director of the International Centre for Policy and Conflict, says that after the government targeted the media though the Security Law Amendment Act, 2014, the civil society were the next target forcing many of them to change from addressing hard political questions into a policy of “constructive engagement” for the sake of survival.

The government introduced the Public Benefits Organisations Act, 2013 that capped foreign funding for NGOs at 15 per cent of an organisation's total budget. A number of NGOs have been deregistered for either failing to file their returns or on allegations of funding terrorism.

Dr Adams Oloo, the chairman of the Department of Political Science and Public Administration at the University of Nairobi, says that part of the problem is the presidential system where the executive has more powers but unlike the US Congress that has resources for research assistance, the Kenyan opposition lack resources to enable them come up with alternative legislation.

He says the ideal situation is where the opposition present policy issues that they want to see in the budget before the government starts the budget-making process. 

Dr Oloo, however, maintains that the current confrontation is a continuation of the mistrust of the electoral body that started with the re-introduction of the multi-party system in 1991.

“Before the country gets an electoral body that enjoys the confidence, the confrontations are going to increase as we approach the 2017 elections so long as the opposition believes that IEBC cannot be a neutral arbiter,” said Dr Oloo.

READ: Stalemate puts integrity of Kenya elections at stake

Since the 2013 elections, Cord has not sponsored any major legislation as an opposition but has used individual MPs to initiate private member’s motions that are often defeated on the strength of party loyalty.