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Let the public direct constitutional reform with politicians input

By Kamotho Waiganjo | October 13th 2018 at 12:00:00 GMT +0300

The political momentum for a referendum, content of which is yet to be clarified, is fast gathering speed. So much so that the Deputy President whose opposition to the referendum has been consistently vigorous has done a 180 degree turn and joined the bandwagon, albeit with loaded reservations on content, a politically clever thing to do. While the political dynamics may change as the contents proposed by the Big 2 are clarified, I wish to put in my few cents on what must be included in any proposals to review Kenya’s young Constitution and it should not include.

First a warning. The public is supportive of the referendum on the naive premise that it is intended to resolve the cost of government which many, again naively, assume is the cause of Kenya’s fiscal crisis. Nothing could be further from reality. Any student of history will tell you that proposals for reform by politicians can never be about reducing space for political and bureaucratic jobs; these tend to be necessary for political payoffs and they create space for accommodating the largest number of political actors. For the political establishment, the focus will therefore be on expanding the executive and finding political space of the best loser in the Presidential polls, ostensibly to ensure national unity and strangely, adding a third devolution tier.

Exacerbate them

Truth be told, none of these changes will resolve Kenya’s fundamental problems and some will even exacerbate them. Those outside the political establishment who support a referendum must therefore define very early their “irreducible minimums” and publicize them lest they get yoked with politicians in an anti-progress ride.

I wish to suggest three irreducible minimums, two being inclusions and one exclusion. On inclusion, I propose that any review that does not include reduction in size of the legislature at the national and county level must be rejected. Several permutations have been bandied around. Without being unduly prescriptive, my view is that however the national legislature will be organised it must be reduced from the current 420 to a maximum 150 representatives for both houses, and a MCAs reduction from the current 2,200 to maximum of 1,000, including all nominations for special interests. The gender equity issue must be resolved through elections that lead to women representation and not nominations. At the national level, one proposal would be to reduce the number of constituencies and then have a woman and man elected for each constituency.

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The other irreducible minimum is enhancement of the revenue share for counties. This can be done by retaining the current 15 per cent but basing it, not on the audited accounts as currently framed, to a percentage of the previous year’s approved budget. The other option is to retain the audited accounts as the basis but enhance the minimum percentage to not less than 30 per cent. The Constitution must also provide penalties for government officials who violate constitutional edict by refusing to transfer County allocations to them. The current situation where Treasury functionaries send money to Counties at their whim is unacceptable. Naturally all must be done to ensure reduced wastage and theft at County level but I am convinced that stoppage at this level is more viable than at the national level.

Finally, on what the review must not include. This proposal to create a third tier of government is ludicrous. At a time when we are reducing the size of government why would one want to create another level of bureaucracy and what exactly would be its role?

If we believe there is merit is reducing the counties so that they are viable (an idea which I support but which is politically impossible to implement) then let us merge counties to not more than 16.

Creating a further tier just creates more Lords and Ladies and another level of wastage and conflict. Progressive constitutional reform has never been defined by politicians. It behooves Kenyans of good will to think of more irreducible minimums and direct this train even as politicians input their favorite themes in the mix.

- The writer is an Advocate of the High Court of Kenya


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