By Gill Ghai
In 2016 Waikwa Wanyoike and I wrote a Katiba Corner piece about the Okoa Kenya popular initiative to amend the Constitution (which you may remember the IEBC said had not got enough valid signatures).
We ended: “Let us hope that anyone else with popular initiative schemes will be more modest in their ambitions, and think things through better.”
Now we have the Thirdway Alliance initiative (“Punguza Mizigo”), and I fear those hopes have not been realised.
A MIXED BAG OF IDEAS
Many of Thirdway’s underlying issues are things Kenyans will have much sympathy with: Far fewer MPs, no allowances for legislators etc., abolish Deputy Governor position, any commissioners to be few (not more than five, and part-time only), audit and other reports on corruption to be automatically adopted, and trials to be done in 30 days, life sentences for those convicted, ID card means you are registered to vote.
But five minutes’ reflection would show many of them are very superficially thought through. And now that we have the Bill, too, which Thirdway had to present to the IEBC with their signatures, this becomes more obvious.
Let’s take just a few Thirdway ideas. Counties would be constituencies, each to elect two MPs, a woman and a man. Lamu (with 69,793 registered voters in 2017) would have the same number of MPs as Nairobi (2,251,921 registered voters). The voice of every Lamu voter in the National Assembly would be 32 times as strong as that of every Nairobi voter. We have some of this imbalance now with the county woman representatives. And we have it with the Senate, but as a counterbalance to the National Assembly. Suppose we shifted to a parliamentary system (Raila’s preference): The voice of a Lamu voter would be equal to that of 32 Nairobi voters in deciding which party would form government.
Providing that the Auditor General’s reports must be automatically adopted, and lead to prosecutions, gives too much power to this office, and detracts from the role of the DPP.
Providing that all corruption trials must end in 30 days is simply unrealistic. The facts in these cases are often very complicated. And what happens if a trial does not finish in time?
The minimum funding to counties would be raised from at least 15 per cent of national revenue to at least 35 per cent. But no additional powers would be given to the counties. The national government is responsible for the police and military, the courts, education, major roads – all very heavy budget items. There was no suggestion to transfer any of these to the counties.
Some of the things people signed for have changed in the Bill, though, to be fair, the Thirdway Bill is closer to the document that people signed than the Okoa Bill was to its signed petition. But there are still a number of proposed amendments to the Constitution in the Bill that many who signed the Thirdway petition would not have anticipated.
The real problems (as with Okoa Kenya) are with the procedure as much as with the ideas.
With Thirdway, the first problem is: Whether the one million voters (if they exist) actually “signed”. People were invited to support the petition for amendment through the party’s website. But if you click on a website that you agree with a proposal, even if you give your ID, have you really “signed”?
Second, what did supporters really sign? On the Thirdway website, above the chance to click, the following statement appeared: “I, the undersigned being a registered voter, do hereby support Thirdway Alliance Kenya popular initiative referendum that seeks to reduce Members of Parliament, cap the overall cost of running Parliament & increase devolved funds to 35% from current 15% pursuant to popular initiative provided for in Article 257 of our Constitution”. No mention of no Deputy Governor, or ways of dealing with corruption. True these points were in a list above, but surely what they “signed” (if they signed anything) was this statement.
Are these points nitpicking? If the country is to go through the huge, expensive, upheaval of a referendum and constitutional change, surely we need to make absolutely sure that the people who signed really understood.
NOT WHAT THE CONSTITUTION INTENDED
I believe that the Thirdway initiative, like Okoa Kenya, has departed in important ways from what the Constitution drafters had in mind.
First of all, Article 257 of the Constitution says, “An amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.”
Thirdway proposes to change 29 Articles of the Constitution. In my view, it was not intended that a large number of amendments should be grouped together and required just one vote of support from any member of the public.
The second problem lies in a proposal such as that of Thirdway:
The Constitution provides that the proposal may be a fully drafted Bill to amend the Constitution, or a “general suggestion”.
Although Thirdway’s general suggestions are rather less vague and general than those of Okoa Kenya, we still find one like: “Elevate Senate to be an Upper House with veto powers”. In the Bill, this now appears with a good deal of detail. For example, the Senate may decide that any decision of the National Assembly (does this include approval of officers like Chief Justice or commissioner?) contravenes the Constitution or “goes against public interest”, and it may veto the decision! Did people who “signed” understand all this?
Again Thirdway said, “Reduce cost of running Parliament from current Sh36.8 billion to Sh5 billion per year”. How this would be achieved was never made clear. This was to include capping MPs salaries; but this has disappeared from the Bill. Certainly just having only one-third as many MPs would not have this impact on expenditure.
The Kenya Constitution provision is inspired by the Swiss supreme law. In Switzerland, the constitution and law require that a people’s amendment proposal be focused and deal with only one topic. Last year, a proposal was made (and rejected) to amend the Constitution to provide that international law would not take precedence over the Constitution – a very focussed point. Thirdway has proposed a large number of changes, covering a wide range of types of changes. Is this what the Kenyan Constitution means when it speaks of “an amendment”?
A good test of the “general suggestion” made by someone wanting to change the Kenyan Constitution would be if someone else could prepare a formal Bill for Parliament detailing the changes needed. If no one could do this, could the people who signed have known what change(s) to the Constitution they were supporting? In Switzerland, if the petition is in the form of a “general suggestion”, the actual Bill spelling out the change is prepared by the Parliament, not the proposers. Many of the Thirdway proposals would have been difficult for someone else to put into law. In fact, even Thirdway changed its mind in some respects before preparing the Bill.
OTHER PROBLEMS IN KENYA
Another serious problem has been the lack of open discussion. Where has the debate been about these important ideas? Where will the debate be if the IEBC allows the matter to go to the counties which have to vote on it in three months? If a majority of counties approve it but Parliament rejects it, how informed a debate will take place before the referendum?
Finally, there are many other ideas about changing the Constitution floating around. Many directly conflict with the Thirdway proposals – its proposals for Parliament conflict with the two-thirds gender Bill, which Parliament seems unable to pass;
the two MPs per county proposal would not work in a parliamentary system, as commented earlier; giving the counties 35% of national revenue conflicts with those who want an intermediate layer of government. How can all these suggestions be considered in a rational way without us ending up with a mishmash of a constitution?
The writer is a Director at Katiba Institute.