Blog Details

Katiba Institute Article

Open letter to Bunge on BBI Bill [Part II]

Open letter to Bunge on BBI Bill [Part II]

The BBI Bill to change the Constitution has a few good ideas. Genuinely good ideas can be introduced into Parliament in the usual way — as constitutional amendment Bills, with full public discussion and political and professional analysis. This would be better than being brought in through a massive Bill like the current one.

I would urge members to think about the process into which they have been drawn. It is true that if Parliament rejects this Bill the people may accept it. But this process involves Parliament being manipulated: You are compelled, if you want a, b and c, to accept also x, y and z. This is what is wrong with the whole idea that a ‘popular initiative’ (a ‘people’s initiative’) can involve many amendments (an issue that is before the courts).

It is particularly problematic when the people’s initiative is in reality not a people’s one at all but intensely political – meaning between politicians.

Good ideas may be picked up later and enacted without the baggage of the other ideas that are less wise. In my humble, view some of the latter are so serious that they outweigh the good ones. Here are a few.

PROPOSAL FOR PRIME MINISTER, TWO DEPUTIES

This is supposed to cure the curse of violent elections. It makes the assumption that any serious possible contender for President will be prepared to participate in a deal under which only one person stands for President and others get much less exalted positions if the first person wins.

Kenya has many people with legitimate ambitions to stand for President. It is a now long past the time when the one-party state crushed serious opposition and ambition. The likelihood is that, even with this change, two or three people with some credibility would stand for President as part of ethnic alliances.

If election processes continue to lack credibility, one defeated candidate may reject the result, and violence ensues. The recent by-elections give us cause for reflection.

It is true that Tanzania and Uganda have prime ministers. But those people are very low key (though with the death of the Tanzanian President, the Prime Minister is becoming visible).

But who, in Kenya, among the powerful politicians, would be content with this role? The lure of the powerful presidency will remain strong. Kenya has a vibrant political culture, and this proposal will not do what it is touted to do.

Ironically, the underlying ethnic calculations go quite counter to the BBI’s supposed spirit.

Any deal that arises out of recent history might stand for 2022, but will it work for future elections? Shall we be amending the Constitution again for 2027?

THE (CONNECTED) LEADER OF OPPOSITION PROPOSAL

The BBI proposal is that the person who comes second in the presidential election should become Leader of the Opposition with a seat in the National Assembly.

This is odd. In 2007-08 Raila Odinga believed he had won — as did many others (the rights and wrongs are not relevant here). He — and those who instigated violence at that time — were not convinced they should not be in power. The same was true in 2017.

hey did not want to be Leader of the Opposition. Indeed Raila was Leader of the Opposition in 2007. Apart from ensuring that one person does not find him/herself in the political cold (with no publicly paid income and no obvious role) it serves very little purpose.

And if that person’s party actually wins most seats in the National Assembly he/she (though clearly a really credible player) would not become Leader of the Opposition anyway, because the Prime Minister would come from that party, but from within Parliament.

JUDICIARY OMBUDSMAN

The Judiciary Ombudsman (an accessible process for complaints about the Judiciary) is a good idea – introduced by former Chief Justice Willy Mutunga. It is actually not clear why the Commission on Administrative Justice could (or should) not perform this function (which does not include complaints about how judges decide individual cases).

But the BBI proposal is for the Ombudsman to be appointed by the President and sit in the Judicial Service Commission. There is no guarantee of an appointment process that ensures independence of the office from the Executive. This is particularly problematic when the officer will sit in the JSC, and thus potentially enhance the influence of the President in that institution.

It is extremely important for Parliament to avoid any appearance of trying to reduce the independence of the Judiciary.

SALARIES AND REMUNERATION COMMISSION

The SRC was designed as an institution with professional skills that is independent of the people whose salaries it has a role in fixing. The proposed changes rather undermine this. At present its make-up is a balance — people nominated by various bodies that are affected by its decisions, plus input from those not directly affected but with valuable insight into the issues.

There is a government nominated presence but not in the majority. And Parliament — definitely affected by SRC decisions – does not have a say. The new proposal again does not guarantee an independent process of appointment. It leaves appointments with the President and Parliament.

It is understandable that as parliamentarians you may like this better – but there was a clear rationale for not involving you in these particular appointments. Your mandate is to act in the national interest.

RAISING MINIMUM NATIONAL FUNDS ALLOCATED TO COUNTIES FROM 15%-35%

Counties could do with more money. But this more than doubles the minimum to go to the counties. The money they get must depend on the functions they perform.

The national government has many inescapable and expensive obligations: Defence and police, foreign relations, major roads, railways and aviation, courts, Parliament and education. Before increasing money for counties, investigation should surely be carried out to ensure it corresponds to how much is needed for the counties’ functions.

Raising their revenue locally makes county governments more accountable to their taxpayers. The formula for allocating national revenue is supposed to encourage them to raise own revenue. Raising the minimum they receive nationally by so much must undermine that principle.

However, in reality counties do not now get what they ought according to the Constitution. The best approach to ensuring they get what they need is to make the existing constitutional provisions for allocating revenue work as they should.

The amount allocated to them can already be increased without changing the Constitution.

LIMITING AMOUNT OF NATIONAL FUNDS PER PERSON TO COUNTIES

This is one of the most worrying. The Bill adds a new criterion to those in Article 203 for sharing national funds between counties.

It is: “the need to ensure that the average amount of money allocated per person to a county with the highest allocation does not exceed three times the average amount per person allocated to a county with the lowest allocation.”

I assume it is meant — and may be read by the courts — as limiting the maximum to be allocated to any county to three times the amount per person as any other county receives.

Any member from a marginalised county — or concerned about national unity and justice to marginalised areas — should scrutinise this carefully. At present, a marginalised county may get many times more per person than wealthier and larger counties — necessary to bridge the gap and ultimately bring equality to Kenyans wherever they live.

Yes, there is pressure for ‘one person one vote one shilling’. But this slogan makes sense only if people begin at the same starting point, and if one shilling will achieve the same for everyone. We are not there. We have a history of inequality and marginalisation that only affirmative action can remedy.

This means being prepared to allocate more resources now to places that have received less in the past, or where it is harder to achieve development because of climate, lack of local resources, or geography, for example.

By JIILL COTTRELL GHAI

Director, Katiba Institute

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2021-03-20-open-letter-to-bunge-on-bbi-bill-part-ii/