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Consensus building and not ‘us versus them’ is way to go

By Aden Duale | November 1st 2020 at 10:42:32 GMT +0300

After its launch, last Monday, the Building Bridges Initiative (BBI) report continues drawing varied reactions in the wake of the push and pull surrounding the clamour for constitutional reforms.

But as Kenyans peruse the document, a few home truths will have to be digested. Close scrutiny of the proposals reveals a combination of benefits and tricky flaws.

It is good news that the BBI creates clarity on the consideration of the annual financial legislation in a manner that eliminates deadlocks through the establishment of a mediation committee and authorisation of withdrawal from the Consolidated Fund whenever there are delays in the passage of Division of Revenue.

The report also seeks to increase the minimum equitable share of the revenue from 15 per cent to 35 per cent but without amending Article 203 on the criteria of equitable sharing of resources between the levels of government. This is a win for devolution. It recommends the amendment to Article 203 where the population as a criteria is given prominence. There’s also the ward development fund to devolve resources to the smallest unit of devolution. BBI roots for the nomination of women as deputy governors allows for the appointment of ministers from among MPs, recognises the Leader of Opposition and brings back ministers to Parliament hence creating a direct link between implementation and formulation of legislation.

It is noteworthy that it proposes a Prime Minister and two deputies besides an Independent Policing Oversight Commission and a Youth Commission to advance youth agenda. However, some key proposals in BBI require consensus building.

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For instance, it dilutes the independence of the electoral commission. The proposed amendments recommend there be seven members of IEBC, four of whom shall be representatives of parliamentary political parties.

The composition and requirements for the appointment of IEBC commissioners and term of office is provided for in the IEBC Act, 2011. Amending the Constitution to establish the IEBC and provide for appointments of commissioners will mean that in the future, should there need to reconstitute the commission, there would need to first conduct a referendum to change its composition.

This rigidity can lead to a crisis. The need to retain the commission in an Act of Parliament as is the case now need not be overstated. The mode of appointment of commissioners also changes and confers upon political parties the power to appoint at least four commissioners. This will politicise the electoral body, taking us back to the Kivuti-led commission that conducted 2007 polls.

Interestingly, there is also a proposed amendment to delete from the Constitution the role of IEBC in settlement of electoral disputes arising from nominations and leave to Parliament to enact legislation to provide for this.

There’s lack of a clear basis for the composition of Parliament. There are proposed amendments to provide that the National Assembly shall consist of 360 members each elected by registered voters of the 290 constituencies and the Senate shall consist of 94 Senators, one man and one woman for each county.

New constituencies

It is not clear how the additional 70 MPs will be identified and which constituencies they will represent. It is also not clear what formula was used to come up with the 360 and 94 senators. This may lead to over-representation, duplication of roles and conflict on the demarcation of roles where there are two representatives in a single constituency or county.

Also, the proposed amendments remove the need for the National Assembly to approve the persons nominated by the President to be Cabinet Secretaries, Secretary to the Cabinet and PSs. The vetting processes have been key to ensure the suitability of appointees. The proposals also repeal Article 158, in effect removing an elaborate removal process for the DPP. This process will now be governed by the Act of Parliament in what opens up the process to abuse.

The proposed amendments establish a Judiciary ombudsman which is mandated to consider complaints against judges. Interestingly, the members of the Ombudsman are appointees of the President with the approval of the National Assembly. This may highly compromise the independence of the Judiciary.

On the National Police Service Commission, the proposed amendments abolish the National Police Service Commission and replace it with the Kenya Police Council whose members include Internal Security CS and PS. This compromises the independence of the force. The proposal to amend the Constitution to recognise regional integration and cohesion and an economic system that provide equitable opportunities is unwarranted. It can be pursued as a matter of policy.

To implement most of the changes, Parliament will be required to consider and pass several Bills. What if this does not happen? Are there timelines for passage of the Bills? What are the enforcement mechanisms to ensure that Parliament shall pass the required Bills? The sober debate should continue in seeking to refine the BBI to meet expectations of Kenyans.

-The writer is Garissa Township MP and chairman of the Pastoralists Parliamentary Group

BBI Division of Revenue IEBC
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