Raila-Ruto talks proposals will not end Kenyans' political, socio-economic problems

National dialogue committe co chair Kimani Ichungwa and former vice president Kalonzo Musyoka after signing the Bipartisan talk agreement. [Dennis Kavisu, Standard]

A critical task facing the 13th Parliament is the examination of the National Dialogue Committee (NADCO) Report, much like how its predecessor, the 12th Parliament, handled the Building Bridges Initiative (BBI).

The inception of the NADCO process followed Azimio-led mass demonstrations after the coalition’s 2022 presidential ballot challenge. Hence the establishment of a committee with the mandate to facilitate dialogue, consensus-building, and recommend electoral, governance and socio-economic reforms.

This analysis delves into whether the NADCO negotiations effectively tackle the aforesaid challenges.

The task force’s agenda included the restructuring and reconstitution of the Independent Electoral and Boundaries Commission (IEBC), boundaries delimitation, audit of the 2022 presidential election, economic and social rights under Article 43, the cost of living, implementation of the “two-thirds gender rule”, and constitutional entrenchment of various funds and offices.

Kenyans’ primary expectations were that the inter-coalition dialogue would tackle the high cost of living, deliver justice for victims of police brutality, and uphold Article 37 rights of assembly, demonstration, picketing, and petition.

While the Kenya Kwanza Alliance (KKA) administration opted for incremental governmental policy execution to mitigate high cost of living, solutions proposed by the opposition, private sector, and civil society, such as reducing taxation or commodity prices, were deemed impractical.  However, Azimio did not prioritise the cost of living as a decisive bargaining chip or deal breaker.

NADCO did acknowledge issues of human rights violations, violence, and police brutality, referring them to the informal institution of the Principals. Attention to this grave matter has waned. Many matters discussed during the NADCO meetings align with administrative questions like reducing government wastage through budgetary adjustments which, therefore, are within the ruling government’s purview.

Kenya’s anti-corruption efforts are not actually hindered by legislative inadequacy, as demonstrated by the country’s early ratification of the UN Convention Against Corruption. Therefore, NADCO’s recommendation to fast-track anti-corruption legislation is deemed insufficient in combating graft, especially when sleaze cases are frequently withdrawn without justification.

Additionally, NADCO suggests operationalising the Public Benefits Organisation Act of 2013 to empower civil society organisations in providing community services, prompting inquiry into why the government allowed this law to remain dormant for a decade.

Furthermore, NADCO advocates for an audit of state-owned enterprises to assess their efficiency and sustainability, echoing the findings of the 2015 Abdikadir Parastatal Report, which recommended scrapping of entities making perennial losses and reliant on state subsidies.

Instead of transferring county functions from Regional Development Authorities (RDAs) to counties, NADCO suggests relevant county regimes appoint board members to serve in RDAs, highlighting recentralisation.

NADCO has also pushed for increase of county equitable share of revenue from 15 per cent to 25 per cent, while BBI and many politicians have proposed 35 per cent. Article 203(2) mandates a minimum of 15 per cent. The current administration can raise the equitable share without constitutional or legal amendments.

The NADCO Report recommends a comprehensive review of the national tax policy and taxation regime by February 2024 to alleviate tax burden on Kenyans and businesses. However, the government’s current tax measures appear to contradict this recommendation.

One uncontroversial area requiring constitutional change is the implementation of the two-thirds gender rule. While Article 177 mandates gender balance in county assemblies, conflicting positions exist for the National Assembly and Senate. Articles 27(8) and 81(b) stipulate, inter alia, that no elective body should have more than two-thirds membership of the same gender, but Articles 97 and 98 violate this rule.

NADCO proposes two solutions: adopting the county assembly formula or electing two women MPs from each county. However, the proposed Constitution of Kenya (Amendment) Bill, 2023 lacks provisions to amend Articles 97 and 98. Instead, it favours reviewing Article 91 to ensure political party nominations comply with the gender rule. This solution is untenable because nominees are only 12 (National Assembly) and 18 (Senate). NADCO avoids a real solution because expanding membership of Parliament would clearly require a referendum.

Attempts to correct this anomaly have previously failed due to patriarchy and myopia.

In terms of electoral justice, NADCO focuses on recommending a selection panel for IEBC commissioners with two government and opposition nominees each, and five unaffiliated members. Despite a temporary halt awaiting NADCO’s findings, a court reaffirmed the panel’s authority to continue recruiting commissioners.

Without a constituted IEBC, by-elections are pending, leaving several areas without representation. Any IEBC secretariat decision without IEBC commissioners’ guidance can be challenged for lack of legitimacy.

The delay in inaugurating the IEBC threatens a constitutional crisis, with the electoral boundaries review mandated by Article 89 set for March 2024 currently unattainable. NADCO recommends amending Article 89 to extend the review period.

Further and ideally, IEBC commissioners should be chosen by a competitively recruited independent panel without input from political competitors.

NADCO’s recommendations propose significant amendments to electoral law through the Election (Amendment) Bill, 2023. Without activating the Election Campaign Financing Act 2013, election commodification and monetisation will persist, allowing the rich to buy votes and subvert democracy. As long as state resources are used to influence elections, electoral mismanagement and conflicts will prevail.

Other consequential recommendations include revisiting the BBI’s executive expansion, particularly the creation of the office of leader of the official opposition and the prime cabinet secretary’s office.

In December 2022, the President sent a memorandum to parliament proposing the creation of the office of the Official Leader of the Opposition. The president’s strategy involved shifting political opposition from street demonstrations to parliamentary engagement.  Under presidential systems such as Kenya’s, the opposition operates within parliamentary committees.

Another key NADCO’s discussion point was the Prime Cabinet Secretary, which evolved into the office of the Prime Minister in the final recommendations. During the 2022 campaigns, the then-deputy president vigorously opposed the creation of such an office, terming it a “dynasties” invention and an unnecessary burden to the taxpayer.

Let’s take a trip down memory lane regarding the office of the Prime Minister:

The 1963 Constitution featured an influential prime minister who headed the government within a parliamentary system. The office was abolished in 1964 when Kenya became a republic.

In 2008, subsequent electoral conflict and pursuant to the National Accord, a constitutional amendment established the office of a non-executive prime minister and two deputies appointed from the National Assembly. The prime minister was to “coordinate and supervise the execution of functions and affairs of the government of Kenya, including those of ministers.”

Both the 2004 Bomas Draft Constitution and the 2009 Harmonised Draft Constitution featured the powerful position of a prime minister as the head of government with the authority to nominate ministers for appointment by the president.

However, the ill-fated 2005 Proposed Draft Constitution, defeated in the 2005 constitutional referendum, and the 2010 Draft Constitution processed by the Parliamentary Select Committee on Constitutional Reform, co-chaired by Uhuru Kenyatta (representing President Mwai Kibaki) and William Samoei Ruto (representing Raila Odinga), both recommended a pure presidential system devoid of the office of the Prime Minister. This was the case even after ODM in 2005 objected to the then Draft Constitution due to its “mutilation” of the hybrid presidential-parliamentary system.

Both the BBI and NADCO have sought to incorporate into Kenya’s constitutional structure the position of prime minister as was crafted in the National Accord and Reconciliation Act of 2008.

 The NADCO Report recommends the amendment of about 29 articles of the 2010 constitution. Given the BBI experience, if the NADCO’s constitutional amendment bill is processed through a parliamentary initiative and challenged in court, it is likely to suffer a similar fate as BBI. No wonder Azimio has insisted on a referendum.

From the above analysis, the NADCO initiative is largely a replica of BBI and does not serve as a solution to the county’s current political and socio-economic challenges. Crucially, as a country, to secure our transformation we should implement the current 2010 Constitution to the letter.

Prof Kibwana is a constitutional lawyer and former Makueni governor