COTTRELL GHAI: Dear Deputy President…

Once you are elected, the Constitution almost expects you to cease to be a Kikuyu but the DP of all the people.

In Summary
  • Reinforcing existing inequalities and inequities through law, policy, taxation or practice goes directly against the Constitution
  • To treat the unequal in a uniform way is unconstitutional
Deputy President Rigathi Gachagua during a session at the 23rd Ordinary Session of the Inter-governmental Budget and Economic Council at the DP’s official residence in Karen on May 6, 2024
Deputy President Rigathi Gachagua during a session at the 23rd Ordinary Session of the Inter-governmental Budget and Economic Council at the DP’s official residence in Karen on May 6, 2024
Image: DPCS

Your Excellency, Kenyans generally assume that your nomination as running mate by Dr Ruto was designed to persuade your community to elect the two of you to the highest offices in the land. That is all well and good – or at least inevitable.

But – with all due respect, as lawyers like to say – once you are elected, the Constitution almost expects you to cease to be a Kikuyu. You swore oaths of allegiance and office that speak of the “people of Kenya”. You are the Deputy President of all those people – not Deputy President (Central). We do not have a Deputy President (West) or Deputy President (Coast).

When you speak of “we” it ought to mean all those people – not those of Central Kenya. Yet you apparently said “We [meaning ‘the region’] must speak with one voice.” Of course, no one really expects you to pretend you are not Kikuyu, but so long as you are Deputy President, you are surely called on to be more than that, and avoid being drawn into controversies that put you firmly in a Kikuyu “camp”.

While the Constitution recognises cultures and languages as very important and diversity as something to be proud of, state officers should use their powers for the whole nation. Judges, for example, must not lean towards their people when giving judgment. There is no “off-time” when you are President or Deputy President. You can’t wear a “different hat” – your “hat” at all times is that of the DP.

The President, says the Constitution, “is a symbol of national unity”. You – the person who stands in for the President sometimes, who is reserve president in case anything happens to Dr Ruto – cannot be a symbol of division. To descend into the political arena in a way that is focused on the interests of your particular ethnic group surely places you in breach of your deputy presidential oaths.

More specifically, your concern about “one vote one shilling” is deeply problematic – and fundamentally anti-constitutional.

Core constitutional concern

The Constitution – that document adopted in 2010 by “We, the people of Kenya” (not we the Kikuyus, the Luhyas, the Kalenjin, the Luos, the Somali… the El Molo) has many themes. But one is that of equality and fairness – and processes to bring us closer to realising them.

Most obvious is Article 27 with its requirement of affirmative action to remedy past discrimination. But it appears particularly in relation to finance and to devolution. The burden of tax must be shared fairly (which cannot mean the same as equally where circumstances differ).

“Economic disparities within and among counties and the need to remedy them” is one of the criteria for fixing the equitable share for counties. Righting inequities and past wrongs is not limited to the equalisation fund.

Indeed, among the very objects of devolution we find “to ensure equitable sharing of national and local resources throughout Kenya”. And one of the principles of public finance generally is “expenditure shall promote the equitable development of the country”. Of course, remedying “historical injustices” is prominent in the Land Chapter.

All this is part of the Constitution’s central role of bringing about a more just society, including through the remedying of past wrongs. It is one of the reasons why we talk of a “transformative Constitution”.

Reinforcing existing inequalities and inequities through law, policy, taxation or practice goes directly against the Constitution under which and for which you were elected.

One vote one shilling and CDF

You have spoken of “one vote one shilling” in general terms and specifically in connection with the NG-CDF. It was a slogan that figured prominently during the BBI saga – particularly in the context of the push for more constituencies, which would notably have benefited some areas of Central Kenya.

You are reported as having said Ruiru constituency with 800,000 people should not get the same in CDF as one with 14,000. Two points come to mind.

First, we should not have one constituency with 800,000 people and one with 14,000. The Constitution tries to ensure this, with the aim not of dividing money but of achieving the value of “one person one vote one value” as far as possible.

Divergence from equality of constituency size is permitted to a limited extent to accommodate differences such as densely populated or huge and sparsely populated areas. Gradually we are supposed to move towards greater equality – a process currently stalled because we have no IEBC commissioners to carry out the boundary redrawing exercise that should have been done some time ago, but has, of course, been held up by politicians’ wrangling.  

Secondly, sharing money on the basis of constituencies is done under the ND-CDF Act and 75 per cent to give people a roughly equal share of voice in government is mixed up with the issue of sharing money.

And, ironically, just 0.5 per cent of the national revenue is to be allocated through the Equalisation Fund for “basic services including water, roads, health facilities and electricity to marginalised areas” in an effort to rectify imbalances. It is allocated by the Commission on Revenue Allocation on the basis of careful research.

Yet 2.5 per cent of the national government’s share of that revenue, at least three times the Equalisation Fund, is to be allocated on a completely different – and much less carefully thought-through – basis, and a basis that does not now, and probably will continue not to be, a positive influence towards national equality and cohesion. Yet again the constitutionally anomalous position of the CDF is clear.

Beyond the CDF

You have complained more people in an area means more taxes from them. So they should get more. But this goes directly counter to the idea of redistribution that is in our Constitution.

And let’s be frank – more development means more income which means more taxes. The CRA, when devising the bases for division of revenue, considered history. When preparing its second policy for dividing the Equalisation Fund, it reviewed the causes of inequality, including the colonial period when “Implementation of the colonial legislation and /or policies intentionally or inadvertently instigated marginalisation in some parts of the country.”

Then came the inconsistency of vision and practice of post-colonial governments (including the infamous Sessional Paper No. 10 of 1965). The last “exacerbated inequality by focusing investment resources on areas with the ‘highest absorptive capacity’ without adequate redistributive policies”.

This is – interestingly – from a 2013 Government Paper on National Cohesion and Integration, in the very early days of the Kenyatta/Ruto regime, which recognised the Constitution as the heart and foundation of the topic.

People who can pay more tax may be benefiting from past policies that favoured them. And if those who pay more taxes get more money, which will mean more development … I need not go on.

The time has come to change this. In fact, it came in 2010.

One man (even this is against the Constitution which never speaks as though only males do things) one vote one shilling is not the same as saying that “resources are about people,” as you say. People cannot be separated from their contexts, including their pasts and their environment. Their life chances, and their hope of changing them, are deeply affected by these factors. To treat the unequal in a uniform way is unconstitutional.

To repeat what I observed a year ago, David Ndii, now chairman of the President’s Council of Economic Advisers, in a 2020 article in the Elephant forcefully criticised the one vote one shilling philosophy.

And he wrote, “Without a commitment to equitable development there is no social contract, which is to say that, sooner or later, there will be no Kenya.” I hope that sentiment still figures in his advice.

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