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Katiba Institute Article

Why reintroducing BBI-like changes after 2022 will be complicated

Why reintroducing BBI-like changes after 2022 will be complicated

This piece appears on October 22 – 291 days before the election. But it feels as though the election is much closer. How exhausted – and for many people how turned off – we shall all be by Election Day if this frenzy continues.

PREMATURE ELECTIONEERING

Some things that cause some concern do not seem to have a constitutional – or even a statutory – dimension.

One is politicking in church. The Elections Act – not the Constitution – says that during the campaign period, candidates must “refrain from campaigning in places of worship or during burial ceremonies”.

Of course no-one is officially a candidate until after registration date. And the official campaign period will probably begin about two months before the general election.

Does this rule make sense? Isn’t what happens now — as people jostle for position, and to decide if they will be candidates or just supporters of candidates — just as important in determining who will become president, senator, governor or MP as what happens in June and July next year? If it is wrong to campaign in church then, why not now?

The media tell us that there are a lot of absentee MPs. What are they doing? Campaigning with the Deputy President according to the newspapers.

Why are we paying them? Their job descriptions are as MPs, making law for the good of the nation, holding government to account, debating matters of national interest. Not gallivanting around the country fighting the next election (having decided that William Ruto is the best bet for them, which requires that they ingratiate themselves with him to ensure they can stand for election and get elected, as they hope, on his coat-tails).

Is there anything that can be done about this?

The Constitution does say that an MP (or senator) loses their seat if they are absent from eight sittings of their House without permission in writing from the Speaker, and cannot offer a satisfactory explanation (Article 103(1)(b)).

MPs are skilled at somehow getting their signatures to appear, indicating that they attended even if they did not (very useful if you are claiming a sitting allowance). But it is really time that Parliament established that presence means actually being there not just signing.

There is the provision that got Senator Isaac Mwaura removed from the Senate: Resigning from the party for which one was elected, or being deemed to have resigned. And the Political Parties Act says that one is treated as having resigned if one forms or joins in forming another political party, joins another party, or in any way publicly advocating the formation of another party, or promoting the ideology, interests or policies of another outfit.

UDA is a registered political party. No doubt sitting MPs and senators have been careful not to register as members.

Who pays for the gallivanting?

The Constitution says that a political party must not use public resources to promote its interests or its candidates in elections unless the Constitution an Act of Parliament allows.

The Elections Act says that public resources include (which means this is not a complete list) vehicles or equipment or premises owned or occupied/used by a government institution. Surely this is too narrow. The ultimate resource is money!

By the way, there is still time to recall an MP.

It may be hard to nail these people – but the violations of the spirit of the Constitution, at least, are clear.

Another angle to what is going on relates to what they will do once elected (though statements are probably for the most part empty promises).

All this is happening in the aftermath of the BBI debacle.  Some have said that amending the Constitution in accordance with the BBI Amendment Bill should be a priority for the new government (on the assumption that will be Raila Odinga’s).

You will remember that the real interest of politicians tended to be in jobs — most notably the Prime Minister and two deputies. There was also the idea that the best loser in the presidential election race should be leader of the opposition. Then there were the 70 new constituencies (with their associated NG-CDFs) to go to certain favoured areas (such as Kiambu to get six). And MPs were to be eligible to be Cabinet secretaries (ministers).

Clearly the scheme was to parcel out the plum jobs to allies in a grand coalition – thus removing some key players from the presidential race but putting them in a good position to become Prime Minister (or deputy).

But this option is not there. The ambitions for office will stand for President, not Parliament.  And those who lose will as now be jobless.

One thing that became clear in the High Court is that initiating a change in the Constitution is not formally the job of the President. But if the President has strong support in the National Assembly — as is likely but not guaranteed — he (almost certainly he) could probably ensure his people introduce amendments he is keen on.

But what would any President be keen on? Having a prime minister and two deputies? Why would any president want that?  Having the defeated presidential candidate as leader of the opposition? Why would any president want that? Why would a president-supporting National Assembly want that?

It is not entirely clear that MPs would want more constituencies – at least if it meant they would have to share the NG-CDF.

MPs can take the initiative to amend the Constitution. Maybe they would want to be eligible to be Cabinet secretaries.  Maybe to create a prime minister and sidekicks from among their number.

If such an amendment was passed, the President would have no choice but to sign. But the amendment would pass Parliament only if at least two-thirds of each House voted for it twice. In the current Parliament, the National Assembly has never managed to raise two-thirds to defeat a presidential objection to a law they have passed.

A President might be happy for Parliament to pass an amendment to make it possible to appoint Ministers from Parliament – at least he would be able to buy some support. But not much because the Cabinet cannot have more than 22 Cabinet secretaries – not very many out of say 180 MPs, which would be a bare majority.

And would the President or Parliament, once elected, really want to increase the counties’ share of national revenue?

The courts have indicated that some changes cannot be made at all by the ordinary processes of a constitutional amendment. Like specifying which counties new constituencies would be in – because it takes away the job of the IEBC.

The same might be true of changing the system of government to something more like a parliamentary system (having a prime minister and ministers from Parliament).

If so, such changes would need a full-blown constitutional review process, with public participation, drafts, a referendum and so on. And some years, no doubt.

And the Constitution says that changes in the law that benefit MPs financially will not be effective until after the next election. Why should this not apply to changing the Constitution so that some work – and earn – as ministers?

When a president is serving his first term, there is an expectation that he will be re-elected. No incumbent president has ever lost an election in Kenya. Sitting MPS do not want to antagonise him. It is no coincidence that the BBI came in Uhuru’s second term.

If – remarkably – major constitutional changes of the BBI sort were done in the aftermath of the 2022 election, bringing them into effect immediately would, as suggested here, be complicated.

The BBI assumed, as suggested earlier, a complete plan, including who was to stand for Parliament with a view to becoming PM or CS.  Nor would it be possible to have an early election after the constitutional amendment.

Major constitutional change is most likely when incumbents are about to leave office. In 10 years’ time, maybe?

By JILL COTTRELL GHAI,
Director, Katiba Institute
This article was first published by The Star Newspaper on 24th October, 2021