Began as national dialogue, ended up an incomplete elite settlement

National Dialogue Committee co-chairs former vice-president Kalonzo Musyoka and Majority Leader Kimani Ichung'wah after signing the bipartisan talks agreement. [Dennis Kavisu, Standard]

For the umpteenth time, Kenyans appear to live with short memories. A good example is the outcomes of the Sh100 million-plus National Dialogue process at Bomas of Kenya. 

Have you had a look at the report of the National Dialogue Committee (Nadco report) issued in November? If you have not, then you have missed two important points after demonstrating in Q1 of 2023.

The first is that the political settlement is incomplete. It is difficult to understand what Parliament is expected to do with the recommendations on electoral reform, multiparty democracy, new political positions or fresh politically-inspired funds. This is the elite noise we are hearing.

Then there is an incomplete socio-economic settlement we frame as a high cost of living. In reading this section of the report four things are noticeable. After public and expert submissions, there are Nadco observations as a committee. Then there is an Azimio position. And a Kenya Kwanza position. Then Nadco recommendations. Few of which are cost of living answers. We will return to this in Part 2 of this article.  Let’s focus on the incomplete political settlement for today.

The best way to think about this is to surf to the report’s end which speaks to “(unresolved) issues to be referred to the principals”. Three issues are identified. The first looks for a Commission of Inquiry. The second requires “consultation and concurrence” before our next IEBC commissioners are appointed. The third demands an amicable out-of-court settlement agreed between the principals for the four commissioners who walked away from the election result. This settlement is couched in the terms of an amicable national reconciliation and healing but is basically financial.

It is not clear why the second recommendation on issues for principals requires that players in the game have a right to select who referees them because, first, this assumes this is a football match with two teams in the game, and second, it is an elite chess game with no regard for citizen choice. In the larger scheme of things, this is pretty much a picture of elite contest, not citizen preference.

But it is the first issue that is most interesting. This Commission of Inquiry will examine three things. First, the role played by state and non-state actors in human rights disruptions, violence and police brutality following demonstrations on the cost of living. Second, and opposite, the practical meaning of Article 37 rights (to protest) versus disruption of existing business and the economy. Third, an inquest into the “events of August 15 2022” (when the presidential result was announced). In case you are already confused about this commission, we have a fourth ask.

The commission looks into contemporary questions of state capture based on terms of reference which include “allocation and distribution of state power and resources for private and corrupt advantage; improper influence over appointments and removals; manipulation of the rules and procedures of decision-making in government to facilitate corrupt advantage, (and) deliberate effort to undermine or render ineffectual oversight bodies, (and) exploit regulatory weaknesses to avoid accountability for wrongdoing and subvert and weaken law enforcement and intelligence agencies at the commanding levels”. This comes to you on page 265 of Nadco’s 267-page report. I disclaim myself from any responsibility for what you do with this information.

But you already get the idea that Kenya Kwanza played serious chess on Azimio’s checkers. Indeed, if this was a genuine dialogue, there is the rest of the report that Parliament must look at.

Let’s quickly step back and recall what a genuine dialogue needed. As said before, probably four dialogue packages: socio-economic, governance, security and political.  Socio-economic?  Constructive input to Kenya Kwanza’s ongoing economic reform, plus a social reform package around our values and virtues.  Governance? Demand and supply-side packages focused on horizontal reform across government. Security? A human rights lens to ongoing external and internal security efforts.  Finally on politics, a “during elections” package of electoral reform, and a “between elections” package of democratic reform, with a focus on the key institutions.

With a focused minority (because Azimio is not the opposition, but should have been the majority post-election), this was the starting framework.  Yet, if we go back to the protest issues of early 2023, three observations are evident from this Nadco enterprise.  First, the final Azimio issues (cost of living, 2022 presidential election audit, IEBC recomposition (if not restructuring), respect for political parties, inclusivity etc) have been addressed on paper.  So too have Kenya Kwanza’s opening (pre-maandamano) arguments (2/3rds gender rule, funds for politicians, political offices).

As we may recall, Kenya Kwanza’s position was before Parliament before the demonstrations.

Expensive paperwork

Yet, brought together, this all looks like expensive paperwork. The loud calls in holiday political rallies between referendum and parliament across the political divide are not simply a diversion from the everyday person’s political beliefs but the underbelly of a handshake not happening.

But what does the report actually say?  On electoral and justice matters, let’s select a nice panel to select the IEBC, and then let’s also select the IEBC.  On boundaries, we are out of time, so let’s change the constitution to give parliamentarians and their boundaries time to revise their own boundaries.  On auditing 2022, let’s appoint a professional team, but if we disagree, we may go ahead to appoint our own audit teams (all of this at taxpayer expense) to present reports to our Parliamentary divide. 

Which brings us to the Parliamentary divide and respect for multi-party democracy (also known as stopping defections).  OK, let’s change the constitution to enforce individual manners, and, as we go about it, let’s make the Political Parties registrar a real government company, not an office.

And here is the incomplete logic in the Nadco report.  On top of constitutionalising NCDF and NGAAF, let’s add a Senators Oversight Fund and, of course, a Ward Development Fund because MCAs are our local MPs right?  But at the real top, let’s create these big offices for the PM (currently Prime Cabinet Secretary) and Official Opposition Leader (with deputies, staff and infrastructure).

In other words, let’s discombulate our great constitution which has offered space for our Judiciary to be more ethical than it is today, independent institutions and offices which are our world-unique fourth government arm and devolution as a human rights idea with real citizen service to deliver.

It is easy to conclude that, outside of the cost of living argument driven by the cost of government, we have a report to Bunge that spends time addressing the latter not seeing its effect on the former. In other words, we do not want the trees but we still love the forest. Or cover without protection.

In a country whose leadership is lately accepting our debt cliff, it is striking that our politicians do not care. The tragedy for everyday Kenyans is we have an incomplete political settlement.

And here’s the real worry. We have gone from substantive Agenda Four after our 2007 post-election violence, to a 2018-2020 BBI experiment to a 2023 Nadco report that didn’t cleverly process actual submissions, many of them excellent, that were made. In Nadco numbers, we are talking 258 written submissions and 60 presentations involving 704 “owners of all of Kenya”.

To repeat, our latest post-election noise and chaos needed a four-part settlement.  Socio-Economic. Governance. Security. Political. Kenya Kwanza won. Azimio lost. In dialogue.

Today we have an incomplete political settlement in our high-potential socio-economic country.  Socio-economic is deliberate, because we have no economy if we have no society or people. And we have nothing to tell the people about governance on one hand, and security on the other.

Enough already! Let’s talk about the cost of living part of the report next.