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BBI part of the race for reforms and has its own weaknesses

By Kamotho Waiganjo | March 6th 2021

ODM leader Raila Odinga (c) with from right- Mombasa Governor Hassan Ali Joho, Likoni MP Mishi Mboko, Mvita MP Abdulswamad Shariff Nassir and politician Suleiman Shahbal. [Kelvin Karani, Standard]

As we head to what appears to be an inevitable referendum, we must also come to terms with the weaknesses of the BBI constitutional changes because they will inform future, inescapable, reforms. Let me re-state the obvious; as a reform proposal, BBI is generally acceptable. Its strengths far outweigh its weaknesses, which remains a pleasant surprise.

Because its principal promoters were in government, one expected significant claw backs. Any objective analyst will agree that no such fundamental claw backs exist. But it has weaknesses in three principal areas.

These are, the size and respective powers of both legislative houses, the gender question and the structure of the executive. To strengthen their narrative, opponents to BBI have generally overstated the size of legislature. The alleged numbers of the post-BBI legislature are said to be anything from 600 to upwards of 650.

In reality, the numbers are lower. A bit of mathematics is necessary to confirm this position. The Senate will comprise 94 members being one man and one woman elected from each county. Consequently there will be no need for any gender top up in Senate. In the National Assembly the geographical constituencies will total 360.

Assuming no woman is elected, we would need to nominate 120 women to meet the two thirds gender requirement. This makes the National Assembly’s highest possible membership to be 480 which when added to the Senate’s 94 totals to 574.

If you add the 4 slots reserved for persons with disability that makes the highest size of the combined Parliament to be 580.

This is obviously a high number of representatives for a small country like Kenya which still has an additional 2,000 or so MCAs. Of course this number will be reduced by up to 120 members if Kenyans elect more women and I have no doubt in my mind that capable women exist.

But even if we elect women and avoid nominations, the geographical constituencies are still too many. The next reform conversation must then involve a general reduction of constituencies while maintaining equity of representation through the population quota as provided in the Constitution.

Beyond the numbers question is the issue of functions. The Senate in Kenya’s legislative structure has always been weak. It has always seemed an afterthought, a forced concession. The BBI makes it even weaker despite the minor powers added like approving the Controller of Budget.

The major legislative powers will now be in the National Assembly where the PM, the Deputy PMs and Cabinet Ministers will sit.

The Senate will have no basis for any serious national agenda outside of counties. Even here most of the usually contested issues have been settled by the Constitution.

On the gender angle, at least the constitution now resolves the two thirds gender question in Parliament.

It is however unfortunate that in the two areas of ultimate executive power, the gender issue is totally ignored at the national and treated casually at county level where the only requirement is that a gubernatorial candidate “considers” the alternative gender as a running mate.

BBI’s final weakness lies in the new structure of national executive where the possibilities of dysfunctional government are most evident. While the President is elected through universal suffrage, the appointment of the PM and the Deputies are through the legislature. While there should be no issue if the elected President garners a majority of the seats in the legislature, there can be a crisis of monumental proportions if the President is a minority legislature President.

The President may then have to appoint a PM from a party which he defeated and this PM would then chair the President’s Cabinet and be the leader of the President’s business in Parliament despite running on a different platform!

While these issues will eventually be resolved through political settlements, they can lead to massive dysfunction and paralysis in the running of government.

So yes, BBI is generally positive and will resolve some of our governance issues including equity in resource allocation. But reforms are a marathon and it is evident that we are only in the first few kilometers of a long run.

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

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