By Dennis Ndiritu
Kenya has experienced a full-circle constitutional journey. From the series of conferences in Lancaster House in 1960 to 1963 when Kenya’s governance framework was negotiated, the promise of a stable progressive administrative charter that would foster equal enjoyment of the fruits of independence and open democratic space have long been elusive. Many of Kenya’s shortcomings have been attributed to the systematic erosion of the independence constitution orchestrated by a powerful State House cabal that ensured concentration of power in an imperial presidency. In 1976, the Gikuyu Meru Embu Association(GEMA) stalwarts sought to amend the constitution to prevent power from slipping away from the ‘House of Mumbi’ with the imminent demise of the ailing Mzee Jomo Kenyatta. They failed, courtesy of Sir Charles Njonjo.
When Daniel Moi rose to power, his dictatorial tendencies led to the introduction of Section 2A into the constitution, which repealed multi-party democracy in Kenya, later repealed in 1991. In the ensuing decades, there were various attempts to rewrite the constitution, including the Inter-Partes Parliamentary Group fair in 1997 that led to the Constitution of Kenya Review Act 1997, which in 2000 finally established the Constitution of Kenya Review Commission chaired by Yash Pal Ghai. There were also the Bomas and Wako Drafts in the early 2000s with the Wako draft leading to the national referendum in 2005, which voters rejected, resulting in establishment of the current political realignments.
Following the 2007-2008 post-election violence, the Constitution of Kenya Review Act 2008 and the Constitution of Kenya Amendment Act 2008 was passed to facilitate completion of review of the constitution of Kenya and preparation of a draft constitution that would be acceptable to the majority of Kenyans. The Committee of experts led by Nzamba Kitonga presented the final report to Parliament’s Constitutional Implementation Committee. Although the Chapter on the structure of the Executive proposed a raft of changes which proved contentious to the two grand coalition parties, a consensus was reached allowing a Presidential system of governance.
Parliament’s current annual budget.
Nine years since this promulgation, there’s now an attempt to amend Kenya’s constitution led by Dr Ekuru Aukot. Through his Thirdway Alliance, Aukot has initiated a constitutional referendum dubbed “Punguza Mizigo” which has the overriding objective to reduce the public wage burden and cost of governance currently being experienced.
Aukot’s approach departs from all other calls and attempts at constitutional reform, including the Parliamentary initiative; it is a pro-people initiative which seems cognizant of the fact that the constitution is the will of the majority and not a politically-connected few.
Although our constitution has been labeled as transformative with a good progressive and development conscious provisions and outstanding features, such as an expanded Bill of Rights, a delineated chapter on leadership and integrity and devolution of functions and resources, the nine year experience has illustrated that there is still need to reform parts of the document in light of changing geo-political and economic circumstances.
The Bill seeks to strengthen the Senate and the National Assembly to reduce the cost of running the legislature. It intends to achieve this through reducing over-representation by abolishing the 290 constituencies and adopting the 47 counties as single constituency units for the purposes of parliamentary election to the National Assembly and the Senate. It proposes election of a man and woman from each to the National Assembly, and nominating only six members of parliament from special interest groups, which will consider gender equality so that there is a man and woman for each.
Factually studied, this will attain gender balance in our parliament on a 50-50 basis, much higher than the 2/3 gender provision espoused in the Constitution. Kenya has experienced a history of gender imbalance and gender discrimination which led to the development of the ‘woman representative’ seats with the deliberate view that women would champion female agenda, including reproductive rights and anti-FGM policies and campaigns, among others.
Punguza Mizigo aims to reduce the number of elected representatives to 147, which would be a significant reduction both in terms of personnel and the money needed to maintain them. Curiously, the Bill fails to touch on the number and composition of wards, which have become a hotbed of wastage and theft. One wonders if it is coincidence or intentional, considering that for this Bill to be actualized, it needs the endorsement of county assemblies. A strategy not to antagonise perhaps?
If adopted, representation in Parliament will be cut by half. It will also ensure there is efficiency in House business by reducing the conflict between MPs, Senators and MCAs over management of wards, by demarcating representation, legislation and oversight roles. That said, suddenly and drastically reducing representation could destabilise different demographic intricacies that the current constitutional boundaries were tailored to address through distributed ethnic representation – the Ligale Commission on Boundary Review established that previously marginalized communities viewed constituency boundary delineation key to addressing marginalization. The political dimension of this reality is the devil in the amendment.
Further, the Bill seeks toreduce cost of running Parliament from current Sh36.8 billion to less than Sh5 billion. By any estimation, this is huge, and a more-than-welcome relief.
Senate as the upper House
The Bill envisions Senate to be the Upper House with veto powers over the National Assembly. The idea is to provide proper oversight and checks by giving Senate power to review decisions of the lower House, thus avoiding the legal battles that so often play out over legislation. The elevation of the Senate implies its jurisdiction will be expanded to dealing with matters beyond those touching on counties. In essence, the Bill provides for a hierarchical parliamentary structure with quality control checks and balances even among elected representatives.
Further, the Bill seeks toincrease the share of revenue allocation to the counties to at least 35 percent from the current15. Well utilised, this is expected to spur economic growth by empowering devolution more that it currently is. The National Government will be constitutionally obligated to disburse more funds to the counties, and not use development money as a tool to dangle development projects and blackmail opposition governors into toeing official government policy. This could facilitate real and meaningful inclusivity, as citizens will have easier, direct access to equitable share to resources and services.
Worth noting here is that the introduction of devolution was meant to divert attention from the Presidency, which has not been the case in the last two elections. That this increase in revenue to the devolved units will cure this is highly unlikely.
Wards as units of accelerated development
Punguza Mizigo Bill seeks to front wards as centres of accelerated development, by substituting the Constituency Development Fund for a Ward Fund. Whereas the argument has been made that this will place the development agenda right at the people’s doorsteps through the application of the bottoms-up approach to develop the country evenly, to attain real and meaningful inclusivity, the criteria for the allocation of substantial monies to the wards will be critical. Further, it will be vital to interrogate whether there will be a need for the formulation of Ward Development Funds for the disbursement of funds to counties, as well as the criteria of sharing revenue from counties to the wards to create growth. Given that members of county assemblies have three critical roles namely legislation, oversight and representation, just like MPs, the transfer of development funds from the ambit of MPs to MCAs might be seen as mere transfer of developmental powers to wards. Would it not be effective to strengthen the MCAs in their oversight and representation roles and leave development in the hands of county governments?
Demystifying the presidency
The Bill seeks to introduce a one 7-year term presidency. It is proposed that this term limit will end the “do or die” culture of re-election. It is largely uncontested that the Presidency has been an abject failure. The democratic experience has yielded very little by way of the good governance promised on the advent of multi-partyism and the promulgation of the Constitution. And while this may be blamed on our culture of voting in bad leaders, it should be noted that a people’s thinking is greatly influenced by their history and socio-economic environment.
With a stratified political system like Kenya’s, tied on our tribal identity, this 7-year term system will, in itself, not cure the problem. While the term limit may be limited to a one-off scenario, it is not accommodative of a stratified country where the problem has been the exclusion of specific parties and regions from holding power. It would be appropriate if this clause were amended to provide for a 7-year term presidency that is rotational through the regions consolidated from counties. The assertion that a one-term presidency will, of itself, end theft of public money is not necessarily true. On the contrary, like it has been evidenced by one-term MPs and Governors, the presidents may intentionally decide to loot public funds throughout the course of his/her term, which could lead to greater damage than we currently know. This is a clause that should be evaluated critically since its success will only depend on the implementation of good accountability mechanisms. So saying, a one-term presidency may yield precious little, on account of the criterion we are using.
The Bill seeks to reduce cost of running Parliament from the current Sh36.8 billion to less than Sh5 billion.
The Punguza Mizigo Bill seeks tostop wastage of public funds by capping the salaries of elected leaders to a maximumand consolidated pay of Sh500, 000 for the President and Sh300,000 for the Member of Parliament per month. Elected leaders will not be paid any other allowances. This provision arises from the fact that presently, elected officials use their positions to advance personal gains through irregular increase of salaries and allowances, contrary to delineations by the Salaries and Remuneration Commission. This clause seeks to advance the concept of servant leadership, a rather alien concept in our system of government.
Abolition of the Position of Deputy Governor
The Bill seeks to abolish the position of Deputy Governor. The Governor will be allowed to nominate from among the duly vetted and appointed County Executive Officers, a principal assistant for purposes of administration. In the unlikely event of the position of Governor falling vacant, the Governor is to be elected in a by-election.
This is a most welcome provision. As it is, deputy governors are in office without clearly laid out roles except those delegated by Governors for principal assistant. In Nairobi City County, Governor Mike Sonko has been running county affairs without requiring a deputy governor. As proposed, the appointment of a CEC as a Principal Assistant for administration purposes will eliminate political tension and competition between governors and their deputies which, over time, have proved perilous to delivery of services and the smooth running of county affairs. It will also eliminate political alignments and connivance between deputy governor and governors on the one hand, and between governors and MCAs on the other. However this clause should be amended to provide for the succession of the Governor by his appointed Principal Assistant. This will prevent wastage of funds on fresh election upon the demise of the incumbent, and foster the continuity of governance.
Restructuring of constitutional commissions
The Constitution establishes numerous commissions and offices to ensure accountability, responsiveness and openness in the practice of governance. These institutions are supposed to strengthen the regime of checks and balances between different branches and institutions of government. In the nine years that they have been in operation, only a few of these institutions have discharged their roles as envisaged. The Salaries and Remuneration Commission, the Commission on Revenue Allocation, the Judicial Service Commission, and the Independent Police Oversight Authority seem to be alive to their mandate although, even for them, more should be done. Most of the other independent commissions are either mired in fights for credibility or a lack enthusiasm to execute their mandate.While the legal framework guarantees these institutions independence and power to execute their functions, it seems vested interests have taken over most of these institutions, including the Ethics and Anti-Corruption Commission and the National Land Commission, thus slowing down sectoral reforms.
It is with this view that the Bill calls for a relook at these commissions with a view of making them lean and efficient. The Bill seeks to restructure the composition of Constitutional commissions to comprise not more than 5-part time members who will sit on a necessity basis and who shall be paid an allowance per sitting as will be set by the Salaries and Remuneration Commission. This is a welcome amendment as these Commissions have proven to be a placement ground for political cronies who gobble full time salaries at the taxpayers’ expense.
Leadership and integrity
The Bill seeks to amend Chapter 6 of the Constitution to automatically adopt recommendations of public inquiry and audit reports and bar all adversely mentioned individuals from holding any public or state office. This is expected to instil a culture of accountability for those serving in public service. Though lauded as a progressive thought, this provision should rope in all reports of commissions of inquiry and prevent the adulteration of these reports through court orders to expunge names of suspects from these reports. It should provide a mandatory time frame for the implementation of these reports by the relevant sectoral commissions as opposed to Parliament and the Presidency, “failure to which it will lead to dissolution of government.” Only then will the impact of public commissions be adequately felt.
The Billprovides for the trial of corruption and theft of public resources within 30 days and all appeals to be exhaustively concluded within 15 days. The Bill further provides stringent time limits for institution of charges by the Director of Public Prosecution, thus ensuring that corruption cases are treated with the urgency and seriousness they deserve. This is aimed at speeding up resolution of corruption cases and restore faith in the judicial system thus providing for easy recovery of the proceeds of corruption This, together with the establishment of special corruption and theft of public money courts, as well as the imposition of a life sentence for suspects convicted of corruption and theft of public funds with no room for presidential pardon and amnesty, would serve as an ideal deterrent to the culture of corruption in Kenya. This provision should further impose the denial of bail terms to suspects accused of corruption. While this may be seen as a backtrack on our constitutional gains against detention without trial, the issuance of bail has proved to be counter-productive in the fight against corruption, what with suspects still accessing office, in the process circumventing the law and sabotaging their cases through tampering with evidence and witnesses.
The Bill further strengthens the office of the Auditor-General by providing for the immediate resignation of public officers found unable to account for monies in their dockets. This is a laudable move as it pushes for direct action from the Auditor General’s reports as opposed to waiting for further investigation. However this provision is a poisoned chalice, for even though it promises expediency in dealing with misappropriation of funds, it may face strong headwinds upon the invocation of Article 47, which guarantees the right to fair administrative action and its interpretation, vis a vis the limitation of rights.
The cost of elections
This Bill provides that every Kenyan at the age of 18 and who acquires a national identity card shall be deemed to be a fully registered voter for purposes of elections and referenda. This clause does away with the continuous registration of voters, by proposing the use of the Identity Card/Passport for electronic voting.
It is important to note that all this will be dependent on the maintenance of a trusted register of Kenyan adults duly entered into a national register that IEBC can sync with its systems to conduct elections. That the Government controls this register may prove a hectic task in achieving free and fair elections as the it may attempt to manipulate the register voters to the advantage of a pro-system candidate. Adequate measure should be put in place to ensure that this register is fault and tamper proof, or else shades of the past will recur.
It is not without its weaknesses but, at the very least, Punguza Mizigo guarantees reduced government expenses, which is a win most Kenyans will prefer any day.
Looked at holistically, the Punguza Mizigo Amendment Bill 2019 is laudable project, which takes into account several of the problematic issues and offers plausible solutions. Although some of these amendments may be argued to have been structured as sweeteners to lure the public and county assemblies to concurrence, they have been aptly drafted to competently deal with the recurrent problems.
Where it has been criticised for lacking in public participation, this is a mere diversionary narrative by politicians who view themselves as the only directors of the fate of the country. At the very least, Punguza Mizigo guarantees reduced government expenses, which is a win most Kenyans will prefer any day. It is a bill that attempts to address a lot of maladministrative issues that have resulted in economic stagnation. It should not be bogged down by judicial injunctions to delay its discussion in the counties but should actually be intensely debated openly with a view of addressing its identifiable weaknesses. While the drafters of the constitution borrowed from the best democracies, it falls on us to address their shortcomings to suit our situation.
Punguza Mizigo is a refreshing place to start.