It was the English-born, American political activist Thomas Paine who once said: “Society in every state is a blessing, but Government, even in its best state, is but a necessary evil.”
Since the report of the steering committee on the Building Bridges Initiative (BBI) was released, there has been heated debate on whether proposals in the document will make life tougher or better for Kenyans.
While some have decried the proposed expanded Government, the report's proponents insist that 'Big Government' will be a fountain of happiness for the millions of Kenyans yearning for a better life.
The BBI report, a culmination of the handshake between President Uhuru Kenyatta (pictured) and ODM leader Raila Odinga in early 2018, seeks to expand both the Executive and Legislature.
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In addition to the president and his deputy, the report proposes the introduction of the office of a prime minister and two deputy prime ministers. The PM will be in charge of Government business in Parliament thus abolishing the position of majority leader.
In the changes contained in the 204-page document, the office of official opposition leader has also made a comeback.
There will be 94 senators, an increase from the current 67 with every county expected to elect a male and female representative. The 47 positions of county woman representatives will be scrapped should the BBI proposals be made into law, while members of the National Assembly will increase from the current 349 to 360.
Counties will also start receiving at least 35 per cent as part of the shareable revenue from the Exchequer, up from the current threshold of 15 per cent. Members of County Assemblies will get a kitty similar to MPs’ Constituency Development Fund.
An arm and a leg
XN Iraki, a lecturer at the University of Nairobi, argues that the referendum (though not all changes will be subjected to a popular vote, as some will simply be handled through a legislative process), the salaries of new officials and their assistants, and cost of cars, offices and security might cost Kenyans an arm and a leg in the new constitutional dispensation.
"The other cost is the coordination of the many decision-makers. Remember, each will want to be heard and advance his or her agenda, and build a power base,” said Iraki, who is also an economist.
Bob Mkangi, a constitutional lawyer and one of the members of the Committee of Experts (CoE) that drafted the Constitution, said the cost of the new Government will undoubtedly be huge. "Whenever you introduce new constitutions, like when you are extending your house, you have additional cost factors to be borne."
Some of the items added when extending a house, the lawyer said, include additional locks or a fence just in case you are visited by a thief.
In the case of the 2010 Constitution, for example, the equivalent of the extra fencing and locks was the creation of independent and constitutional bodies such as the Salaries and Remuneration Commission (SRC). With the creation of more public offices, the SRC was to ensure that public and state officers' pay was in tandem with the prevailing economic conditions.
Unfortunately, critics say, this is yet to happen. Kenyan MPs, for example, remain among the highest-paid legislators in the world, beating even their peers in advanced economies, according to studies.
Whereas 'Big Government' is supposed to benefit wananchi, Scholastica Odhiambo, an economics lecturer at Maseno University, said political expediency has been the largest beneficiary.
"It is unfortunate that a bigger Government has not resulted in improved welfare of citizens. The opportunities for the commoner for employment and access to resources are still a tall order,” said Ms Odhiambo.
She noted that the Government had been bloated since the days of the Grand Coalition. "It was the largest and most cost-intensive," she said.
Former Mandera Senator Billow Kerrow said Uhuru and Raila, the masterminds behind the BBI report, were going back on their words. Both of them, he added, had at some point decried the high cost of implementing the Constitution.
On October 16, 2010, Uhuru, then the Deputy Prime Minister and Minister for Finance, is reported to have said: "The implementation of the new Constitution will pose a major challenge to Kenya’s economic development due to the huge pressure it is bound to exert on the Exchequer, amid high expectations from Kenyans.”
Today, said Kerrow, Uhuru is running away from his words. As for Raila, said the former Mandera Central MP, he has also employed double-speak and no longer staunchly defends the Constitution against mutilation.
"After the 2017 elections, he (Raila) coined the term ‘punda amechoka’ (the donkey is tired) in reference to the burden Kenyans bear to maintain the Government,” said Kerrow.
In early 2014, Kerrow said, the National Assembly, through a resolution of the House, established a working group to carry out a socio-economic audit of the Constitution under the auspices of the Auditor General. This followed concerns that the country was facing difficulties in financing the ballooning Government.
“The same Government now turns around to propose that the Executive be expanded and more resources be pumped into counties and tax holidays,” said Kerrow.
The BBI report proposes a seven-year tax holiday for small businesses. The foregone revenue in tax holidays, critics argue, would have been used to provide critical public service.
Proponents argue that giving tax holidays to small and medium enterprises will leave them with additional cash to expand their businesses and create more job opportunities.
Kerrow, who once served as shadow Finance minister, said an expanded Executive will increase public expenditure significantly and widen the budget hole thus pushing the Government to borrow even more.
Since 2003, the Government has sought to rationalise public service establishment to reduce its fiscal deficit, that is, the difference between what it spends and what it collects in taxes.
"It is the reason the Constitution capped ministries and limited the establishment of new offices, though these have been largely circumvented by this Government. The public will pay the price of higher taxes."
But Mkangi, who admitted that the question of cost was there even when they were drafting the new Constitution, said there might be benefits to justify this expenditure.
He recalled that the issue of cost was more acute when they writing the supreme law more than 10 years ago. The Constitution created many new institutions such as independent offices and the 47 counties. The courts and legislative instruments were also expanded.
"In fact, for us, devolution had not even come into place. So it was hard to justify the size of the sub-national governments,” said Mkangi. "There were all these questions, especially in terms of costing the bureaucracy that would enable these institutions to function effectively."
However, when the CoE did a cost-benefit analysis, Mkangi said they concluded that the benefits citizens would enjoy would outweigh the expenses. "If you look at the history, we were paying the price for not being generous in how we represent different interests and faces of Kenya. So we had to have wider representation."
He added: "There was also the price Kenyans paid for the Holy Trinity of Government–Executive, Parliament and Judiciary–not being quite effective in checking and balancing."
As a result, the CoE came up with a kind of fourth arm of Government comprising the constitutional and independent commissions. "It is what we mismanaged before that creates this very low trust environment. So we feel we need to have extra eyes and an extra fence," said Mkangi.
He acknowledged that they were naïve in the expectations they had in the commissions, especially the SRC. “We actually thought that with the framework we had given, and with SRC also checking institutions like Parliament, MPs could not increase their salaries."
According to Mkangi, the primary focus when writing the Constitution was not to expand the Executive to achieve diversity in terms of faces and interests. Instead, Kenyans then were thinking in terms of separation of powers and checks and balances among the various arms of Government.
But the ground has since shifted. While such political consideration are still relevant, Kenyans care more about bread-and-butter issues. There is also a general feeling that the expanded Government has not lived up to their expectations economically.
"Unfortunately, the current administration has not presented itself in a way that makes wananchi feel that the Government is very, very important in our lives,” said Mkangi.
Even before the Covid-19 outbreak, he added, discontent over the lack of job opportunities and corruption in Government circles was growing louder. People were skeptical about the Government's role as a problem solver.
Mkangi reckons that the BBI steering committee will have a tough job educating Kenyans on how the extra offices and seats will have a direct bearing on their financial well-being.