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Why BBI proposals fail the test and must be rejected

OPINION
By Martha Karua | November 1st 2020

The proposed BBI constitutional Amendment Bill heralds the return of the imperial presidency that Kenyans rejected through the most consultative process, culminating in the 2010 Constitution. The BBI proposes that the president hires and fires the prime minister and two deputies at will. The prime minister will be from the majority party or a coalition of parties in the National Assembly, while the deputies will be from among members of the Cabinet. This proposal not only expands Cabinet, but also removes the requirement of vetting of Cabinet Secretaries by Parliament.

Title of Cabinet Secretary reverts back to what it previously was – Cabinet minister. Similarly, the titles of leader of majority changes to leader of government business, while that of leader of minority changes to leader of opposition. There is absolutely no value in these meaningless title changes. Efficiency in delivery of service is more about the matching of qualifications to the tasks than about semantics.

Rubber stamp

Appointment of minsters from Parliament severely compromises its independence and makes it a rubber stamp. Parliament’s cardinal roles of legislation, oversight and representation are thus weakened to a very large extent. The BBI team proposes in effect to constitutionalise the recent retrogressive encroachment of Parliament by the Executive.

It is further proposed that parliamentary political parties share out four out of seven members of the electoral body, whose name changes from the Independent Electoral and Boundaries Commission to Electoral Commission. This basically gives the major parties the power to determine who takes charge of electoral matters. This was tried in 1997 during the Inter Parties Parliamentary Group (IPPG ) reforms, but Kanu still rigged the ensuing polls, thus proving it is more about fixing the process than about who sits at Anniversary Towers. Let us learn from our history and end the fixation with personalities while we prioritise fixing the process. Individuals are transient. 

Setting aside 35 per cent of annual revenue for the counties is laudable. However, nothing stops this from happening right here and now. The Constitution fixes the lower ceiling at 15 per cent, but does not prescribe the upper limit. The Uhuru administration can indeed allocate 35, 50 or even 60 per cent of the yearly revenue if they have the political will to do so. Previously, in answer to the Raila-led Okoa Kenya referendum push a few years back, the Jubilee administration stated that the allocation to the counties was already at 35 per cent. If that be the case, why do we need a constitutional amendment or was this then an untruth?

Strengthening devolution does not entail encroaching on the mandate of the counties, like was the case in the rented health equipment scandal. Counties need cooperation, technical and other support and not interference. The BBI proposes to constitutionalise the takeover of Nairobi County by the Executive. This is an attack on devolution, which should not be taken lightly. It beats logic why we should have a county whose core functions are ceded to the Executive by the supreme law. The BBI proponents should be bold enough to propose the scrapping of Nairobi County all together, which appears to be their real intention.

The Constituency Development Fund (CDF) is a statutory not a constitutional fund, we can similarly have a Ward Development Fund without any constitutional amendment.

We have an elected National Youth Council and there is no problem having it constitutionalised. However, that alone does not provide an answer to the perennial challenge of youth unemployment. Of utmost urgency is a well managed economy, devoid of official corruption to spur growth, jobs and other opportunities for the youth and indeed all Kenyans.

To the women of Kenya, beware that the BBI seeks to institutionalise the position of deputy governor as the highest we can go. There is no provision that the running mate to a president be of the opposite gender, or that the president and prime minister be of the opposite gender. Top political posts appear off the ladder for women under the BBI proposals. Women appear not to be on BBI’s top agenda, but on its menu.

Lack of political will

Nothing except lack of political will stops the Jubilee administration from addressing the plight of health workers, some of whom the county governments have treated worse than casuals. The Government could have already and can re-hire the unfairly dismissed health workers, at the national level, to address the perennial shortage of health workers, especially since the Covid-19 pandemic outbreak. Nothing but lack of political will stops the Government from effectively fighting the endemic corruption, that diverts critical health resources even during a global pandemic like Covid. 

A health commission anchored in the Constitution cannot sufficiently address the plight of health workers or the myriad of issues affecting the health sector, in the absence of good governance. What we have is failure in governance not inadequacy of the Constitution or laws.

The proposals with regard to the Judicial Service Commission (JSC) are intentionally designed to undermine the Judiciary and make it an appendage of the Executive. Having an Executive-appointed ombudsman who sits in the JSC will not only intimidate the JSC, but also cow members of the Judiciary, thus undermining judicial independence. This is a relic of the dark days.

Ethnic antagonism has been magnified since the advent of the BBI, which appears tailor-made for the two principals to the exclusion of others, and especially those with a contrary view. The BBI has, in my view, contributed to increased intolerance and disregard for the rule of law, inter alia the right to assembly and association. If the two BBI brothers really care about promoting national unity, they must lead by example and promote utmost tolerance of all shades of opinion. Those for and against the BBI proposals must be facilitated to disseminate their ideas throughout all corners of our republic without any let or hindrance. Politics is about persuasion and therefore ugly incidents like those witnessed in various parts of the country, since the advent of BBI campaigns must not be allowed to recur.

Tool of political oppression

Abolition of the National Police Service and its substitution with a National Police Council amounts to politicisation of an already compromised police force whose upper ranks act on the whims of the Executive, rather than adherence to the Constitution. Having the minister of Interior rather than a civilian chair the police council makes the police more vulnerable for use as a tool of political oppression. This is one of the most glaring retrogressive proposals and a claw back on the democratic gains in our 2010 Constitution.

Economic and social rights provided for in Article 43 of the Constitution remain virtually unimplemented. These social and economic rights are a safety net for the vulnerable in society and thus ought to be implemented now, not later. Their implementation would mean access by all to quality health services, access to water, to affordable housing, education and adequate food. It would mean access to basic needs and improved quality of life for the weak and vulnerable in society. The BBI does not propose how to accelerate the realisation of these rights, but merely makes a suggestion that the Executive should make yearly reports on the progress.

Last but not least, an illegitimate Parliament, one that the Chief Justice, in accordance with the Constitution, advised the president to dissolve, cannot continue with business as usual. Like a player who has been shown a red card, Parliament can no longer play in this match. They must head home and let Kenyans elect another parliament that will be faithful to the oath of office, to respect and defend the Constitution.

As citizens, especially the women and youth, let us not be blinded by the promises coached in good language some of which can be achieved through administrative action and or legislation.

These are political baits. Let us instead keep our eyes on the ball and demand full implementation of the 2010 Constitution, in order to realise electoral justice, inclusion and to resolve the question of political divisions once and for all. On these issues alone, the BBI fails the test and must be rejected. 

The writer is Narc Kenya party leader and a former Justice Minister

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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