Clamour for a referendum on amendments to the Constitution, the 2019 national census and the delimitation of boundaries will shape the political environment in the next three years, even as the country grapples with the current standoff after the fresh elections.
Though both Jubilee Party and the opposition National Super Alliance (Nasa) seem to agree there is a need to review the Constitution, there appears to be no middle ground on specific articles that should be amended or the scope and scale of any proposed changes.
That will be a cause of friction for both sides post swearing in of President Uhuru Kenyatta.
Jubilee is considering floating the referendum issue in a few years — with sources pointing at 2020 as the proposed date — but fears that despite the urgency to alter the supreme document, it may end up polarising the country, just like the 2005 one did.
This, it should be noted, will be before the scheduled 2022 elections.
The 2005 referendum ended up emboldening the opposition, led by Mr Raila Odinga, after they defeated a meek government campaign fronted by President Mwai Kibaki which had submitted a draft constitution.
According to insiders, Jubilee may shelve the idea of amendments through a referendum if they feel the process and eventual outcome may strengthen the opposition and weaken the chances of Deputy President William Ruto ascending to the presidency, should his candidature be confirmed as planned.
Jubilee strategists are, therefore, working on a formula that will incorporate the opposition for a bipartisan approach to the Constitution, arguing that seven years provided enough time for post-mortem of the law.
“We do not want to engage in conflict but to have an honest relook of the Constitution and how best it can serve the people of Kenya. We cannot change this position to create posts for anyone,” said Mr Aden Duale, the Majority Leader in the National Assembly in an apparent dig at Nasa.
The opposition had in the run-up to the August 8 election proposed to change the Constitution to create room for all its senior leaders had it won the elections.
Mr Duale said a change-the-Constitution moment needs not be kick-started by the political class, suggesting that religious leaders can shepherd such a delicate process.
Sources in Jubilee, who spoke in strict confidence, said some issues that the parity would like to put on the table for a referendum include the gender question. They would like to do away with the provision that states that there should not be more than two thirds of any gender in all elected seats.
The party is also considering doing away with a number of the 15 constitutional commissions as some are seen as not having delivered on their mandate. The ruling party is also contemplating doing away with the provision where the Commander-in-Chief has to seek Parliament’s nod whenever he wants to deploy the military.
Then there is a proposal to revive debate on appointment of Cabinet Secretaries from elected Members of the National Assembly and Senate.
On Tuesday, Nasa leader Raila Odinga announced the formation of a people’s assembly to start preparing for fresh elections and amendment of the supreme law.
He said the assembly would comprise elected leaders and key players from the civil society, trade unions and youth, and would push for amendments to the Constitution to ensure that Kenya is more democratic.
Mr Odinga further announced that the coalition would form a task force to look into systemic governance weaknesses that have precipitated the political crises.
Nasa principal Musalia Mudavadi said they would not be party to a top-down approach since past experiences had shown that such falter.
He gave examples of the failed Kilifi Draft in 2005, Naivasha mistakes in 2010 and Okoa Kenya referendum push, which he claimed was easily sabotaged for lack of ownership by the people.
“We don’t want to be prescriptive in a top-down approach. We will let the Assemblies be the instruments that provide avenues for suggestions and collation. We want people to have a conversation, a dialogue among themselves, on what we must do to save our country. We don’t want to make the same mistakes of the political elite setting the agenda and then we run around pretending to offer civic education. Experts can wait to put it into formal proposals,” he said.
He spoke as protestant churches called for creation of the post of prime minister, two deputies and official opposition leader to accommodate more communities in leadership and make the political system more inclusive.
The National Council of Churches of Kenya said the positions of PM, deputy PM and opposition leader — to be created through Parliament in a referendum — would help promote inclusivity and ownership of the government.
Secretary General Canon Peter Karanja called for national dialogue between President Kenyatta and Mr Odinga to reduce ethnic tensions witnessed during the August 8 and October 26 elections.
But ODM Director of Elections Junet Mohamed said Nasa would not be party to amendments to the Constitution by the government.
“The cancer this country suffers from is ethnicity perpetuated through bad elections since Independence by regimes that use the existing government structures to keep themselves in power and, at the end, hand over to their preferred appointees. The dream of Cord included changes that would have made the election better but it was rejected,” he said.
Another proposal that is likely to face opposition is that national census results should not be used in boundaries delimitation but in resource allocation only.
The Constitution in article 89 (2) states: “The Independent Electoral and Boundaries Commission (IEBC) shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than 12 years, but any review shall be completed at least 12 months before a General Election of members of Parliament.”
With the last delimitation having been done in the run up to 2013 elections, there will be another one before the 2022 election.
The Constitution further states that the process should be completed 12 months before a General Election, meaning that the new boundaries must be gazetted before August 9, 2021.
“As Parliament, we can promise both IEBC and Kenya National Bureaus of Statics that we will be on hand to ensure they have adequate financial resources to carry out these noble duties,” said Mr Duale.
Despite some communities like Kuria demanding a county of their own, it would be an almost impossible feat to fulfil since the Constitution has placed the number of counties at 47.
The constituencies are also established at 290. However, their boundaries can be altered. Those that will be greatly affected will be wards as they can be increased or decreased depending on the views of the commission.
Delimitation of boundaries is likely to be highly watched across the country as county leaders seek to gain advantage.
Ms Caroline Sabiri Manyange, manager in charge of Boundary Delimitation and Mapping at IEBC, said the commission is already preparing for the process.
“The boundaries review follows a 8-12 year cycle as per article 89 of the Constitution. The IEBC has scheduled this to start in 2018-2020. The commission currently is engaging the other government departments to resolve issues arising from the 2010/2012 boundaries review, more so the conflicts on boundaries, We are also looking forward to engaging all stakeholders to create awareness in readiness for public hearings on electoral constituencies and wards,” she said.
The national census in Kenya is done every 10 years. But the outcome of the 2009 census is typically controversial, considering the importance of regional, ethnic and gender numbers in politics, public service appointments and allocation of resources, among other considerations.
KNBS director of Population and Social Statistics MacDonald George Obudho said this time the process will be paperless and will be exclusively undertaken through technology.
“The road to national census starts at least three years earlier. We already did a pilot cartographic mapping of Trans Nzoia and parts of West Pokot. We are now rolling out cartographic mapping across the country. The census will be on the night of 24-25th August 2019,” he said.