CONSTITUTION CHANGE DEBATE

Amend law to ensure peace, equity and reduce cost of governance

Constitutions are not documents cast in stone but are rather supposed to be responsive to changing environments and needs

In Summary

• Clearly, Kenya is not homogeneous enough to sustain a presidential system of government.

• To enhance predictability and stability, we should limit parties to only three.

Signature collection books for the 'Punduza Mzigo' referendum campaign
Signature collection books for the 'Punduza Mzigo' referendum campaign
Image: FILE

During the campaign for the 2010 Constitution, the opposing side pointed out a number of areas that needed to be changed.

Indeed, even those who supported it accepted that in time, it would be necessary to make certain amendments. Constitutions are not documents cast in stone but are rather supposed to be responsive to changing environments and needs.

A lot has been said about the reasons to amend the 2010 Constitution, and those who do not wish to see changes have primarily objected to the idea of changing it for the purposes of creating positions for individuals.

I would concur that this is no reason to make any changes at all. However, I see three objectives that should be attained through a constitutional amendment that necessitates a referendum.

 
 

SUSTAINABLE PEACE

One is to create sustainable peace and a predictable political environment.

To do this, we need to ask ourselves why that peace evades us. It appears to me that political conflicts in Kenya have been largely associated with presidential elections.

Since the removal of Section 2A in 1992, every five years, I have seen Kenyans lose lives, suffer economic downfalls, and cause internal refugees in most presidential elections.

Clearly, Kenya is not homogeneous enough to sustain a presidential system of government. I would, therefore, propose a change from this system to a county-based parliamentary system of government.

Simply put, Kenyans would vote for a party of their choice and the largest party or coalition forms the government, which is led by a Prime Minister.

In further pursuit of sustainable peace, we should avoid a winner-take-all scenario. I would, therefore, propose that we have a ceremonial President (Indian system) elected by both houses of Parliament.

The Executive would, therefore, comprise of the President, the Deputy President, the Prime Minister and the Deputy Prime Minister.

The Prime Minister should have the leeway to choose a Cabinet from within and out of Parliament. A parliamentarian selected would be replaced via the party list by the relevant political entity.

Members of the Cabinet — whether selected in or out of Parliament — would be ex-official members of both Houses. This is necessary for direct responses to parliamentary questions. There should be an equivalent number of assistant ministers.

FAIRNESS AND EQUITY

 
 

The second objective should be an institutionalisation of fairness and equity of votes, otherwise known as one person, one vote.

We have regions where legislators represent huge numbers of voters while in others, very few voters. This is totally against the democratic practice of one man, one vote. Therefore, to address this shortcoming, I propose that the county-based proportional representation does away with constituencies.

Constituency creation largely results in gerrymandering and unfairness. Constituencies are sometimes designed with the end result in mind either to favour a certain party or an individual. Legislators in the new dispensation should be facilitators of a conducive environment for development.

Resources for development should be allocated to county governments and MPs should oversight the national and county governments and legislate.

Party based politics would also reduce corruption during elections. In other words, votes cast at counties should be directly proportional to MPs allocated to those counties.

One of the best examples of this case is South Africa, where parties have seats almost proportional to the votes cast for them. Variations can be introduced for a better balance of party representation.

For instance, where a party attains more than 80 per cent of the votes cast in a county, a cap could be made within the party of 80 per cent allocation so that the balance can be used to balance party representation elsewhere.

To enhance predictability and stability, we should limit parties to only three. This can be done after the first election by simply picking the most popular three and allowing the smaller parties to join the major ones.

While this may seem undemocratic, not limiting parties creates instability and problems of forming a government. A good example is Thailand and Italy. In short, the government should only finance the largest three parties.

PUNGUZA MIZIGO

The third objective should be the reduction of cost of governance (Punguza Mizigo).

To eliminate the cost of governance, I propose the elimination of all nominations in Parliament and in county assemblies. All equity desired may it be gender, youth, people living with disabilities or any other affirmative action should be presented within the allocated party list.

We should have no more than 253 MPs and a total of 47 senators. The role of the Senate should be enhanced to keep up with best practice and avoid parliamentary dictatorship, which is quite possible if we have only one House.

The Senate, for instance, should vet all executive appointments. The removal of all nominations will reduce the total MPs and consequently reduce the cost of representation.

Added to this will be the elimination of the cost of presidential elections, especially when there is a runoff.

Additional costs will be saved since there will be no by-elections because in the event of a legislator leaving for whatever reason, then the party holding the seat will simply nominate the second person on the party list.

In order for us to succeed in attaining these three objectives, we must improve the electoral process.

Parties should be largely based on philosophies and ideologies and must have proper internal democracy create party lists. In time, the focus on parties, rather than individuals, will develop issue-based politics. Currently, parties are simply buses to take us to a political position.

The supervision or such party activities should be done by the IEBC, starting at the county level. The IEBC should, therefore, be devolved to the counties and the qualifications demanded the commissioners be duplicated.

The county IEBC board should only exist for one and a half years ie a year before elections and six months after elections. Thereafter, the county IEBC boards should be dissolved and only the national board left to deal with arising issues.

On the county governments, I would propose that we maintain the 47 counties as they are. I would further propose that we change the revenue sharing formula to 40 per cent for the counties and 60 per cent for the national government but allocate more functions to the devolved units such as primary education.

To encourage the creation of self-generated resources by the counties, we should expand the tax base of counties to include even the personal incomes of individuals living within counties and businesses.

Nairobi county, in my view, should be governed by the national government but split into boroughs with elected representatives. The elections for county governments should be a duplication of the national ones i.e. the governor will be the county leader of the party with the largest majority in the county assembly, while the senator will be the first person on the Senate party list of the largest party in the county.

TIMING

To domesticate these constitutional amendments efficiently and effectively, and to have enough time for civic education, it is important that the referendum takes place no later than 2020.

Further, it is important that there to be clarity on the objectives of the referendum because naysayers are already poisoning the electorate, saying it is just for creating positions for individuals.

It should be made clear that we want to create sustainable peace, fairness and equity, and reduce the cost of governance. These are good reasons.

Finally, I would emphasize that we move forward through the path of least resistance by addressing key issues that we largely agree on and deal with more divisive issues in further amendments to come, after all Kenya will outlive our current generation and there lies our hope.


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