The Punguza Mizigo (Constitution of Kenya Amendment) Bill, 2019, is silent on the most fundamental feature that defines the 2010 Constitution: The Bill of Rights (Chapter 4).
Two key features define Dr Ekuro Aukot’s Bill. First, abolition of 290 constituencies as we know them to be replaced with 47 county-constituency electoral units for the National Assembly and the Senate. This is despite the fact that counties were not established on the legal population quotas criteria for electoral constituencies, but on arbitrary district boundaries.
The Bill overturns this principle by proposing Nairobi County, with a day population of 6 million people, and night population of 3 million people to be represented by 2 MPs in the National Assembly, just like Lamu County with 119,641 people.
Second, elevation of the 1,450 wards as centres of resource distribution for what he calls “units of accelerated development replacing CDF.” According to the Bill, the county-constituencies will elect a man and a woman each, making 94 MPs to the National Assembly, a senator each to the Senate, making a total of 141 elected parliamentary representatives.
Additional six Special Interest Groups (SIGs) nominated to the National Assembly, brings the number of parliamentarians to 147, down from the current 416. According to Aukot this would bring down cost of running Parliament to Sh5 billion a year from the current Sh35 billion.
The second defining feature is elevation of the current 1,450 wards to centres of resource allocation and service delivery “to bring resources to the people’s doorsteps.” Aukot also proposes scaling up sharable revenue allocations to 35 per cent from 15 per cent criteria.
This in essence captures the “Punguza Mizigo” theme of the Bill. However, Parliament is manifestation of the collective expression of the will of the Kenyan people, making proportional representation fundamental.
The Bill is silent on proportional representation in all clauses contained in the 17-page document. This is a fatal gap.
The Bill of Rights states in part: 19-(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. (2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
This central constitutional pillar implies that human rights and fundamental freedoms are about individuals and communities, not geographical space or features. Proportional representation is the manifestation, expression and fulfillment of these rights and freedoms.
This is mischief for a lawyer of Dr Aukot’s calibre, education and experience as former CEO of the Committee of Experts (COE) that drafted the documents he seeks to amend, to make such drastic proposals to alter fundamental representation principles without reference to proportional representation.
By neglecting to spell out how counties and wards (Geography) as the sole units for parliamentary representation and resource allocation will attend to proportional representation, Aukot’s Bill in effect overturns the one-man-one-vote democratic principle to replace it with one-acre-one-vote. Supposing his proposed Bill were to pass as drafted, who would be represented by the 94 MPs in the National Assembly and the 47 senators? What about minorities inside those units?
Besides the aspiration to promote national reconciliation, there was no legal obligation to preserve the 27 special constituencies. Coming from a minority community, Aukot should be more sensitive about the nuances of constitutional making than seeking to orchestrate a crisis between minority groups and dominant groups in Parliament and county assemblies.
Aukot should heed the counsel of former chair of Minorities Caucus at the Bomas of Kenya constitutional conference, Joseph Nyaga, who has said political tact calls for dialogue and harmonisation between Punguza Mizigo and the Building Bridges Initiative.