• One of the ironies of the BBI report is that its stress on a system of government in which prominent posts are to be occupied by important ethnic figures.
• The thesis is that only by ensuring presence on the basis of ethnicity can peace and democracy be assured.
“Inclusion”, and related words, are very prominent in the BBI report (21 mentions in fact).
Often they focus on “ethnic inclusion”. Under “Ethnic Antagonism & Competition” they suggest one object is “Ensure all existing laws and administrative structures that support ethnic inclusion are fully adhered to and implemented.” And they advocate training for public services on the principles of ethnic inclusion.
They do not discuss only ethnic inclusion, but, for example, include the need to ensure that each Kenyan vote has the same value, as envisaged in the Constitution, that parties should be compelled to be consistent with the Constitution to meet the gender rule and other constitutional measures of inclusion. They talk about economic inclusivity, including proposing a Shared Prosperity and Wellbeing Index providing an objective assessment of whether economic inclusion and benefits are felt by all Kenyans. They say “Kenyans expressed a keen desire for greater political, economic and religious inclusivity. They want fairer and more equitable planning and sharing of national revenue”.
As so often, many of the recommendations essentially mean: do what you are already supposed to be doing under the Constitution. But, if we are focussing on a referendum, what really matters is any planned changes to the Constitution. So, would the BBI proposals for constitutional change lead us towards a truly more inclusive society?
Because of the Bill published on Wednesday, we are constrained to focus on these issues in relation to the make-up of government and legislative institutions.
INCLUSION AND EXPANDED EXECUTIVE
This takes us to the proposal for adding a Prime Minister and 2 deputies. This is supposed to be about “inclusion”, and is the most discussed proposed change. “Lack of inclusivity is the leading contributor to divisive and conflict-causing elections. Kenyans associate the winner-take-all system with divisive elections and want an end to it.” This is the change that the sponsors of project BBI really want, and not changed in the Bill.
Apart from the improbability that expanding individuals’ ethnicities at the top of the tree from two (President and DP) to three (the PM – the deputy PM positions are really non-jobs) will make a radical change, let us “unpack” this proposal.
It assumes that that people will feel included because their leader holds a big office. Is this because those big officer holders will ensure that their own regions, or “tribes”, get benefits? If we asked them - Uhuru, Raila, Mudavadi, etc. – would they say “Yes; as a national leader, I shall try to benefit my people more than others”? Would they make appointments disproportionately from their own tribes? If so, it is clearly wrong, morally and politically – and unconstitutional. If not they, who is it who convinces the people that this is the reality of Kenyan politics?
Surely the real way to include everyone is for the government to work for justice, fairness and inclusion through its policies and practices? And the Constitution already requires this!
NATIONAL ASSEMBLY AND INCLUSION - PREVIOUS PROPOSALS
Provisions to increase equality of the voting system – which the BBI emphasises - would enhance fair representation. Equal worth of votes is also something stressed in the Constitution, and is thus in principle a good thing. In the second BBI report the pursuit of this objective included increasing the number of MPs and allocating the new ones to more densely populated areas, and doing away with the county women representatives in the National Assembly. These provisions largely remain in the revised Bill. They would also have done away with the 12 “nominated” seats in the National Assembly, supposed to accommodate special interest groups including persons with disability, and youth.
It seems they have bowed to pressure – from people who did not understand how the 70 extra seats would be accommodated, from special interest groups and from women. This was because the price of improvements in equality of vote would actually have been to reduce the presence of those who have tended to be excluded in the past, especially women, persons with disability and marginalised groups and communities.
THE BILL’S PROPOSALS
The newly proposed solution for the gender issue up-ends any idea of votes being more equal.
They (who exactly were “they” – one wonders) have adopted the idea of extra seats to meet the gender requirement – that idea that has always been favoured among male MPs (assuming they could bring themselves to accept the idea of more women at all, that is).
So in addition to the still 360 MPs – but now in 360 separate constituencies – there would be enough “special seats members” to ensure that the “no more than two-thirds of either gender” requirement is satisfied. It will of course be about women – but only for the next three elections, after which these seats will cease to exist unless the Constitution is amended again.
There is now a requirement that parties must nominate at least one third women candidates for constituency seats. But there is no way parties can be required to nominate the women for seats the party is likely to win. However, let us assume that of the 360 constituency members this rule produces 90 (25 per cent) women MPs. Add the three women for seats for persons with disability and youth - that is 93 women altogether. For the moment, assume that that is out of a total membership of 366 – so 25.4 per cent women. You need extra women to ensure the gender rule, and every time you add more women the total size goes up if course. To get to one third women we would need 38 more women, meaning a total house of 404.
But: the House is expanded by including the Leader of the Opposition (the best loser in the presidential election), the Attorney General - and any Cabinet ministers not already members the House. Presumably most will be – because clearly this provision in intended to please MPs. But any additions who are men will require further additions of women to ensure the gender rule is obeyed.
But where will these extras come from? In the county assemblies they have until now been taken from party lists – so in theory voters know who might be added to their assembly, and could take this into account So in theory they are elected.
But the BBI proposes that the extras needed will come from defeated candidates for constituencies. Of course the defeated women candidates – though they do not put that very clearly. (They have done something similar for the county assemblies - though confusingly also talk of party lists, yet would make lists redundant.)
So you are bringing into the house, on our hypothetical calculation, 38 women who lost elections. Identifying them would begin with the woman who got the highest vote. In some constituencies she might have come quite close to the winner. As you go down the list the vote for defeated women will get less and less. Some constituencies of course may have no women candidates.
Several constituencies will find that, not only does their first choice become their MP, but - if that person is male - they also see their second or even third choice in Parliament. A person that more people rejected than supported.
It is possible that bringing in 38 defeated women might change the party make-up of the House. It makes it more likely that the person who comes in as Leader of the Opposition might find she is leader of the largest party – and Prime Minister!
In order to accommodate the prime movers of this whole exercise, but not alienate women and persons with disability and youth, the drafters of this Bill have produced a potentially complete nonsense of an electoral system.
And whereas originally the search for equality of vote was leaving out women and disadvantaged groups, now the search for inclusion is giving some constituencies two MPs, and running the risk of changing the party make-up of the house. A true mess.
The authors write in their personal capacities