Digesting the different referendum initiatives

Promulgation of the 2010 Constitution took about 22 years to accomplish.

Now, a referendum push started this year through the Building Bridges Initiative (BBI), Punguza Mizigo, among others, is gaining momentum.

These initiatives justify their constitutional proposals on inclusivity. The Thirdway Alliance Party’s Punguza Mizigo defines “inclusivity in its raw and real meaning (as) when each citizen gets equitable access to … the national cake … With inclusivity attained at the ward level, the majority of Kenyans may not care who actually becomes President.”

BBI defines inclusion as the sharing of executive power between the offices of the President, Deputy President, Prime Minister and possibly two Deputy Prime Ministers and other key national appointments, as well as creation of a regional level of government to ensure several Kenyan communities are accommodated in the country’s top political leadership.

Political analysts argue that the proponents of the current constitutional reform crusade are ideologically divided into those who favour centralisation of power, and those who support the entrenchment of devolution; the centrists and devolutionists.

PROPOSALS

Punguza Mizigo advocates for the reduction of constituencies and hence parliamentarians.

In the National Assembly, each county will elect one woman and one man, with an additional six nominated MPs from special interest groups. Senate will constitute 47 elected senators. The membership of constitutional commissions is also reduced. The positions of county woman MP and deputy governor are also abolished.

Punguza Mizigo explains that the reduction of parliamentarians and their emoluments will save the country Sh31.8 billion.

Other reforms are: elevation of Senate to be the upper house with veto power; increasing county revenue allocation to, at least, 35 percent; replacement of the National Government Constituency Development Fund with Ward Development Fund; abolishing gender inequality in representation; creating a one seven-year presidential term; barring from public office any person adversely mentioned in public inquiry and audit reports; speedy trial for alleged corruption offenders; life sentence for suspects convicted of graft with no presidential pardon; automatic registration as voters of any Kenyan with valid ID, et cetera.

The BBI, by the President and Mr Raila Odinga, is expected to table its report soon.

REFORMS

The BBI observed that their initiative would have advocated for the creation of a Bomas draft type of national executive and a regional level government.

Other proposed reforms include; measures to create a national ethos; commitment of more resources to devolution; creating an electoral environment that minimises electoral conflicts; and anti-corruption measures.

Another major constitutional reform initiative is the Dialogue Reference Group collectively supported by the Muslim, Hindu and Christian clergy.

Some of their proposals are: establishment of National Transition Justice Authority and an independent Economic and Financial Crimes Commission; reduction of constituencies to 150; converting Senate to the upper house; realisation of the two-thirds gender rule; introduction of office of prime minister and two deputies; two percent of national revenue to be reserved for the Judiciary; raise the floor of county revenue to 45 percent, et cetera.

The key reform proposals by the Council of Governors (CoG), as of now, include: raising county revenue to at least 45 percent of the preceding year’s tax collection with five percent being reserved for the youth, five percent exclusively to ward development and five percent to women; separate two per cent to be reserved for the Judiciary; and a county role in enforcing local security issues.

REVENUE

Civil society is also in discussion about whether to raise their own constitutional proposals or insist on religious fidelity to implementation of the existing Constitution, or both.

Mr Billow Kerrow has contradicted the Punguza Mizigo claim that the institutions created by the 2010 Constitution are expensive to implement.

First, he explains that in South Africa and Nigeria, the devolved units receive 52.5 percent and 47.8 percent of national revenue, respectively; and that Kenya’s combined annual expenditure of parliament and county assemblies is Sh60 billion, that is two per cent of the total national expenditure.

Punguza Mizigo’s proposed 35 percent allocation of national annual revenue to counties may present its biggest hurdle since other initiatives have put the figure of 45 percent.

In relation to BBI’s proposals regarding the expansion of the national executive, analysts argue that this unfairly guarantees the political and economic hegemony of the current dominant political party leaders as well as their ethnic communities.

REFERENDUM

All the above initiatives must be subjected to a referendum, according to Articles 255 and 257 of the Constitution, when they propose changes to the term of Office of the President and the structure of devolved government.

However, the functions and the structure of the executive can be altered through ordinary legislation.

The equitable revenue share can be revised upwards even through a Cabinet decision and subsequently a budget appropriation.

All popular initiative amendments must be passed by the majority of county assemblies and then subjected to each of the two houses of Parliament.

If the proposed changes of a popular initiative are outside those mentioned in Article 255, then only a single majority of both houses is required to pass them.

Any constitutional Bill not covered by Article 255 and introduced in Parliament under Article 256 can only be approved through the support of not less than two-thirds of all members of both houses.

UNITY

The question of auditing the current Constitution to determine its implementation status is critical. Many devolution and human rights provisions are routinely flouted.

What guarantee is there that amendments will not claw back existing provisions or they will also not be implemented?

Any dialogue and consensus building for constitutional change requires an enabling environment.

We need to lower the political temperature, so that any possible constitutional changes produce a win-win outcome. A divisive referendum will not engender unity and inclusiveness.

Finally, the religious sector may, at the end, act as both a referendum player and an arbiter in case conflict rears its ugly head. This sector must prepare itself for such eventuality.

Prof Kibwana is Governor of Makueni County