I finally got an opportunity to peruse the latest Bill seeking to amend our Constitution, commonly referred to as the “Kioni Bill”, after its mover, CIOC chairman Jeremiah Kioni.
I still have not understood why this Bill has been treated like a state secret. It is hardly available in the public domain. But having read it, let me confess that I was underwhelmed.
I had assumed it was trying to resuscitate the progressive portions of the now comatose BBI, through the parliamentary process.
I expected to see proposals dealing with the two thirds gender rule which the BBI had finally sorted. I expected to see amendments proposing increasing money to the counties and dealing with harmonisation of constituency boundaries.
I expected the Bill to deal with the enhancement of the profile of the Leader of the Official Opposition which should ideally be held by the losing presidential candidate if we are to have an effective opposition.
I expected it to extend the time for prosecuting the presidential petition to 30 days as proposed by BBI. But instead, the Bill is no more than a whimper.
Like most of the other ten or so constitutional amendment Bills introduced by Parliament over the years, its principal focus is the interest of the parliamentarians, not the country.
The Bill proposes that the President be allowed to name Ministers from elected Members of Parliament.
To give the impression that there is an ideological justification for the change, the Bill applies the same principle to the counties thus allowing Governors to appoint MCAs to County Cabinets.
To the best of my recollection, there has not been an outcry from Kenyans that inefficiencies or ineffectiveness of government have been caused by the absence of ministers from Parliament or county assemblies.
Indeed, most Kenyans seem quite content with the system as is, and where they are unhappy, it is about the capacity and competence of specific ministers, not that they are not MPs.
The clamour for ministers has been there since the promulgation of the Constitution, pushed largely by MPs for their own reasons. One does not need to be a political scientist to know what incentivises the clamour.
Kioni must know by now that the Bill will face the same hurdles that the BBI Bill faced in the courts. The issue of effective public participation will arise and on this one, the Bill will fail.
At a more critical level, the courts in the BBI judgement seemed to indicate that a similar amendment clause contained in the BBI Bill was part of the Constitution’s basic structure and therefore not amenable other than through the exercise of what the courts called the primary constituent power.
This would require a constituent assembly to consider the amendment before the same was subjected to a referendum. Of course, if the Supreme Court reverses the High Court and the Court of Appeal on BBI, the avenues for all these amendments, including BBI, would get a lifeline.
The issue those in leadership should critically consider is whether the country’s political energies need to be exhausted on divisive fights for constitutional changes before the 2022 elections.
My take is that all proposed amendments, including BBI, on the off chance that the same is resurrected by the Supreme Court, should be shelved until after the elections. Candidates seeking the presidency who believe in the agenda can sell the proposed constitutional changes as part of their campaign platform.
Right now, we should be carrying out voter education to elect better candidates this time round. We need to be analysing candidate platforms at the national and county levels. Spare us Bananas and Oranges until after we have elected a new government.