EDITING CONSTITUTIONAL AMENDMENT

What was 'BBI can't be amended' hullaballoo all about?

Special interest groups and persons with disabilities now have four guaranteed slots of two men and two women.

In Summary

• If you complained from the outside without properly engaging, the window is now effectively shut.

• This is a lesson that when you hear others saying there is no room, there could still be space for you.

A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020.
BBI REPORT: A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020.
Image: ANDREW KASUKU

Dear fellow Kenyans,

Weren’t we told that the BBI document couldn’t be amended? The truth of the matter is that a lot that was in the initial document has actually been altered.

To begin with, economic issues have been addressed through the emphasis on the promotion of African unity beginning with the formation of an eastern African confederation to increase markets for our goods and services.

Second, the major sources of Kenyan livelihoods ie agriculture, pastoralism, the blue economy, the need to protect intellectual property and data, science  and technology have all been included to enhance shared prosperity. It is also to create industries while supporting small and micro enterprise.

On representation, an extra 70 slots have been added to cater for historically under-represented populations, and the seats shared fairly across the counties. Those small constituencies that don’t meet the population threshold have also been protected and will not be abolished.

Special interest groups and persons with disabilities, who weren’t represented in the National Assembly as per the previous draft, now have four guaranteed slots of two men and two women. I led a spirited fight to ensure this happens, and though we have lost representation in the Senate, this guarantee is welcome as we had lost almost everything.

Representation in the counties can be guaranteed by amending the legislation provided for in Article 177 (1) (c). The youth have two slots being a man and a woman in the National Assembly, but the two slots in the Senate have been scrapped.

Women are the biggest gainers in that political parties will have to ensure at least a third of nomination slots are women during primaries. Further, a gender top up list of those who vie but lose with the highest number of votes shall be nominated to Parliament and county assemblies.

However, this provision shall lapse after 15 and 10 years respectively in the National and county assemblies and shall be allocated to parties based on the total number of votes received in the general elections.

The National Assembly has also gained in that Cabinet ministers can be either MPs or technocrats, but deputy ministers shall only be MPs, with the numbers capped between 14 to 22. This is to avoid the situation whereby the President can appoint an inordinate number of deputy ministers as was the case under President Moi. At one point he appointed 75 assistant ministers.

MCAs shall also be appointed as county executive committee members, though up to half of the total number. Governors have also been given a chance to re-assign or dismiss a CEC member. This gives CECs room to remain in office in case a new governor is elected.

The powers of the Senate have been enhanced in that it shall vet and approve the nominee in the office of the Controller of Budget and members of the Youth Commission. Further, any mediated bill that has been agreed upon will now be forwarded to the President for assent by the Speaker from whose House the bill originated from.

The positions of the Majority and Minority leaders and their order of precedence have been formally recognised in the Constitution.

The Division of Revenue Bill has been retained in the current form rather than it only originating from the National Assembly as had been proposed in the earlier draft.

Voting in the Senate is no longer by delegation and this will see to it that the passage of bills shall be fast tracked. This, coupled with the fact that Article 110 (3) requires that before a bill is published there must be concurrence from both speakers about whether a bill concerns the counties, effectively makes the Senate an upper house since most, if not all, bills concern the counties.

Further, the oversight role of the Senate has been enhanced to effectively cover monies allocated from the equitable share but also own source revenue from the counties.

The official Leader of the Opposition cannot come from the same party as the Prime Minister. This is important because it shall be possible for the President and Prime Minister not to belong to the same party or coalition as was the case in the 2008 grand coalition government.

The holder of that position must have at least 25 per cent of the seats in the national assembly.

To avoid uncertainty and tensions in the presidential race, the death of a running mate shall not occasion the cancellation of a presidential election and further, the presidential petition will now be heard within 30 days to give the Supreme Court more time to hear the case (s).

In the meantime, the Cabinet — which is accountable to both the President and the National Assembly — shall remain in office until the president-elect is sworn in.

It is instructive to note that all other election petitions shall terminate at the Court of Appeal to avoid unending electoral cycles. The presidents of the high and appellate courts shall serve for one non-renewable term of five years, while judges  in the supreme and appellate courts shall be required to have at least 20 and 15 years of experience respectively.

The position of the Judiciary ombudsman has been created to discipline errant judges. However, while the President is the appointing authority, a selection panel appointed by the JSC shall vet the nominee. He or she shall be required to make annual reports to the Judicial Service Commission and Parliament. Lawyers who get elected to serve in the JSC shall not be allowed to practice in any courts or tribunals for the term of service in order to avoid conflict of interest.

To fulfil what was agreed in Naivasha, the Constituency Development Fund has been included in the Constitution together with the Ward Development Fund. This will enhance development delivery to the lowest administrative units.

To enhance institutional independence, county assemblies now have their own operational fund, away from the executive one under the governor, who is now constitutionally answerable to the county assembly.

Governors are also supposed to report the measures put in place to ensure the provision of the rights as provided for in Article 43 with regards to right of every Kenyan to access the highest standards of health, education, clean water, housing, social security and emergency treatment since these are the real concerns of wananchi.

On revenue sharing, a safeguard has been provided in that if Parliament fails to agree on amounts to be disbursed to the counties, then 50 per cent of the equivalent amount that each county received the previous year shall be disbursed by the Controller of Budget.

The devolved funds have been enhanced from 15 to 35 per cent, while the Equalization Fund has been secured for a further 30 years. This takes care of the concerns of marginalised areas.

All the constitutional commissions shall have seven and not nine members, with the Salaries and Remuneration Commission having been altered to avoid institutional representation and instead replace them with human resource professionals.

The new SRC will now have powers to determine the salaries and remuneration of state and public officers, including consultants of national and county governments. This will help manage the wage bills and positions that are created thus bloating the work force.

Finally, the Inspector General of Police has been given new powers of command, promotion and transfer of police officers, while the National Police Service Commission has been made a regulatory agency with regards to recruitment, conduct and prescription of terms of service and codes of regulation.

The Directorate of Criminal Investigations shall be headed by a Deputy Inspector of Police, as a third arm of the National Police Service. The Director of Public Prosecution is now fully and independent office, while IPOA, which had been proposed to become a full constitutional commission remains as it is.

In short a lot has changed from the initial draft and if you complained from the outside without properly engaging, the window is now effectively shut. This is a lesson that when you hear others saying there is no room, there could still be space for you. Watch out!