Avoid errors of past review team

A fresh Transparency International Kenya opinion poll, conducted in conjunction with National Council of Churches of Kenya, shows public scepticism on the ability of the Grand Coalition to deliver reforms remains undiminished.

Few expect this Government to deliver a new constitution in one year as promised, despite the creation of a Committee of Experts to thrash out ‘contentious issues’ and come up with a universally acceptable draft. Given their experience with the Bomas process, the majority of respondents see political interference in the constitutional review as the greatest challenge — not, as one might think, an inability to bridge the gap between opposing views on various issues. When it comes to deciding how to structure the Executive, share State power, decentralise the Government and so on, the team led by Senior Counsel Nzamba Kitonga should not make the mistakes of their predecessors: Inferring extreme positions from generalised views.

In this regard, the TI-Kenya/NCCK survey helps clear up one area of debate. Only 15 per cent of respondents were in favour of a ceremonial Head of State with a Head of Government who exercises all executive power. Most of those interviewed apparently see this, rightly, as simply moving the centre of patronage and political competition from State House to another Government office.

Wise Solution

Thirty-two per cent back the status quo, but given the country’s ethnic make-up, this carries about as much weight as the other position. The 53 per cent in favour of sharing executive power between a President and a Prime Minister reflects the wisest solution. As we have argued here before, in dismantling the imperial presidency, it is vital to stop short of stripping the seat of so much power the problems associated with its abuses find new homes.

As such an executive PM must be accountable to the people, the position should be filled by direct election. Leaving the matter to a question of parties with a parliamentary majority is inviting future gerrymandering. As for presidential appointment, no way.

We would have wished that a more detailed line of questioning had been adopted on devolution, that most contentious of issues.

The survey report says 61 per cent of respondents favour the devolution of executive power to Parliament and regional governments. It also claims 74 per cent of respondents have a proper understanding of "the majimbo system of governance". Without insights into how they arrived at this conclusion, and whether by majimbo it was meant federalism (ugatuzi) or mere decentralisation, we must treat such a finding with scepticism.

There is a huge gap between a preference for "sharing national resources across regions" or "ret-ention by each region of a part of the revenue it collects" and a vote for fiscal and legislative autonomy. Before TI-Kenya and NCCK can urge Kitonga and his team to give us whatever they interpret to be majimbo, it would be necessary to drill down a lot further to see if there is consensus on just what gets devolved. With local authorities collecting and retaining large revenues and up to seven ‘devolved funds’ such as the Constituency Development Fund and the Local Authorities Transfer Fund essentially "sharing national resources", greater public awareness may reveal a different picture. If the respondents TI-Kenya and NCCK spoke to were to know federalism presumes reg-ional legislatures — that is, provincial parliaments making laws for that unit alone — might they not feel the need to be more specific as to what they mean?

Contentious Issue

In a statement to the Tenth Parliament at his first Prime Minister’s Time on Tuesday, Mr Raila Odinga spoke of the need for the Tenth Parliament to create a new political order and end turbulent and unpredictable politics. Constitutional reforms play a central role in this order and must work towards solving the problems we have, not creating new ones.

Contentious issues should be resolved with the clearest understanding of what the public seeks to cure. We must not impose solutions we infer from uninformed or unclear public opinion.