• There has been a noticeable tendency for people – especially those supporting the BBI – to point to things that they think are good about it, but on which there will never be a referendum.
• There is a group of changes designed to appeal to certain sections whose votes will be important – or whose vocal opposition could derail the BBI train.
We had been told that this week, a push would begin to get one million signatures in support of the BBI proposals to change the Constitution.
Perhaps even five million in 10 days (which hardly conveys the idea of people signing something they really understand and want to become law).
This would, the media tell us, lead to a referendum.
This column has stressed before that a referendum will happen only after Parliament has had its say. And it will only deal with changes to the Constitution.
WAYS OF LOOKING AT BBI
The BBI – meaning the report that was recently published – is a complex thing. It is rather like an election manifesto, and is being used like that: “This is what we shall do for you if you vote for us” – or vote for the BBI.
Some of those things are to change the Constitution, some to change other laws, and some for policy decisions or implementation of existing policies.
If you look at the substance – the content – of the proposed changes, rather than the legal form the change would take, you can analyse it another way. There is the set of changes that the BBI sponsors really care about.
And these are the things they talk about: basically the shift to having a Prime Minister and two deputies (we already have the President and deputy, of course).
There are a few other things related to that, including restructuring the IEBC.
Surely you don’t (or a Kenyan politician doesn’t) support any change in a body like that if you don’t think you will benefit from it?
In this case, the key change is to have four out of seven members nominated by political parties. And which political parties would those be?
There is a group of changes designed to appeal to certain sections whose votes will be important – or whose vocal opposition could derail the BBI train.
These people include county governors and county assemblies (appealed to by raising the minimum financial allocation to counties, and by putting the Ward Development Fund in the Constitution), and MPs, especially male ones, (by protecting the existing 290 constituencies, creating 70 more seats for MPs that will go to more populated areas, and providing that ministers may come from the National Assembly).
And there is a group of suggestions that are intended to appeal to the ordinary voter. These particularly are often not among the Constitution-changing proposals.
But the idea of a Youth Commission is – hoping to appeal to the 29 per cent of Kenyans who are between the ages of 18 and 35. But there seems no other good reason to have such a commission when all its functions could and should be already performed by the government.
IDEAS YOU WON’T GET TO VOTE ON
There has been a noticeable tendency for people – especially those supporting the BBI – to point to things that they think are good about it, but on which there will never be a referendum.
A newspaper column recently praised the BBI as a document worth supporting because it included limiting allowances.
Many Kenyans are rather appalled that people receiving a decent salary also get sitting allowances, for example, to do what they are already paid to do.
Yes, the BBI does mention allowances. Under 'Shared prosperity' it recommends: “Eliminate all sitting allowances for Public Officers on salary,” and the method: “Constitute a team in conjunction with the Salaries and Remuneration Commission (SRC) to rationalise allowances and salaries for all Public Officers.”
But you won’t get to vote on this. And if the government – and the Commission - had thought this a good idea they could have done it years ago.
Anyway – most people probably think of MPs as the prime example of allowance-seeking officers.
But the BBI proposal is for 'public officers' meaning the civil service. MPs are state officers and they are not included among public officers (Article 260 of the Constitution).
In a Webinar on Tuesday organised by the International Commission of Jurists – Kenya, MP Millie Odhiambo said the one reason she supported the BBI was its proposal for the introduction of an Act of Parliament on Public Participation
But there has been a Bill around in Parliament for some time (proposed by Senator Amos Wako, a member of the BBI group).
Clearly, the BBI is not necessary for this. Again, if the government wanted to do it, it could have been done years ago. And you won’t get to vote on this either.
Senator Gideon Moi is reported as saying, “The youths will have about 30 per cent of tenders to uplift their lives. That's why we are saying the document is the best for all people.”
But looking at the report we find only, “Full implementation of the 30 per cent Access to Government Procurement law by special/marginalised groups (eg, young people, women, persons with disability and local contractors)”.
Apart from the fact that this 30 per cent is not for youth alone, you will easily see that this is one of those suggestions to implement what is already supposed to happen. And, if you are youthful, don’t get too excited: you won’t vote on this either.
If you read the report you will find many pages in the latest report proposing what may sound like nice ideas. Some people might like the idea of an official historian charged to write Kenya’s history for the last 1,000 years.
Others would be appalled at the idea of a nation’s history being written by a government appointee. But don’t worry – you won’t be asked to vote on that.
The idea of a Ministerial Code of Ethics, including an obligation to use public services such as schools and health facilities, is rather appealing.
It should extend to the public service too. And would it cover the President and the new Prime Minister? You won’t see this on any referendum ballot paper, either.
Here are a few other examples picked almost at random.
Various suggestions involve adding to what is taught in school. They include learning about “women leaders, freedom fighters, conservationists etc.”, about religions and cultures, about the history of ethnic groups and development of indigenous technology, and citizenship education to instil a “sense of national ethos rooted in ethics, morals and integrity”.
There is a suggestion that the President should have a Council of Advisers (non-salaried) who are “eminent, experienced and honourable citizens.”
Various changes in ordinary law are proposed. They include setting up a Health Service Commission and making it possible for the Ombudsman recommend that a public officer guilty of gross violation of the constitution or the law, is unfit to hold public office.
They would tighten the law on public officers’ declaration of assets (but not to the extent of making them public – something proposed from the beginning of the constitution-making process, and removed by those MPS in Naivasha in 2020.
But you won’t get to vote even on changes to the law.
PROBLEMS WITH THE IDEAS
Many of the ideas involve enforcing law, rules or guidance that already exist.
As Africog told us the other day when launching its report about budgeting for corruption (which means how the system budgets to benefit from corruption, not how to prevent it), our problem is not a shortage of laws. O
ur problem is an unwillingness to do what the Constitution and laws require, which unwillingness any number of BBI-style reports will not cure.
What guarantee is there that any of these things will happen after a referendum?
Once (if) the sponsors of BBI get what they want into the Constitution, why would they then start to do the things they (in the case of elected officers) have been supposed to do for years?
And you are not going to get to vote on any of them. So before you vote, if it comes to that, please make sure you know what you are actually asked to vote on.