Creating positions for Nasa principals won't need a referendum

The Senate will for the first time be sitting at the newly constructed Chambers in County hall on the 5th of December 2013. PHOTO | EMMA NZIOKA | NAIROBI

“I read the Nasa manifesto. The most important thing, they said they would amend the Constitution so that four people can get positions and they say Kenya has a hybrid system. Those changes will cost Kenyans Sh20 billion” 

-         Aden Duale at a Jubilee Rally in Machakos County on July 4, 2017

The National Assembly Majority Leader, Adan Duale, was speaking in Swahili in Machakos County, and referred to the manifesto launched by the opposition National Super Alliance (Nasa).  Jubilee has claimed that the positions proposed by Nasa would require a referendum to implement.

The procedure for amending the constitution is laid out in Chapter Sixteen. Article 255 (1) of the constitution says a referendum is necessary if a constitutional amendment relates to:

(a) the supremacy of the Constitution;

(b) the territory of Kenya;

(c) the sovereignty of the people;

(d) the national values and principles of governance referred to in Article 10 (2) (a) to (d);

(e) the Bill of Rights;

(f) the term of office of the President;

(g) the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies;

(h) the functions of Parliament;

(i) the objects, principles and structure of devolved government; or

(j) the provisions of Chapter Sixteen.

Amending the Constitution to create the positions of Premier Cabinet Secretary and two positions of Deputy Premier Cabinet Secretary, in addition to the existing positions of President and Deputy President would not touch on any of the conditions in Article 255 (1), and so a referendum would be unnecessary.

It is also possible to appoint co-principals of Nasa into the Cabinet without creating the positions in the Constitution, though they would require the approval of the National Assembly, as happened with Najib Balala and Charity Ngilu in 2013.

So it is not necessary to have a referendum in order to create positions for Nasa co-principals, which means Mr Duale’s claim is false.

Nasa ‘s manifesto calls for changes that are much more far-reaching than the creation of three positions. On Page 14 the manifesto states that Nasa will work with the Kenyan people to amend the Constitution:

“…to provide for a hybrid executive system based on the Bomas Draft as a mechanism for enhancing cohesion. Nasa recognises that a directly elected president in a presidential system favours larger communities and encourages exclusivity”.

Presumably, based on this text, Nasa’s solution is to do away with, or balance, a directly elected presidency, which it finds unsuitable.   

Newsplex accessed the Bomas Draft. The Bomas Draft envisioned a President and a Prime Minister, who was the head of government. The Prime Minister, who was responsible to Parliament, was supposed to coordinate the work of the ministries and the preparation of legislation and preside over meetings at Cabinet.

THE PEOPLE'S SOVEREIGNTY

According to Mr Kibe Mungai, the changes proposed in the Nasa manifesto would satisfy two conditions of Article 255 that would make a referendum necessary: relating to the functions of Parliament and sovereignty of the people.

"The meaning of the people’s sovereignty, what they decide in an election, and the functions of Parliament, qualify the issue for a referendum,” he told Nation Newsplex. “In the current parliament, no one serves in the legislature and the executive at the same time. The function of Parliament is to check the President in a presidential system of government. But in a parliamentary system, parliament and the executive govern together. That is a fundamental change in everything” he said. In the Bomas Draft ministers were elected members of Parliament. 

Under the Bomas Draft, the directly elected President would only be head of State, while head of government would be the Prime Minister, or the leader of the party with most votes in the National Assembly. That differs from the current situation where the President is both Head of State and Head of Government.

On the sovereignty of the people, he added: “The direct vote of the people decides two things. It decides who forms government and who makes the law. In a parliamentary system, the people do not decide who government is. It is parties who decide. The people in a parliamentary democracy do not decide who the chief executive is. That one is decided after the election, after we have known who the dominant party is.”  

According to Prof Nzamba Kitonga, who chaired the Committee of Experts that produced the Harmonised draft of the constitution in 2009, a referendum would be required to amend the constitution along the lines of a Bomas draft.

“Bomas Draft had both a parliamentary system of government with a prime minister and a presidential system as the head of executive.”

So how much will it cost?

Mr Duale and other Jubilee politicians, including President Kenyatta, say the changes would cost Sh20 billion, although he does not say how he arrives at this figure.  Newsplex has made an estimate.

The Interim Independent Electoral Commission (IIEC) spent Sh7.2 billion to run the 2010 constitutional referendum. In that referendum, there were 210 Constituencies, as opposed to 290 today.

In 2017, there will 40,883 polling stations against the 27,689 polling stations of 2010, and 12.6 million voters against the 19.6 million expected to vote this year.

That means there are 1.4 times the number of constituencies, 1.5 times the number of polling stations and 1.5 times the number of voters this year as voted in the referendum.

Multiplying Sh7.2 billion by 1.5 gives Sh10.8 billion, without accounting for inflation or any other changes.

Newsplex looked at data from the World Bank to estimate the effect of inflation. Given that in recent years the consumer price index has increased by nine percentage points each year (where 2010 is 100),  the Consumer Price Index for 2017 would  be 168.6, which means that money quoted in 2010 would now be worth 68 per cent more. That means Sh 10.8 billion would increase to Sh18 billion, which is lower than, but close to Sh20 billion.

On the other hand, if the referendum were carried out within a general election, all it would take to carry it out is adding another question to an already existing ballot, which would result in little extra cost.

While it is clear a referendum would be necessary to amend the Constitution along the lines of the Bomas Draft, it would not be necessary to provide jobs to the three Nasa co-principals.

Furthermore, although Sh20 billion mirrors previous spending in Kenya, it is not clear that money would have to be spent if the referendum were done within a larger general election. Therefore it is not possible to prove Mr Duale’s claims definitely.