I write in response to your press advertisement asking for public input on the Constitution (Amendment) Bill.
First, may I make a protest? That advertisement appeared a week before your deadline. It seems inconsistent with your being serious about public input. It is not uncommon for Parliament to give the public such a short time but it seems particularly inadequate when it is the Constitution that may be amended. Not something about plumbing or taxes but about our fundamental document as a nation.
And it stands out especially when the Constitution requires 90 days for any constitutional amendment that comes direct to Parliament (not via the counties as now). Indeed, are you sure that the 90-day requirement does not apply? This is a ‘Bill to amend this Constitution.’
I was of two minds on whether to write at all. It might seem a bit pointless. After all, if you say “No” to the Bill, it goes to the people in a referendum and they can say “Yes”. No doubt this has occurred to you.
But after reflecting on your role, I felt it important to write. It is not just about individual proposals, but about the whole process, and your contribution to it.
You are the representatives of the people of Kenya in Parliament, one of the three branches of government. One might say the most important of the three branches in this context. You make the law.
Even the President has no choice: If you pass the Bill, he must (subject to the issue of referendum under Article 255) sign it. He can’t even send it back with reservations.
You are given the function of a constituent assembly – having power to change the Constitution. Yes, for certain topics there will have to be a referendum. But that is common in constitution-making and amendment processes. It does not diminish your constituent power.
After you make your decision, the people must make theirs. Where will they turn for guidance? Surely they ought to be able to look to your deliberations. Those deliberations, as is usual in parliaments, should be reasoned, thorough, and comprehensive, and carried out in public and recorded in the Hansard.
The people should be able to understand why members thought that one proposal was a good idea, while another was thought irrelevant or even a positively bad idea. Yes, there will be differences among you. But that is precisely why you should ensure your deliberations are as full as possible.
Some of your deliberations will even be televised. Journalists will be present. Differences will be aired without insult and abuse – for this is what the Standing Orders of your houses require. And they will be recorded, preserved for posterity – but even more important, for your constituents.
In political theory you are not elected simply to be mouthpieces of your electorates. Nor of your party bosses or leaders. You are elected to use your own knowledge, experience and intelligence, as well as party policy, and public input.
Even if you reject the whole thing and the matter then goes to a referendum for the people to say a global “Yes” or “No”, it is not right – indeed it is a dereliction of your responsibility – to assume that those people will blindly follow their leaders.
And if you do pass the Bill there will be a referendum. It will not be on the whole collection of 78 (or thereabouts) changes to the Constitution.
Indeed it is not yet clear which amendments will need a referendum under Article 255(1). And it seems true that the people will just be asked “Yes” or “No” – as you are being asked. But there will be a debate in the country.
NGOs, the media, probably the churches, taxi drivers and security guards (who spend a great deal of time discussing politics) and wananchi generally will all be dissecting the issues. Surely the voice of the elected lawmakers ought to be available. In your deliberations, all the issues can be aired.
You must surely address every one of those 78 issues of the amendment. And though in the end, a majority will prevail, yours should be the most comprehensive collection of reasoned views on every one of those issues.
Or are you assuming that what you think and say on this important matter is of no value, and will be ignored by the electors? Are you giving up on your collective role of lawmakers – or constitution makers? Is this what we elected you for – to be missing in action on the most important batch of decisions that many of you will ever make in your legislative careers?
Furthermore, it is not just a matter of guidance and hopefully, the wisdom that should be found in the proceedings of the national legislature.
There is also the national value of accountability (as in Article 10). The people of this country have a right to know, with as much detail as possible, why you voted in a particular way. It may even be a factor in their support for you in 2022.
APPROACHING YOUR ROLE
You are being asked to say ‘Accept’ or ‘Reject’” to the whole BBI amendment package. Not to the whole BBI report. Indeed, it is not clear that the BBI report as such will ever come before you.
This is no doubt galling for you. But still, for the reasons given earlier, your task should not just be done but be done properly.
Being done properly means that it is not enough to have just a second reading-type of debate on the broad outline. Every single proposal should come before you and be debated, so that all views can be aired as suggested above.
You need time for this. It is your right to have time for it — and your duty to use the time.
I have previously urged voters to make the effort to know what they will be asked to decide in a referendum. Many will no doubt be surprised by what they are not asked to vote on. I venture to suggest that some MPs and senators will also be surprised.
So much of the BBI report is not about changing the Constitution. Much of it is about how the country can better fulfil the aims of the Constitution.
And some issues were changed by the BBI task force between their first and second report or even between their second report and the final Bill.
On the other hand, it is not just about three new jobs for politicians. There are proposals that will have significant consequences for counties, and the whole system of devolution.
There are proposals for changes to the system of representing the people of this country in Parliament. There are proposals that will have significant impacts on the accountability of members of the national executive to Parliament and the people.
It is desperately important that legislators appreciate the full implications of the decision they are about to make, and that they are not persuaded by considerations of personal benefit or short-term ethnic maneuvering.
It is not enough to read the Explanatory Memorandum. You have all been in Parliament long enough to know that these are often incomplete and superficial.
The very words proposed for the Constitution must be scrutinised – and thought about. I suggest that each of you takes a copy of the Constitution as it is and annotates it with the changes so that you can really appreciate what will happen if you vote “Yes”.
It will be nothing short of a tragedy if our Constitution — the product of many years of study, debate and agitation, adopted by a referendum in 2010 — is amended because those making the decision (in Parliament or in the country) focus only on one or two issues, turning blind eyes to the fact that their vote has many other implications.
Your constituents look forward to your valuable contribution to this important debate.
By JILL COTTRELL GHAI, Director, Katiba Institute
This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2021-03-12-open-letter-to-parliamentarians-on-their-role-in-bbi/