Last week I received a call from one of the four leading politicians of our time. He wanted to know if in my interactions with the people, I have found out whether the masses really want a referendum. And if so, whether they know the issues that should be decided through a plebiscite.
My answer to both questions was an emphatic Yes! Generally, Kenyans want to determine some sticking issues of governance that have engulfed the nation in raging debates. But what is a referendum?
It is the process of making a decision through a popular vote by all citizens on matters of national interest and importance. Once such decisions are made through a simple majority win, the necessary legislations are made to secure the people’s will. In my discussions with citizens on the on referendum debate, three issues come out as the matters that require canvassing and eventual vote. However, before delving into these issues, it would be important to discuss the small matter of timing. I view timing as small matter though not unimportant. Timing is crucial because it would influence greatly the environment of the referendum, which will eventually impact on citizens’ approach.
All factors held constant, Kenyans will go to the polls in August 2022. That means that a referendum anytime near 2022 will be unduly influenced by the expectations of the general election. It may turn out to be a pre-match and lose out on the merits of questions to answer. We have done one year after the last elections in relative calmness courtesy of the handshake and we should strive to maintain the same. Since referendum requires extensive preparations, 2019 is a bit too close for such huge undertaking. Therefore, the most ideal time to hold the referendum is mid-2020. It is far away enough from the general elections to escape the polarization of the electoral mood. And yet it is not too soon to provide adequate time for the necessary logistical preparations. The budgetary considerations of the opinion poll should be factored in the next budget of 2019-20 financial estimates.
Three issues have emerged to deserve determination in a referendum. They revolve around the Executive, representation and devolution. On the Executive, Kenyans have voiced concern on its exclusive nature. There are concerns that, as presently prescribed in the Constitution, it does not resonate well with the historical experiences of the nation. It also creates confusion in its implementation. However, the main challenge seems to be the fusion of the functions of the Executive with those of the state. The President is today the head of State and Executive as the government.
The confusion arises when the occupant exercises state roles while at the same time discharging the government responsibilities. The current presidential system is model borrowed from the US, but missed on the federal premise. The states in the US act as strong checks on the presidency, which our counties, as presently constituted, cannot execute.
The question on the Executive is major challenge, which must be approached with utmost sobriety. Kenyans should be allowed to debate it exhaustively and determine whether they want a presidential or a parliamentary system. In the circumstances, a decision to separate the functions of state from those of the government must be deliberately made. Scholars of political science must help citizens understand that the theory of three arms of government is a fallacy. It should be known, and accurately so, that Executive, parliament and the Judiciary are the three arms of state not government. For stability, the head of State should never be same as head of Executive.
If this argument is taken to its logical conclusion, then Kenyans will have created a head of State separate from the head of Executive. The argument of a ceremonial head of State is illogical since the powers and responsibilities will be stipulated in the Constitution.
The question of representation should be organised around the size and role of the Senate. There have been widespread concerns about cost of representation, which is the essence liberal democracy. Citizens exercise their sovereign right to self-governance through elected representatives. However, it has been considered that Kenyans have far too many representatives in the National Assembly and the Senate. The burden of high cost of living has been partly blamed on the bloated size of Parliament.
The boundary review of 2012 increased the number of constituencies from 220 to 390. At the same time, the pay package increased by almost three times, making the country have the highest paid legislators comparatively worldwide. A question should framed to determine whether Kenyans want the size of their parliament reduced and to what extent. Should the number of constituencies be fixed or allowed to correspond to population growth? What do other countries have? Tied with this would be the place of senate in the representation.
Opinion is currently divided or the role and relevance of the Senate. It has been established as a junior partner of the National Assembly. Why did we establish a Senate that is not consistent with world best practices? If we must continue with this House, how should it be structured? It has been suggested in some quarters that the post of county woman representative be abolished. Further that each of the 47 counties should elect two members, one female and the other male, to the Senate. Senate should have legislative roles and act as a check to the National Assembly and the presidency as the head of State.
The third important issue is devolution, the main plank of the 2010 constitution. It has brought joy and anguish to many Kenyans in almost equal measure. The counties of Makueni and Kakamega are today being celebrated as success stories of devolution. The residents of these counties have every reason to celebrate devolution and put every effort to secure it. Other counties
such as Homa Bay and Busia have been fingered as bastions of corruption and ineptitude.
Residents are more used to fistfights in the assemblies than service delivery. They have nothing to celebrate in devolution, and they consider it a burden rather than source of joy. Then there are those in the middle of the road — counties that have nothing significant to show neither serious underperformance to lament about. Kenyans will have to address the shortcomings of devolution so that it truly serves its original intention. The county executives have run roughshod over the county assemblies. This has rendered the oversight role of the assemblies nugatory. How can this be cured in the laws? Should we retain the counties but introduce a third tier governance level at the region? Would this third tier level in line with the regional economic blocks being launched make devolution more cost effective and economically viable?
The law should be clear on the relationship lines between the national and devolved governments. It may useful to establish a national council headed and chaired by the President as head of state. The national council would comprise the Prime Minister as head of government or the Executive, the Chief Justice as head of Judiciary, the speaker as head of the legislature and the chair of Council of Governors as the representative of devolved governance. In attendance should be the Chief of Defence Forces as head of the armed forces. As can be seen, such president as head of state cannot be ceremonial. This arrangement would help cure the perennial challenge that the nation has to face every electoral cycle, where the head of state is also a candidate.
As head of state, the IEBC, Chief Justice and Speaker report to him. Yet as a candidate in a presidential contest, the electoral agency and the Chief Justice might be called upon to arbitrate an electoral dispute. Further, as head of government, the current President is expected to be at par with the Chief Justice and Speaker. This relationship is untenable where the holder of the office of state is the same as the head of government as the executive.
Kanyadudi is a political and public policy analyst