President William Ruto and ODM leader Raila Odinga sign the MoU between UDA and ODM at KICC in Nairobi on March 7 /FILE
So the President and his (now) chum, Raila Odinga, have formed a committee of five distinguished people to discuss (and consult the people on) implementing 10 points agreed by “the Principals” in March.
Points 2 to 10 are mostly about implementing the constitution. Inclusivity (Article 10), devolution (Chapter 11 particularly, and Schedule 4), promoting the livelihood of the youth (Article 55), leadership and integrity (Chapter 6), right to peaceful assembly (Article 37) and compensation for victims (topic for a future article), national debt (touched on in various ways including Article 10 mentioning “sustainable development”, corruption (a theme of the constitution), wastage of resources (the aim of Chapter 12 and specifically mentioned in Article 201(d)), the sovereignty of the people (Article 1), the rule of law (Article 10) and constitutionalism (respecting the constitution).
We elect a government (paying them extravagantly) and employ a civil service, Judiciary, etc., who should have been doing all this for the last 12 years. And now five people are to recommend how it should be done?
Nadco
Point 1 is about implementing the 2023 National Dialogue Committee agreement, between Kenya Kwanza and Azimio. Though having some policy issues relevant to the current situation – such as cost of living – a major thrust was about amending the constitution (it includes a constitution amendment bill, and bills to amend other laws). Nadco has introduced nine bills.
Let’s
look at a few of the more substantial of those recommendations. Most are quick
fixes, not well thought through, creating as
many problems as they solve.
A Prime Minister
Prime Ministers vary greatly – they include the heads of government in India, Australia, Canada the UK and various European countries.
Nadco’s
Bill would not put the proposed PM in Parliament so he/she could not be – like
the Tanzanian or Ugandan PM – “Leader
of Government business” in the Legislature.
Nadco’s proposed PM would assist the president and deputy in coordination, supervision and implementation of government programmes, and “coordinate government’s legislative agenda across departments”. The latter is obscure. The first gives the PM very little real authority. This (designed for Raila?) would be probably the weakest “prime ministerial” position anywhere.
It is fundamentally like the “Prime Cabinet Secretary” position held by Musalia Mudavadi: an opportunity for a president to give lucrative recognition to a politician who has brought substantial benefits in terms of votes. No amendment to Article 152 on the makeup of the Cabinet is proposed, so could a “Prime Minister” be a member?
Leader of the Opposition
Another odd idea is recreating the office of Leader of the Opposition (LOO). The Bill says the LOO would be leader of the second largest party/coalition in the National Assembly. It is not entirely clear whether the LOO (plus two deputies – chosen how and doing what?) would come from Parliament or if not (maybe because they vied for the presidency) would come into Parliament after appointment.
The report says Parliament should elaborate the LOO role, and include providing alternative policy agendas, fostering cooperation between government and opposition and promoting good governance. And what would be the role of the Minority leader?
The
Bill would not make the LOO a “state officer”. So the Salaries and Remuneration Commission couldn’t fix their salary. Who would?
Maybe a better approach would allow people to stand for election to the National Assembly as well as president, so if a presidential loser wins a parliamentary seat, they have a job and salary to fall back on, if that is the real concern.
Equitable share
At least 15 per cent of the revenue raised nationally (in the most recent year for which the National Assembly has approved the audited accounts) must be allocated to counties annually. Raila and others have suggested the figure should be 35 per cent or even 45 per cent. The Bill would raise it to 20 per cent, yet in no year has that share gone below 20 per cent so this change would do nothing, unless things change radically.
Disobeying court orders
Nadco proposed a constitutional provision that all state and public officers must obey court orders, and empower courts to impose a penalty for disobedience. But this is already the law, including penalties for contempt of court. What is needed is for the other parties and courts to ensure that orders are directed at the right people, and there is persistence in applying the existing penalties.
If the offender is the president, he cannot be penalised in this way, at least while in office. Walter Khobe, a legal counsel in the Office of the Chief Justice, has pointed out that the Ghanaian constitution makes such disobedience a “high crime” with a penalty of imprisonment without fine, and exclusion from office for 10 years!
Elections
Having six elections on one day is unusual and very challenging. Nadco proposed the IEBC “consider” a change in the constitution on this issue. Clearly the constitution drafters set presidential and parliamentary elections on the same day to minimise the risk of conflicts.
Should we have presidential and parliamentary elections (four) on one day and county elections (governors and MCAs) on another?
The Bill proposed extending Senate’s term to seven years. This is supposed to make the Senate more independent and strengthen its role in lawmaking – presumably by virtue of its accumulated experience. It is not clear that this makes any particular sense here. And would it be desirable to have Senate of a different political persuasion from the National Assembly?
Gender in Parliament
Nadco did not include the gender issue in their Bill, leaving the task to a Working Group appointed by government. However, Nadco put forward its own ideas. First, use the county assembly approach: extra women from party lists, but giving preference to candidates who stood for election for a constituency, and within that, those who received the most votes.
The Working Group took this approach but without the second part about preference for certain candidates.
Alternatively, Nadco suggested doubling the county women representatives, plus top-up if necessary (in fact, it might well not be necessary). But 94 women reps? Their roles are already unclear. And their existence already distorts the relationship between votes and seats in Parliament. The Working Group did not take this approach.
Party hopping
Nadco wanted procedures for resigning or being sacked from a political party (already in the Political Parties Act) included in the constitution. The constitution, it says, should provide that, once a person leaves a party, he or she loses any post, elected or appointed, which they hold by virtue of that party membership.
How easy would it be to prove that someone holding an appointed position does so by virtue of their party membership? People would argue, “I was appointed for my personal qualities not because I was a member of a certain party.”
CDF, etc
Nadco wanted the National Government Constituency Development Fund, the women reps’ Affirmative Act Fund and the even odder Senate Oversight Fund to be included in the constitution to protect them from the courts – the Supreme Court having decided the first is unconstitutional.
Finally
Is the Committee of Five to choose between alternatives in the Nadco proposals, or even to amend them, perhaps taking account of other existing bills, proposals and comments? For example, the Bill about the CDF currently pitting the two Houses against each other. How about the public rejection of a recent Bill seeking to give all parliamentarians, and the president, seven-year terms? And what about Senate’s demand for more powers? Are they to take account of the critical comments on the Nadco Bill in Parliament? And how about Raila’s recent rejection of constitutionalising the CDF, etc.?
The committee has a deadline of March 2026 – probably not time enough to amend the constitution before the 2027 election. Is this – as committees often seem to be – a way of looking as though something is being done but not really doing anything?
