Okoa Kenya draft Bill is the surest route to amending our Constitution

Okoa Kenya, a popular initiative led by the Coalition for Reforms and Democracy (CORD) to amend the Constitution, recently presented a Draft Bill to the IEBC that should be voted on by the people sometime next year in a referendum.

The 2010 Constitution can be amended in two ways: by a parliamentary initiative or by popular initiative through a Referendum. Article 255 identifies certain aspects of the Constitution which can only be amended through a referendum.

These relate to the supremacy of the Constitution, the territory of Kenya, the sovereignty of the people, the national values, the Bill of Rights, the term of office of the President, the independence of the Judiciary and constitutional commissions/offices, the functions of Parliament, objects and principles of devolved government, and the provisions of Chapter Sixteen of the Constitution stipulating how to amend it. Article 257 lays out how a popular initiative to amend the Constitution by a referendum shall be carried out. Article 256 explains what aspects of the Constitution can be amended through a parliamentary initiative. In essence all those matters mentioned in Article 255 above cannot be subject to amendment through the parliamentary route. In the event that Parliament proposes such an amendment, Article 256(b) compels the President to “request the IEBC to conduct, within ninety days, a national referendum to approve” any such parliamentary initiative. Otherwise, a popular initiative to amend the Constitution is open to any Kenyan on any issue provided the procedures laid down in the Constitution are followed.

If one takes a good look at the Okoa Kenya Bill, one will notice that the proposals relate to those aspects of the Constitution mentioned in Article 255 which require a referendum in order to be effected, and other general ones as well.

Article 10 of the Constitution comes under the theme of “National Values and Principles of Governance”. This Article, therefore, can only be amended through a popular initiative. Okoa Kenya has proposed that Article 10:2(b) be amended by including the principle of “separation of powers” among the other principles mentioned therein like “the rule of law”, “patriotism”, “democracy”, etc.

Similarly, Chapter Five of the Constitution deals with issues of “Land and Environment”in Articles 60-72. The issues covered here are to do with matters that relate to both the national and county governments. Looking closely to these articles as they are, they ignore any reference to “county government” while land is also a county government function in Schedule Four of the Constitution. Amendments have therefore been proposed to address this anomaly. In the newly proposed Article 60(2), the “county government”, as well as the “national government” are taken into full account in the use, management and disposal of land.

Apart from what we have mentioned above, the proposed amendments deal with following issues.

One, the principle of citizenship. The idea all Kenyans are equal and have a right to elect those who govern them has, in practice, been undermined by two things: unequal access and distribution of Identity Cards (IDs) and inability of some Kenyans to register as voters. The amendments proposed will empower all Kenyans to have IDs and to register and vote in elections. Further, the principle of equality must be reflected in how government is formed and public institutions function. In other words “the face of Kenya” must be seen in our government and our public institutions as much as possible.

Two, the management of the electoral process by an IEBC chosen and driven by one person called the President will be eliminated when the Okoa Kenya proposals are approved. Instead the IEBC will be composed along the lines that were followed after the IPPG in 1997 so as to be more transparent and accountable. In 2002, the IPPG-made Electoral Commission managed the elections very successfully and both losers and winners held the outcome as legitimate. In order to make the IEBC to be more responsive to the needs and interests of voters from now on, political parties will be represented in the Commission in accordance with their parliamentary strength.

Three, when elections are held, people may vote freely but their votes may not be counted properly. Even when their votes are counted properly at the polling station they may not be collated properly once they reach Nairobi.

Even when they are collated properly the results may be announced upside down. In order to cure these anomalies which we saw in 2007 and 2013, the amendments propose that votes once counted at the poling station and announced by the Returning Officer at the constituency level are final. Nobody else will be allowed to change, alter or vary the results which shall be made public and streamed simultaneously to all political parties. Such results will then be transmitted, transparently and in real time, to the appropriate tallying stations.

Four, the issue of devolution is a cardinal and progressive feature of our constitution. As presently designed it has some inherent problems that need to be ironed out. To begin with, county governments are given functions in Schedule Four of the constitution but these functions are not properly funded. Close to 50% of services that the government should render the people of Kenya are now in the hands of county governments, yet the constitution only guarantees counties not less than 15% of the national budget. Further this 15% is calculated in a very unsatisfactory manner. The amendment proposes to increase this to be “not less than 45%”-- a very reasonable and fair proposal--and for 5% of this to reach the grassroots as “ward development fund.”

Five, the Senate is a very key institution in our bicameral legislature. In fact Article 96 of our constitution gives the Senate the onerous responsibility of “defending, promoting and protecting the interests of the counties”. Yet the key issue of counties cannot simply be confined to the “Division of Revenue Bill” which now seems to be the major constitutional responsibility of the Senate.

In all bicameral legislatures, the Senate needs to be the House where all laws are moderated, citizens given recourse to an appeal process within the legislature over the making of laws and the appointment and impeachment of public officials properly handled. The amendments proposed will go a long way to ensure we have a Senate playing its rightful role in our growing constitutional democracy.

Finally, we continue to have problems with insecurity because security is still managed as a central government affair. Where our people live in the counties security personnel operate as if they are an alien force divorced from county governments. This mischief will finally be cured when the amendment to establish a “County Security Advisory Council” is established at the county level to strengthen community involvement in the security of the county and to enhance accountability of security personnel to ordinary wananchi.