Key issues that BBI fails to address, and why getting these right is crucial for governance

By Kibe Mungai, Jackson Mwalulu and Charles Wambugu

By a Public Notice published in the daily newspapers on Friday, March 5th, 2021, the Joint Committee of the National Assembly and the Senate invited the public for public participation and submission of memoranda on the Constitution of Kenya (Amendment) Bill, 2020. The Memoranda were to be submitted by the end of the day on Thursday, March 11^th, 2021. This notice was extremely short. On such an important matter as the amendment of a Constitution promulgated through a participatory process, a minimum of 21 days should have been given.

Notwithstanding the said time limitation, we have burnt the midnight oil and now make proposals on some key issues among many that we would have otherwise wished to comment on. These include the structure of the National Executive, representation of the people, the conundrum of deputy governors without portfolio, the two-thirds gender question, and the status of Nairobi County as the capital of Kenya.

The National Executive

The structure of the National Executive proposed by the Bill is fundamentally flawed. Whereas the composition of the National Executive is more of a political than a legal question, it is the duty of the law-makers or any reformer of government to ensure that the institutions and officials of the Executive will work seamlessly and secure harmonious operations to enable effective government.

No significant sharing of Executive power

The expansion of the composition of the national Executive will not result in any significant sharing of power since the prime minister and his two deputies will be nothing but glorified ministers who would be completely subordinate to the President in three critical respects. One, the Prime Minister and his/her two deputies are liable to be dismissed by the President at his own prerogative. Two, the Prime Minister shall not hold office as of right on account of being the leader of the largest party or coalition of parties. To hold office, s/he must be supported by more than half of all the members of the National Assembly on the one hand, and that tenure of office can be terminated through dismissal by the President or a vote of no confidence by a majority of the Members of the National Assembly.

Although one of the declared objectives of the BBI reforms is to ensure ethnic/regional diversity in the composition of the national executive, there are no provisions in the Bill to achieve this in substance or to prevent the President from constituting a narrow-based government with the barest compliance with this objective.

The Unintended Consequence of the Bill is to Re-establish the Imperial Presidency

The Preamble of the Constitution of Kenya, 2010 provides, inter-alia, that our supreme law was enacted in recognition of “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”. Subsequently, Article 4 of the Constitution declares Kenya a sovereign Republic which shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10. The said principles of governance include good governance, integrity, transparency and accountability. Further, Article 129 provides as follows on the principles of executive authority. These are that executive authority derives from the people of Kenya and shall be exercised in accordance with the Constitution, and secondly, that such authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.

It is worth remembering that the struggle for constitutional reforms in Kenya that culminated in the promulgation of a new Constitution in August, 2010 sought to create an accountable and transparent government by dismantling the pillars of the imperial presidency and replacing them with new institutions and legal arrangements to enable a working constitutional democracy. Five of these safeguards under the 2010 Constitution are worth mentioning:

• A provision for a fixed term of Parliament (see Article 102 (1) of the Constitution) in order to protect the independence and authority of Parliament.
• A Provision for approval of nomination/appointment of members of the Cabinet by the National Assembly.
• Provision for approval of presidential appointment/nomination of senior state officers by the National Assembly including Principal Secretaries, the DPP, Attorney General, Chief Justice, Deputy Chief Justice and judges of the Supreme Court.
• Provision for removal of the President and Deputy President through impeachment by Parliament.
• Separation of the Executive and Legislature in order that Parliament may hold the Executive to account free from the compromises of the doctrine of collective responsibility at the heart of the parliamentary system of government.

In our considered opinion, some of the proposals of the Bill seek to claw back some of the safeguards in the 2010 Constitution enacted to protect our good Republic from the peril of the imperial presidency. We wish to mention five of the most significant provisions in the Bill in this regard.

Under Section 29 of the Bill, it is proposed that the words “nominate and, with the approval of the National Assembly” in Article 152 (2) of the Constitution be deleted.  What this means is that the President will have the power to appoint this Cabinet without the approval of the National Assembly. To the best of our knowledge, this proposal has not been disclosed before yet it will have extensive ramifications in terms of enhancing presidential powers and whittling down a critical safeguard of presidential accountability to the people through their representatives.

In similar vein, under the new Article 153A, Deputy Ministers will be appointed by the President without parliamentary approval. The immediate implication of the above revelation is that under the new Article 151D the two Deputy Prime Ministers will be appointed by the President without requirement for approval by Parliament.

Under the new Article 151(c)(a) the provision for dismissal of the Prime Minister by the President operates to strip of any value or meaning the provision in the new Article 151B – that the person eligible to be nominated as the Prime Minister is an elected member of the National Assembly who is the leader in the National Assembly of the largest party or coalition of parties.

Under the new Article 151(c), the Prime Minister may be impeached from office by a resolution supported by more than half of all members. This provision is problematic because the right to appointment of a prime minister vests in the largest party or coalition of parties and so the Prime Minister should lose office upon removal as leader in Parliament by such party or coalition of parties. This indeed is the position in South Africa where the President holds office on account of being the leader of the largest party. If he loses that position in the party, he must equally lose the presidency. However, there can still be provision for impeachment of the Prime Minister under the procedure applicable to the President.

Sections 32 and 33 of the Bill proposes to amend Article 154(2) and (a) of the Constitution by deleting the words “nominated and with the approval of the National Assembly” concerning the secretary to the cabinet and to delete the existing Article 155(3)(b) concerning appointment of Principal Secretaries. The effect of this amendment is that the highest leadership of the administrative state will be appointed by the President without parliamentary approval. The reasons given for these proposals are insufficient and certainly cannot trump the fact that parliamentary approval of such appointments to important State offices in a presidential system is based on the recognition that in modern times effective State power vests in the administrative officers of the State hence the emergence of the appellation “deep state” in recent political discourses. Such powerful officials should be appointed with parliamentary approval if accountable government of the people, for the people and by the people is to have any substantive meaning.

The Perils of Neutering the Office of the Deputy President

Among the members of the National Executive enumerated in the new Article 152 only two – namely the President and Deputy President respectively – will be directly elected by the people.  The other three highest ranking, namely the Prime Minister and her two deputies, will be appointed to office after the general election. Considering now that under the presidential system in our Constitution, the right to form and run government is determined by the people through a direct election, it should be easy to make the point that the proposed executive structure under the Bill gives a raw deal to the deputy president in two fundamental ways.

For purposes of a presidential election under Article 138 of the Constitution, a successful candidate for the office of deputy president must be a politician who commands the support of a sizable political constituency that expects to wield a proportionate power and influence in government after the election. 

Yet the creation of the office of Prime Minister and her two deputies will completely hollow-out the value of the deputy president’s office for the simple reason that whereas the Constitution specifically provides for the functions and powers of the prime minister, there are no similar provisions for the deputy president.

In other words, it will take a political dunderhead for any influential politician to take up the offer to become a presidential running mate only to be turned into a spectator in the operations of government after the election.

In a hybrid presidential system of government the functions of the Prime Minister set out in the new Article 151A (2) are precisely the legitimate functions of the deputy president as the principal assistant to the President. To be sure, under the former Constitution of Kenya the Vice President was the leader of government business in the National Assembly and he oversaw the government’s legislative agenda.

The long and short of the foregoing and fortunate thing is that the solution seems to be within the problem in two ways. First, by simply providing that the successful Deputy President shall be the Prime Minister, the destabilizing potential of the deputy president — that seemingly informed the BBI Agenda in the first place — will be cured. Secondly, the deputy prime ministers should be the leader and deputy leader of the largest party or coalition of parties in the National Assembly and they should both be elected MPs. Viewed this way, the Executive would be more directly answerable to Parliament and the spectre of political instability and endless conspiracies plus the attendant purges, coups and counter-coups would drastically reduce.

People representation

Section 10 of the Bill proposes to amend Article 89(1) of the Constitution to raise the number of members of the National Assembly from two hundred and ninety (290) to three hundred and sixty (360). There is sufficient justification of this proposal although it has not adequately addressed the concerns of some constituencies and counties as demonstrated below.

The Second Schedule of the Bill, inter-alia, provides for the delimitation and number of constituencies.  Specifically, the additional 70 constituencies shall be spread among the Counties set out thereunder. Pointedly, the IEBC is mandated to determine the boundaries of the additional 70 constituencies using the criteria provided for in Articles 81(d) and 89 (7) of the Constitution that respectively provides as follows:-

The electoral system shall comply with the following principles— (d) universal suffrage based on the aspiration for fair representation and equality of vote; 89 (7) In reviewing constituency and ward boundaries the Commission shall — consult all interested parties; and progressively work towards ensuring that the number of inhabitants in each constituency and ward is, as nearly as possible, equal to the population quota.

It is apparent subsection 1 of the Second Schedule contains an error: there is no Article 87 (7) in the Constitution and upon scrutiny the correct provision is Article 89(7). Bearing in mind the procedure for delimitation of electoral units set out in Article 89 of the Constitution, it is easy to discern some tensions and conflicts between delimitation under the said provision and the proposed delimitation pursuant to the Second Schedule. The immediate consequence of this conflict is that under the Second Schedule some of constituencies that could have otherwise qualified for delimitation under Article 89 have been left out in the Second Schedule. This needs to be addressed otherwise the envisaged delimitation is likely to result in retention under new guises of the unfairness sought to be addressed by the Bill.

In our considered view the following ten constituencies that have been left out in the Second Schedule of the Bill should be included:

• Wajir South — Wajir
• Hamisi — Vihiga
• Kinangop — Nyandarua
• Teso South — Busia
• Kieni – Nyeri
• Mutomo –  Kitui
• Kiharu – Muranga
• Kisii County – One additional constituency
• Migori County – One additional constituency
• Homa Bay County – One additional constituency
• Lamu – One additional constituency
• Isiolo – One additional constituency

Now that the size of Parliament is being expanded, no much harm would be caused by increasing the number of constituencies by ninety (90) instead of Seventy (70) if doing so will promote electoral justice and equity as we believe it will do. In this regard, we suggest that in order to promote equality of Counties the minimum number of constituencies in each county should be three. In this regard Lamu and Isiolo should qualify for one additional constituency each by operation of the law.

Since we have already proposed twelve constituencies that deserve delimitation, we invite the joint committees to determine the other eight that should qualify for inclusion in the second schedule of the Bill. In this regard, it should help for Parliament to require IEBC to create special constituencies to serve the current Corner Tribes of Mandera, Endorois of Baringo and Ogiek of Nakuru Counties in order to comply with various court decisions that have directed the same in order to ameliorate the marginalization of those communities.

Number of counties

Pursuant to Article 6 of the Constitution the territory of Kenya is divided into the 47 Counties specified in the First Schedule.  There is no magic to number 47 besides being the number of districts created under the Districts and Provinces Act, 1992. Since the process of creation of districts was always based on political rather than merit considerations there is no reason why Kenyans should continue to be held hostage by the said Act for purposes of determination of the number of counties. In this connection we propose that there is considerable merit to elevate the following former districts created after 1992 into Counties: Mwingi, Gucha, and Kuria Districts.

Based on geographical size, population and community/ethnic factors there is every justification to establish Mwingi, Gucha and Kuria Counties. We can offer details on this submission if Parliament needs it.

The conundrum of deputy governors without portfolios

The following cases pending before the High Court in Nairobi concern the conflict between governors and deputy governors in the operations of county governments: Nairobi High Court Petition No. 361 of 2019 Bernard Chege Mburu vs. James Karanja Nyoro & Others; Nairobi High Court Petition No. 2019 James Gacheru Kariuki vs. Hon. Attorney General & Others; Nairobi High Court Petition No. 490 of 2019 Hon. Sen. Ledama Ole Kina vs. Hon. Attorney General & Others; Nairobi High Court Petition 513 of 2019 Harrison Karira Thuku vs. Central Bank of Kenya & 8 Others.

Incredibly, the BBI process has not addressed this conundrum, which has preoccupied courts and Parliament over the last eight years. When the above cases came up for hearing at the High Court Nairobi on Monday 8th March, 2021 before the Honourable Justice Weldon Korir, he directed the parties and their advocates to refer the matter to the BBI process and seek a solution through a constitutional amendment. In compliance with the court’s directions we wish to propose two solutions.

First, Part 2 of Chapter Eleven of the Constitution on devolved Government should be amended to establish the office of County Premier analogous to that of Prime Minister and to provide that the deputy governor shall be County Premier. In one fell swoop this will solve the vexing problem of deputy governors without portfolios and promote broad-based government at the county level. Secondly, Chapter Six of the Constitution should be amended to provide expressly that any state officer – elected or appointed – must be suspended upon being charged in court by the DPP whereupon their respective deputies shall act in the said office until the trial court determines the case.

Two-thirds gender question

Section 9 of the Bill, inter-alia empowers the IEBC to ensure “that not more than two thirds of the party’s candidates are of the same gender”. Whilst this provision is a major step to help in realization of the two-thirds gender principle, it will not be sufficient to manage the number of women getting into Parliament through nomination slots thus expanding the size of Parliament to the dismay of many Kenyans concerned with the high cost of government. In order to reduce the number of nominated women on account of the two thirds gender principle we wish to propose three amendments.

Articles 88 and 90 of the Constitution should be amended to provide that IEBC must ensure that the party lists submitted by each political party complies with the two-thirds gender principle at the County level. This will ensure for instance that if Siaya and Kiambu have 9 and 15 constituencies respectively, ODM and Jubilee will have high chances of complying with this principle in their respective strongholds. Otherwise there is no value in Jubilee submitting a list consisting of 8 women in Siaya County and only three in Kiambu County and vice-versa.

Article 91 (1) of the Constitution should be amended to make it an express obligation of political parties to comply with the two thirds gender principle in nominating candidates at the county and national levels.

Article 92 of the Constitution should be amended to provide that in allocating funds from the Political Parties Fund the number of votes garnered by elected women shall be multiplied by two in order to give additional incentives for political parties to nominate women for elective positions.

We are convinced that the above reforms coupled with their strict enforcement will help to drastically reduce the number of nominated women. This would then justify the increase of constituencies by ninety (90) rather than the current seventy (70) in order to achieve equity at the basic level of democracy as opposed to secondary consideration of gender and other special categorizations. In any event, the Constitution expressly ordains a democratic constitutional order.

The status of Nairobi county as the capital of Kenya

Pursuant to Article 184 of the Constitution and the Urban Areas and Cities Act, Nairobi is the Capital of Kenya. Thus Nairobi has two statuses under the Constitution. First it is the capital of Kenya and hence the seat of the National Government and its institutions. Secondly, Nairobi is a County under a governor and MCAs like the rest of the 46 Counties. Thus the territory or geographical space that comprises Nairobi County is the official dwelling of two “sovereigns” namely the President and the Governor of the City of Nairobi.

The administrative and political complications wrought by the dual status of Nairobi since 2013 cannot be belaboured especially now that the General Mohamed Badi—led Nairobi Metropolitan Service (NMS) is a living embodiment of these political and administrative tensions. In short, without proving his capacity in Nairobi no President can be truly successful and the same case applies to the governor. In our considered view, this Bill would be incomplete and a betrayal for Nairobians unless this matter is addressed before the Referendum. Towards this end we wish to make two proposals.

The first is that a new Article 184A should be introduced in the Constitution to carve out of Nairobi County an area to be known as Nairobi Capital District which shall be administered directly by the President and his assistants as the Capital of Kenya. Parliament should enact the requisite legislation to achieve this objective. 

Secondly, as a consequence of the creation of the Nairobi Capital District the boundaries of the three Counties adjacent to Nairobi County namely Kiambu, Machakos and Kajiado should be altered in order to compensate Nairobi County for the loss of the area to be set aside for the capital district and to expand the size of Nairobi City County. In this regard it should be noted that geographically Dar-es-Salaam is considerably bigger than Nairobi, not to mention that a huge part of Nairobi comprises Nairobi National Park, Ngong Forest and Karura Forest.

In all fairness, to ensure that Nairobi city is properly planned and remains East and Central Africa’s premier city, it must be expanded as a matter of sovereign priority. In this regard Parliament should provide for a mechanism to give additional financial grants to Kiambu, Machakos and Kajiado for ceding part of their areas to permit the expansion of Nairobi City.

In our considered view, if the above proposals are implemented, the next governor of Nairobi City County will have “lesser interference” by the President or the National Executive. At the same time the National Government will be responsible for investment and maintenance of critical national infrastructure and assets that are situated in Nairobi’s CBD and its environs.