• Some of the ideas are good, many amount to little more than saying “let’s do what the Constitution – and our consciences – already require." Most are half-baked.
• In truth, it all seems to be a smoke-screen, trying to pretend it is about something other than changing the Constitution for the benefit of a few.
The Bomas of Kenya is a place where Kenyans and tourists can learn about the country’s culture, especially traditional housing, and dances. It is a cultural centre in Nairobi.
In 2013 and 2017, it was the base for the IEBC during the election process.
But if you are younger than about 30 years, you may find a bit mystifying the references to Bomas that sometimes lurk in the background in the discussions about the Building Bridges Initiative. This is not just because the BBI report was launched at the Bomas of Kenya — a rather symbolic venue.
Bomas, with its central auditorium holding up to 3,000 people, was the setting for the National Constitutional Conference from 2004 to 05. That conference was usually referred to as “Bomas”.
And the document — the draft of a new Constitution — that the conference worked on, and adopted early in 2004, is commonly called the “Bomas draft”. It has often figured in discussions about constitutional changes that seem to lie at the heart of the BBI, particularly if the topic is what Raila Odinga wants out of the process.
The Standard said last year: “The former Prime Minister was a strong proponent of the Bomas Draft in 2005, which had proposed a governance system with a president, a deputy president and a prime minister, which he still insists, was the best for the country.
"If we had adopted the Bomas Draft, we would not be having these problems. We need to debate on the matter now to create an informed citizenry,’ he said"
And in 2018 the Nation said: “The four Nasa principals Monday closed ranks to set the ground for constitutional change around the Bomas Draft.”
SYSTEM OF GOVERNMENT
Bomas recommended a parliamentary system of government. The media tend to focus on the existence of a “Prime Minister.”And this office is at the heart of a parliamentary system: The PM is the head of government because he or she is usually the head of the largest party in the National Assembly (in Kenya’s case), or if not, is supported by the majority of MPs.
In most parliamentary systems, the ministers are also MPs, chosen by the PM from among his or her supporters. In some countries, some ministers can be from outside Parliament, and in France (not a fully parliamentary system) MPs who become ministers have to give up their seats while they serve as ministers. Bomas proposed that they be MPs, rejecting the recommendations of the CKRC (Constitution of Kenya Review Commission) that some must come from outside.
There is still usually a President (or a king or queen) in most parliamentary systems. And generally, in modern times, that person has very few real powers. The hope is that the head of state will be a national unifying force, a symbol of the nation, be involved in ceremonial matters, and perhaps be able to offer quiet advice to the PM. Often the President is chosen by Parliament (and thus likely to be of the same party as the PM at least when chosen — because the President’s term is not necessarily the same as the PM’s, this may change).
BOMAS PRESIDENT AND PRIME MINISTER
Although Bomas opted for the parliamentary system, the role of the President was different from that normally found in a parliamentary system. The President was to be elected directly by the people (this is like the Irish Constitution, where the President has few powers but a certain status and moral authority because of being elected by the people and not chosen by a government).
A primary duty of the Bomas President was as a symbol of national unity (without membership of any political party), with the responsibility to safeguard the sovereignty of the country, promote and respect the diversity of the people and communities, protect human rights and safeguard the Constitution.
The President was to address the opening of each newly elected Parliament, and in consultation with the PM, to report to the House (thus to the people), on all the measures taken to achieve the realisation of national values and goals.
There are some other functions that required the approval of the Prime Minister/Cabinet and yet others that require joint action (for example international relations, securing for courts and other independent institutions “their independence, impartiality, dignity, accessibility and effectiveness as contemplated in the Constitution”. The President was to ensure that public participation requirements concerning the enactment of legislation had been observed by Parliament.
But the President had little power to compel the government to do anything and no role in policy or day-to-day government.
The President would appoint the leader of the largest party in the National Assembly as Prime Minister. If he or she was not acceptable to the Assembly, the President would propose the leader of the second-largest party, then his/her own nominee, and if that also failed also, the House would have forwarded its own candidate. If the Assembly could not agree on any candidate, there would have been a fresh election.
The Prime Minister presided over the Cabinet (which was formally appointed by the President on the recommendation of the Prime Minister from among parliamentarians) and co-ordinated the work of ministries and preparation of legislation. Ministers were in charge of their ministries and could be removed either by a vote of no-confidence by the Assembly or by the Prime Minister.
The Prime Minister was to be responsible to Parliament, meaning that he or she could not be dismissed by the President, but could be removed by Parliament. The President, or any MP with the support of one-third of the members, could propose the removal of the Prime Minister. The actual removal of the Prime Minister required 50 per cent of the votes in support.
Because the PM (and the ministers) would be from Parliament, probably with long membership of Parliament — and because of the tradition of parliamentary questions to PM and Ministers — the assumption is that the government would be in tune with Parliament, the elected representatives of the people.
There is also a hope in parliamentary systems that the choice of a PM is less about the individual’s personality, and less about tribe, and more about policies and competence. This may be a vain hope in a country such as Kenya.
The very title “Prime Minister” indicates something important: That government is the work of the Cabinet, though led by the PM. It is supposed to be a more collective affair.
All this was abandoned when the Parliamentary Committee looking at the second draft by the Committee of Experts in 2010 decided to shift to a presidential system. Raila’s party supported that shift.
Yash Ghai had a vision of a country building from the bottom. Below the national government, there would be four levels: Village, location, district, and province (the village symbolic of people’s sovereignty). Village and district councils would be directly elected by the people, and at the district level, a governor would be also directly elected.
Location councils would be composed of members of village councils. Districts would be the main level of government, partly because some provinces were so large that their headquarters were as remote from most people as Nairobi itself, and also because of concerns around identity and potential conflict. This was all in the CKRC draft that went to Bomas.
Much discussion at Bomas centred on having larger regional units as the principal level of devolution: Perhaps 10, 13, 18 or even 27 units. They settled on 14 in February 2004.
The regions were to “co-ordinate the implementation, within the districts forming the region, of programmes and projects that extend across two or more districts of the region”. On these issues, they would have the power to make law that would prevail over district laws.
Each region would have had an assembly composed of four delegates from each district, elected by the district council but not members of the district council. The regional executive included a premier, elected by all the district councils, with other members chosen by the premier and approved by the regional assembly.
This obviously would have been very expensive: Seventy districts and four Nairobi boroughs, plus 14 regions, and locational government (elected by the residents) too. However, although this was not spelled out, there was still an assumption that assemblies and councils would be part-time, as the old local authorities.
In fact, Yash Ghai had tried to persuade Bomas to modify the scheme a bit. He wrote in early 2004: “This produces somewhat confused lines of authority as well as adding greatly to the cost of devolution.”
Ghai proposed about 20 units at the intermediate level. This would have enabled greater participation of the people than would be possible in a smaller number of large units. The smaller regions would be less threatening to national unity and more protective of the interests of minorities.
This shows that blind acceptance of the Bomas draft would be unwise. In fact, the Bomas draft anticipated that a lot of details would still be worked out. But how easy would it be now to change the system to introduce an intermediate level of government? Or if we did so, could that be accompanied by a reduction in the powers of the counties — or in their extravagance and the pretensions to the grandeur of the governors?
That Parliamentary committee did not only change a parliamentary system to a presidential one (thus laying the foundation for much of our present troubles) but also made various other changes (to a document still based largely on the Bomas draft). Some of these the Committee of Experts resisted and rejected, but some it felt obliged to accept. Here are a few:
They tried to weaken the Bill of Rights in various ways, including removing the right of access to information and to fair administrative action (the CoE resisted most but not all of these)
They tried to weaken Chapter Six on leadership, integrity and accountability and did succeed in removing the requirement for state officers to declare their wealth (this is now in ordinary law, not the Constitution).
They put the two-thirds gender rule into Article 81 about principles of fair elections — one of the issues that have weakened the Constitution on this point.
They removed the specific reference to the right of prisoners and those in hospital to vote, and are responsible for the bar on persons declared of unsound mind voting (something abolished in many countries and using derogatory and out of date language about persons with mental illness).
They specified (and much increased) the number of National Assembly constituencies.
They removed — but the CoE reintroduced — provisions on public participation in Parliament.
They removed the provisions for a public defender to represent and offer legal advice to Kenyans
They removed a provision about adequate resources for the Judiciary, and the Judiciary Fund and weakened the Judicial Service Commission, some of which were rejected.
They gave the power of appointment of the Inspector General of Police to the President, and removed provisions about police working with the people.
In short, though some of its proposals did make sense, most of them showed distrust of the people and their rights, and of an independent judiciary. And many were concerned with the number and status of MPs.
THE REAL HEART OF BOMAS
As this last point shows, politicians are always concerned about power — not so much how it is exercised but who has it. And who has it matters because of the wealth and influence that come with it.
In fact, the whole BBI process is very revealing: It seems that Kenyan politicians are never happier than when in campaigning mode. They seem to love rallies. The BBI has enabled them to start this only halfway between elections. Should they not be at their desks, trying to fulfill their promises to the people?
But the discussions about the BBI process have shown something else very clearly — that much as people are happy to go to a show, their real concerns are about what government can do to make their lives better. They are concerned about the economy and about fairness and rights and values.
The Bomas draft had those at its heart. Most of these aspects of the Bomas draft are still there in the Constitution as we have it today.
Bomas was about values, about rights, about the duties of government. It was about responsibility to the people, about accountability, not wasting public resources.
BACK TO BBI
Many people have rightly commented that the BBI proposals do not do what Raila apparently wanted, which he says is the Bomas draft.
Certainly, the BBI did not propose a parliamentary system, but merely a weak Prime Minister on the Ugandan or Tanzanian model, leaving all the formal power still with the President. But strong hints have been dropped that what is really wanted from the BBI circus is a true parliamentary system though with plenty of jobs for politicians (for “inclusion”).
But there are 156 pages in the BBI Report. The weak and ill-thought-through bits on changing the system of government do not take up much space.
Much of the document is about a more moral, united and prosperous Kenya. Did you know that, for example, it recommends the writing of an official national history of the country, a National Volunteers Network, a Public Participation Rapporteur to conduct all public participation, legal guidelines for banks to lend to small and medium businesses, health, renewable energy, sanitation and waste management, and agriculture? Some of the ideas are good, many amount to little more than saying “let’s do what the Constitution — and our consciences — already require.” Most are half-baked.
Why we need a body like this to do these things is unclear. We have a government, expert bodies, ministries, committees of public servants, etc.
In truth, it all seems to be a smoke-screen, trying to pretend it is about something other than changing the Constitution for the benefit of a few. The smoke-screen is being blown aside by what is happening at the rallies. Whatever may happen at so-called consultative meetings before the big events, the media are surely right to focus on what it is all about — and what brings so many politicians away from what they are paid to do.
Bomas is not the answer. Because, as Gabriel Dolan says, we are not asking the right question.
The real question is why we cannot elect people who govern this country in the interests of the people who pay their salaries. We can fiddle with systems of government all we please, but so long as this goes on nothing will change.
The message of the Handshake and the aftermath is “If you let us all into government (with the possible exception of William Ruto) we shall stop fighting each other over who is in power and start governing for you.” Really?