Is Thirdway Alliance’s proposal to change the law constitutional?

So the IEBC is satisfied that the Thirdway Alliance’s Punguza Mzigo proposals have 1.2 million valid signatures.

Now Jubilee and Nasa are as taken by surprise as the rest of us by this news. They, of course, have their own, largely self-interested, plans for constitutional change.

County assemblies have 30 days to decide whether to approve the draft Bill to change the Constitution. If 24 counties or more do approve it, then it goes to Parliament.

If Parliament passes it, the Constitution is changed. Even if Parliament does accept the Bill (only an ordinary majority is required), it may be necessary to have a referendum on some of the proposals (because they “relate to” certain important issues). In fact, Thirdway’s proposal includes some that certainly need a referendum – e.g. a change in the term of office of the President. Thirdway proposes a single seven-year term for the President.

If Parliament rejects the Bill, there must be a referendum. In either type of referendum a “Yes” result is only valid if at least 20 per cent of all registered voters in at least half the counties actually vote, and, nationally, at least 50 per cent of those who do vote, vote “Yes”.

WHAT ARE THE COUNTIES SUPPOSED TO SO NOW?

The set of proposals to change the Constitution cunningly include several that are likely to appeal to counties – cunningly because if 24 county assemblies don’t approve, the whole project ends there.

Won’t county assemblies approve of counties getting at least 35 per cent of revenue raised nationally instead of at least 15 per cent? And they will like this, too: “Counties shall adopt and use the ward as the primary unit of accelerated development”. It is not at all clear what this actually means, but you can imagine MCAs’ eyes lighting up at the idea of more Ward Development Fund.

Quite a lot will like the idea of no list members in county assemblies — no gender top-up members and none for persons with disability and other marginalised groups. How well will the existing list members manage to organise to resist this?

Perhaps these provisions explain a rather premature statement from some counties that their Assemblies will support this Bill.

Hang on! It’s not as simple as that.

First, there is a reason the Constitution drafters gave the counties first say: To ensure that the proposals really are a “people’s initiative”. MCAs are probably closer to the voters than most parliamentarians. But they must respect the Constitution — which says county assemblies must “facilitate public participation and involvement” in all its functions.

Second, a heavy responsibility falls on the MCAs. They must not think just “Is this nice for us?” They have the responsibility of asking “Is it good for the country?”

SO ARE THEY GOOD?

On money for counties: No additional functions are transferred to the counties. The national government, responsible for the military, other security services, courts, Parliament, major roads, civil aviation, international ports, major national hospitals and almost all education, among other things, would have to make do with 65 per cent of the national revenue. Is this in the national interest?

Some other proposals are also problematic. The National Assembly is to have just 100 members: two from each county (a man and a woman) plus six nominated. This would produce some very odd results. Lamu with about 250,000 people would have the same representation as Nairobi with its four million, for example.

Then the Director of Public Prosecutions must use reports from the Auditor General in all cases about the theft of public resources and must prosecute public officers against whom there are adverse audit findings. But adverse audit reports do not necessarily indicate crime. A lot of other evidence would have to be accumulated. In fact, though, audit reports are about departments not about individuals. So what exactly is the DPP supposed to do, and what will it achieve? And is it right that so much should hang on the reports of the Auditor General?

Then any corruption case must be tried within 30 days, and any appeal be concluded within 21 days. Any person found guilty of corruption must serve a life sentence.

These are simplistic proposals that ignore how the courts work, and what is practicable. The life sentence rule will just lead to cases being dropped, and courts acquitting people because, even if guilty, they do not think they deserve life imprisonment.

It is not that there is no grain of common sense in some of the proposals. But many are poorly drafted, hard to see the implications of, and show ignorance about how things work.

IS IT A PACKAGE?

It seems that there is no room for the adoption of a modified version of the Bill – they can’t pick and choose. Article 257 seems to envisage a sort of through train – the counties vote on the whole of the proposal, and Parliament does the same. If Parliament rejects there must be a referendum. The whole process must continue once started; maybe even the sponsor cannot withdraw it – this would betray those who signed.

Like counties, other people seem to have been picking on one issue they like. Martha Karua – a shrewd lawyer and politician – likes the idea of 100 MPs, equally divided between men and women. But does she realise that the Senate would have fewer women? If it was on the basis of the 2017 elections, there would be three women only (now there are 21). And how about no “top-up” women on county assemblies? In the Senate, too, some voices are saying they will vote in favour – no doubt they like the idea of the Senate having more power. But have they studied the other provisions, including those trying to limit the pay of legislators? And how about the public participation Senate too must have before deciding?

Under the old Constitution, Parliament could either accept or reject a proposed amendment; it could not change it. True, the Constitution does not now say “all or nothing”. But if Parliament could accept some bits and not others, what then happens to a referendum? Would people be asked something like: “Thirdway proposed a 100 member National Assembly with 47 men, 47 women, and 6 nominated members. Parliament has passed a provision for 100 men and 100 women and 12 nominated. Do you want: (i) the Thirdway proposal, (ii) what Parliament passed or (iii) neither – leaving things as they are? You can imagine what a nightmare that would be. And there might be many such partial adoptions of proposals, and many, many questions for the confused public in a referendum. Yet only one answer “Yes” or “No” is apparently expected in the referendum.

IT’S NOT WHAT WAS INTENDED

Article 257 of the Constitution says: “An amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.”

Thirdway proposes to change 29 Articles of the Constitution. Surely it was not intended that many amendments should be grouped together and require just one vote of support from any member of the public. The Kenya provision is inspired by the Swiss Constitution. In Switzerland, the Constitution and law require that a people’s amendment proposal be focussed and deal with only one topic.

For example, in 2018, a proposal was made (and rejected) to amend the Constitution to provide that international law would not take precedence over the Constitution – a very narrow point. Thirdway has proposed a large number of changes, covering a wide range of types of changes. This does not readily seem to fit the description of “an amendment”.

CONCLUSION

Perhaps we need a law on the procedure for the People’s Initiative. It could try to clarify what is “an amendment” if it can include more than one proposal, whether those voting on the initiative have to take all or none, whether the proposals can be withdrawn.

Meanwhile, have we all been sleepwalking into a constitutional crisis?