• Punguza Mizigo has focused on reducing the size of Parliament at the national and county levels, the number of independent commissions, wages to public and state officers and reducing the levels of corruption.
• The bottom line is that the Bill fails to conceptualise the cost of government from an evidence base and as a result, misleads decision-makers and voters on the real implication of the proposals.
The campaign dubbed “Punguza Mizigo” seeks to amend the Constitution of Kenya through the popular initiative.
The rallying call of the campaign is fiscal discipline in the management of public resources.
We look at the opportunities and risks that the campaign poses to the social, political and economic development of the country. It is anchored on fiscal discipline by focussing on reducing the size of government, enhancing financial accountability and devolving more resources to the counties. The initiative is a courageous move estimated to take at least 12 months to be completed.
However, we find its proposals weak in terms of process and substance — it is not inclusive enough and it has five main weaknesses. It is populist in nature, formalises tension at the different levels of government, weak on electoral system design, silent on transition and consequential clauses, and fails to address other important reform issues such as the form of government, among others.
As a result, we propose that mechanisms to ensure that a broader, more inclusive and predictable constitutional reform process be put in place. Proposed immediate actions include restarting and pursuing a broad-based and inclusive initiative; enacting referendum legislation; reconstituting the IEBC; and developing a comprehensive constitutional amendment strategy/programme.
CRITIQUE OF PROPOSALS
It could be argued that Punguza Mizigo is a courageous move by a relatively small political party to start a national conversation. Some of the positive proposals that deserve a debate include reducing the number of representatives at parliamentary and county assembly levels; achieving gender parity in the National Assembly; improving the quorum of the Senate; and recognising the wards as the smallest unit of development.
In terms of process, the campaign could have major political ramifications. While at the moment it might be ignored as a non-starter, the danger is that once the timelines start running, other actors will be compelled to participate without any meaningful input.
Time and resources will shift towards the Bill and perhaps change the trajectory of events in the subsequent two years.
MISREPRESENTING COST OF GOVERNMENT
But that does not mean that there are no issues of concern.
The Auditor General observes that the wage bill is an issue that requires intervention at national and county levels through streamlined policies.
“The public concerns about the expensive nature of the Constitution are much the result of increasing wastage of public resources at both levels of government. The growth of the public wage bill is certainly a matter of concern. It raises the need for the government at both levels to undertake austerity measures, including assisting redundant staff at the county and national level to exit the public service. This will ease the cost burden” (Office of the Auditor General 2016, p. v).
On representation, the finding by the Auditor General is that there is overrepresentation compared to other countries. Therefore, the Auditor General recommended a reduction in the size of Parliament. While the reduced size of parliament will have an impact on the cost of government, the rationale for reduction is not cost per se but overrepresentation.
How does one then go about addressing the cost of government? One school of thought is that we reduce the size of government, which begs another question, which sector?
The other school of thought is about reducing the level of corruption or wastage (Institute of Economic Affairs 2015).
Punguza Mizigo has focused on reducing the size of Parliament at the national and county levels, the number of independent commissions, wages to public and state officers and reducing the levels of corruption.
Its memorandum does not show how the proposed changes would actually lead to a lower cost of government. Further, the initiative ignores the findings of the Auditor General inviting policymakers to look at the entire public sector to arrive at the most optimal interventions.
It could be argued that Punguza Mizigo is a courageous move by a relatively small political party to start a national conversation.
In one of the proposed amendments, the bill proposes that the highest-paid public or state officer earns not more than 50 times that of the lowest-paid public servant of state officer.
Assuming the President is the highest paid state officer, it would mean that if he/she earns a maximum salary and allowances of Sh500,000 per month as proposed by Punguza Mizigo, the lowest paid public servant would then earn at least Sh10,000.
Further, in the memorandum, the Bill proposes a minimum salary of Sh500,000 for the President but the same figure is not reflected in the Bill. The implication is that unless there is a binding legal requirement on the Salaries and Remuneration Commission, the proposal means nothing. In fact, SRC might ignore the figure and use an alternative baseline whose effect would be an increase in the cost of wages across the public sector.
The non-inclusion of the stated figures suggests a deliberate effort not to commit to a policy outcome but at the same time mobilising adequate support from voters.
The bottom line is that the Bill fails to conceptualise the cost of government from an evidence base and as a result, misleads decision-makers and voters on the real implication of the proposals.
The best approach would be to revisit the recommendations by the Auditor General and look at practical policy options on how to deal with the current cost of government.
The campaign seeks to appeal to the grassroots with proposals that are crafted on populism. It seems the idea is to create the perception that through the proposed amendments, counties will benefit more in terms of redistribution of resources and power.
Our reflection on the past reform processes shows that before any election, political actors have always initiated reform campaigns as a way of taking hold of their support base or expanding their coalitions.
If the campaign is successful, it will give the Thirdway Alliance the much-needed national outlook before the next election. For example, the Bill promises counties a 35 per cent of revenue allocation from the current 15 per cent.
At a time when there are tensions between the national government and the counties over revenue allocations, this proposal sounds attractive. However, there is no evidence that 35 per cent is the most optimal way for resource allocation. Why not 25 per cent, 45 per cent or even 60 per cent?
How was 35 per cent arrived at?
The best way to understand numbers is to look for what they do not represent (Quottrone 2017). In many cases, numbers have been used to represent the truth even when they are not; and as result stall debate on issues (ibid). And questioning is both an art and science of understanding what is not made visible through numbers.
The Bill seems to create a contestation between the national and county governments. By calling for a reduction of the number of constituencies from the current 290 to 47, new forms of political contestations will emerge.
Further, the call for abolishing nominated seats at the Senate and county assemblies is more of a reaffirmation of a position held by some elected officials at both levels.
For instance, in 2014, a section of Senators and MCAs called for the abolition of nominated seats for ward reps and at the Senate as part of reducing the public wage bill (Shiundu, 2014).
Abolishing nominated seats would be a triumph for the elected MCAs and
senators but only for a short while.
Article 81(b) of the Constitution, which Punguza Mizigo does not propose to change states that “not more than two-thirds of the members of elective public bodies shall be of the same gender”.
In other words, with the proposed changes, questions of equitable representation of both genders in the parliament and county assemblies would still remain. Further, getting rid of the Deputy Governor positions might work in some areas but not others. For instance, counties that have a demographic structure that has 2-3 dominant ethnic groups will tend to negotiate apriori on how seats would be shared in what has come to be known as “negotiated democracy.”
These counties would most likely prefer to retain the Deputy Governor position. This form of power sharing would guarantee some form of political stability, especially in highly volatile areas.
By proposing to have wards as the units of development and removing the Constituency Development Fund, one expects to see increased tensions between the MPs and MCAs.
As a consequent, while the MCAs might vote for such a provision, MPs will not. More tensions are also expected between the National Assembly and the Senate on veto powers. While the Senate would be happy to be the one wielding veto powers, the National Assembly would frustrate such an amendment going through.
What do these tensions mean? In any political system, the design of institutions should make possible constructive tension that facilitates dialogue (Quottrone). On the contrary, the Punguza Mizigo initiative has inbuilt tensions points that are likely to lead to further polarisation and less collaboration in getting the amendments passed.
Lessons from the 2002 - 2010 reform processes show that high-level of political and social fractures are a threat to any reform process (Chiloba 2019).
Kenya must learn from the past and pursue consensus on key reform issues before subjecting them to debates that could only yield unpalatable outcomes for Kenyans.
WEAK ELECTORAL SYSTEM DESIGN
The campaign seeks to simplify the electoral system by complicating it. On national representation, the campaign proposes the creation of constituencies at the county level. That is to say, counties will be multi-member electoral units where the election of the Senator, MP and Woman rep will take place. This looks simple and straightforward.
The Punguza Mizigo campaign presents both opportunities and risks. If the process is pursued logically and meets the legal threshold at key stages, it is projected to take at least 12 months. Based on the analysis, the campaign falls short on the process and substantive rigour in the current political dispensation. On process, there has been limited input from other stakeholders. By implications, other initiatives might arise leading to initiative fatigue.
On the question of substance, the fiscal discipline concept is a welcome idea. However, the initiative fails to address more important issues that other stakeholders might have an interest in such as the system and form of government and the electoral system.
Further, it fails to provide for transition mechanisms on how the country moves from the current to the new order. Even for the issues the Bill attempts to address, it is clear that it lacks novelty, logic and at best causes more confusion than clarity. It is populist and as a result, misrepresents the reality of Kenya’s political system.
It negates the gains made especially on the representation of women, minorities and other marginalised groups. And finally, it totally ignored consequential changes that would make the proposal workable.