Despite all the “referendum talk” interactions with Kenyans about what really worries them about the way the country is going, often lead somewhere else.
Even if they conclude “We need to change the Constitution to do something about this” (perhaps not so surprising if they are interacting with Katiba Institute), second thoughts may lead to another conclusion,
To move from the general to the specific, here are a few examples of issues recently raised with Katiba Institute.
NEPOTISM
“Prominent officials tend to appoint their relatives to posts”.
While it is not necessarily wrong to appoint relatives — at least if they are properly qualified, and appointed as the result of a well-conducted process uninfluenced by a relative already in office — it still tends to raise suspicions.
The Constitution does have something to say about it: Article 73 says that the principle of leadership include “ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices”.
People tend to expect “the Constitution to do something about it”. But the Constitution does not do anything. It is not some sort of fierce guard dog that can detect by a sense of smell that a person has been guilty of nepotism (or favouritism, other improper motives or corrupt practice) and will gobble that person up.
There are things that can be done to such a person (impeach a governor, recall an MP, sentence a corrupt person, dismiss a person in the public service, including a Cabinet Secretary or a county executive member).
But, between an offence and punishment, the intervention of human beings is needed. Someone must suspect, investigate, collect evidence, report to the authority with the power to take action (not necessarily in this order).
Serious breaches such as repeated, or the most blatant, nepotism can justify impeachment, and no doubt dismissal, though they may not be a crime. The Court of Appeal has told us this.
UNREASONABLE TAXES
“This county imposes excessive taxes”.
A particular complaint might be about taxing the burying of bodies or transporting produce, or boda-bodas.
The Constitution does say something about excessive taxes: “The burden of taxation shall be shared fairly”.
Practically speaking, this may be hard to enforce or even to fully understand. But a constitution cannot say in detail what taxes and what amounts can be raised. This is one of the central questions to be decided by any government — in a democratic way — and cannot be fixed in advance by a constitution.
But – in fact, can counties tax boda-bodas, death or transporting goods? They can tax land (rates) and entertainment, and otherwise only what Parliament allows, and Parliament has not allowed any other.
In fact, the “cess” imposed by some counties on agricultural produce has been held unconstitutional by courts. Again – if people do not detect the unconstitutionality and complain about it (or go to court about it) counties may get away with illegal taxes.
Counties can charge for services, and for approvals that are necessary for a regulatory function that they have under Schedule Four of the Constitution.
But if someone has to pay something in return for no service, and if the payment is not connected to regulating an activity but is only about raising money for the county, this is a tax, not a charge.
DIVISION OF REVENUE BILL SHAMBLES
“It took far too long to resolve the stand-off about the share of the counties – is this a problem with the Constitution?”
There is a series of decision-making processes involved. First, the Commission on Revenue Allocation makes recommendations about the basis for the equitable sharing of revenue.
This is its main function according to the Constitution. The Commission is supposed to be made up of people with “extensive professional experience in financial and economic matters” — experts in other words.
Every year, there is a budget and a law giving the actual amount to be allocated (the CRA must comment). This year, CRA recommended Sh335.70 billion for the counties but Treasury wanted this to be Sh310 billion.
The Senate (guardian of the interests of county governments according to the Constitution) wanted the CRA recommendation adopted.
Finally, they were persuaded (under presidential pressure it seems) to accept a compromise of Sh316 billion. This followed the failure of the mediation efforts, including a joint committee of the two Houses, to reach a compromise. Maybe, some pig-headedness on all sides is involved.
Could the Constitution do something about this?
It could have made the CRA recommendations mandatory – but could we be sure that this would have been acceptable? People also sometimes complain about commissions.
The Constitution opted to leave the final decision to the democratic process. But do our politicians have the necessary democratic orientation? But if the Constitution took the choice away from them when would they ever develop this orientation?
By the way, Treasury deducts from the anticipated national revenue various matters that it gives priority to and calls them “national interest” and shares the rest – thus reducing the county overall share. This is clearly unconstitutional.
And the National Assembly seems deliberate to drag its feet in considering the Auditor General’s annual reports on public expenditure (the National Assembly is several years behind).
Why? Maybe because each year public revenue tends to rise, and the county share should also rise – but the minimum percentage of national revenue that counties are to get is based on the last National Assembly approved national accounts. In other words, the delay benefits the national level of government.
If the Treasury and the MPs did their jobs properly, counties would get more cash, and unreasoned calls for “more money to counties” would lose their appeal.
PARLIAMENTARY REVENGE
“It is wrong that the MPs should be able to take revenge on the Salaries and Remuneration Commission for insisting that they abide by the constitutional rules about who fixes their allowances”.
Could the Constitution have avoided this? First, we should note that MPs can’t cut the salaries of Commissioners – these are protected. Other commission expenses are not.
Maybe the makers of the Constitution could anticipate that frustrated MPs might take revenge on bodies that offend then (like the SRC and the Judiciary) – perhaps by permitting cuts only if all public agencies are to be cut, to take just one possibility.
How depressing that we think they should have anticipated that the MPs might not only disregard the Constitution but might then behave like spoiled schoolchildren!
Again, to fix things very rigidly in a constitution is to tie the hands of the future elected legislators. Yes, constitutions sometimes have to do that, especially to protect human rights.
But MPs are supposed to represent the citizens. Citizens must seek information – which of their elected representatives voted for the revenge attacks? Why vote for them next time?
By the way, it seems that the MPs are being reminded of their responsibilities by the President who has refused to sign the Bill.
CONCLUSION
In short, the Constitution very often does say something about the behaviour that the public tend to deplore. It is usually hard to see how the situation could be improved by amending the Constitution, without undermining the democratic process, which means undermining the rights of the people also.
Improvement will only come if elected and appointed officers (servants of the nation) take seriously what they are supposed to do and how. And they will only do that if other people also take these things seriously and expect compliance with the Constitution. That also means using the tools the Constitution, and the democratic process, provide for controlling misbehaviour.
The greatest of the checks and balances in the Constitution are found in the self-interest of others. And that includes the self-interest of the people, who must understand where their interests lie and insist that all authority is exercised in the public interest, as the Constitution requires.
Asking to amend the Constitution is usually not addressing the real cause of the problems.
