FORD-ASILI’S POSITION ON BBI
First, we ask ourselves this question: Is Kenya ready for a constitutional change? Is it a constitutional moment?
If so, which way forward? Back the proposals? Reject in totality? Or engage to improve the report?
A national constitution, is a living and a sacred document which should not be tampered with at the whims of a few individuals, at least not at the eve of a general election, and, not when a country is so polarized. Constitutional amendments and reform process can cause disunity and is capable of triggering serious conflict in society. It is therefore critical that an all encompassing/inclusive debate is encouraged for purposes of improving and strengthening the current constitution and the BBI process.
It is crucial for the society to appreciate that referenda do not have three positions but TWO. This means that we can either belong to Yes or No sides, in which case the party resolve and the country should strive for a situation leading to a National Consensus. If not, think twice.
We choose to start from the premise that the BBI report is a good start. However, it can benefit greatly from further improvements set here below.
Ideally the constitutional review process should be conducted in a non-political season, it should not be close to a general election. This is to avoid partisan competing interests from clouding the process.
Any constitutional amendment must seek to enhance the provisions of the 2010 constitution, and not in any way dilute, erode, or take away any gains, rights, liberties and independence of constitutional offices. The proposed amendments should be driven by a sense of equity and justice.
There is need to publish a summarized draft in simple language so that Wanjiku may understand the provisions therein.
In 2009 and 2010 the NO proponents/ committees in the referendum were very loud about the issues they wished changed if they were to support the draft constitution. The famous and socalled 20% contentious issues raised by the NO proponents/ committees haven’t been captured in the BBI draft at all. The issues were many and included citizenship, sovereignty, ownership, right to life, family unit, reproductive health and equal religious freedoms among many others.
Historical injustices and rights abuses:
The draft does not provide for a way of fully implementing the Truth, Justice and Reconciliation Commission of Kenya report, which was submitted to President Uhuru Kenyatta on May 2nd 2013. It would offer a great opportunity towards lasting peace, national unity, dignity, healing and reconciliation among the people of Kenya:
At the core of Kenyans’ dissatisfaction and feeling of exclusion is lack of equitable distribution of resources. In fact, the perennial pre, during and post election violence is a manifestation of a sense of exclusion in the distribution of resources and cannot be cured by expanding the Executive and offering elective offices and appointments. The fear of ‘winner take all’ is the fear of marginalization by the winner in the absence of elaborate mechanisms of equitable and sufficient distribution of resources.
Furthermore, other than the 35% of funds to the counties, there is no evidence that the Ford-Asili memorandum presented to the BBI team on the 10th Feb 2020 was reviewed and incorporated into the final draft. This item appears to be one of those items played with as political baits.
We note with disappointment the intention to circumvent citizens’ sovereign will and power vide Article 1(1) of the Constitution 2010. The proponents of the BBI focus on eventual change of the Constitution through the involvement of county assemblies. A process which involves direct vote from citizens should not be subjected to the assemblies which are creatures of the same people. That beats referendum purpose.
Recommendations on Select Proposals
1. Insertion of new part 151 (2A) in the Constitution – Expansion of Executive through introduction of the office of the Prime Minister and two Deputy Prime Ministers. Provides that Cabinet Ministers may be appointed from among members of the National Assembly.
Given that the Prime Minister will be an MP, who is the leader of the largest party or coalition in the National Assembly, there are two likely scenarios:
- Where the winner is from the President’s ruling party, there’s the danger that it may not be inclusive since the winning party/coalition may be an alliance of two or three major ethnic communities, given that Kenyan elections are largely ethnic based (majoritarian ethnocracy)
- Where the biggest party/coalition isn’t similar to that of the President, you technically end up with a government of national unity – with the challenge of a PM overseeing government agenda he did not campaign for or doesn’t believe in. This may result in unnecessary conflicts.
Expansion of the Executive and creation of the office of the Prime Minister does not cure ‘‘the winner takes it all’’ scenario. Instead it creates an opportunity for the winner to ‘‘further lord it over’’ the losers by dishing out additional seats to his/her allies.
Power to dismiss: The threshold to dismiss the Prime Minister should be at least half the members of the National Assembly. The President should have no power to summarily dismiss the PM.
2. Insertion of new Article 172A in the Constitution – creating office of Judiciary
This proposal will undermine the independence of the judiciary, given that the office holder will be a presidential appointee:
- We propose this clause be deleted in its entirety.
- We further propose the strengthening of the Judicial Service Commission by increasing the number of civilian members who are not members of the bar or bench, to ensure the JSC is not heavily dominated by judges and advocates. These members should be vetted/competitively recruited by a committee of the National Assembly
3. Proposal to insert new clause 173(6) on Judiciary funding threshold
The sources of the Fund: are such funds not being less than one point five per cent of the revenue collected by the national government as may be provided by Parliament; and contributions and donations to the Fund from any other lawful and non-political source
4. Amendment of Article 97 of the Constitution on National Assembly membership
The report seeks to abolish the 47 women representatives, 12 nominated assembly members to represent special interests including the youth, persons with disabilities and workers.
This erodes the gains in the 2010 constitution.
In its place, it creates an additional 70 nominated seats to be shared via population density. There is no guarantee that the 70 nominated MPs via party lists will fulfill the gender requirements. Further, 70 is an arbitrary number for there is no justification or study that led to such a conclusion.
Our Proposal: retain the 47 women rep, and 12 special seats. Any addition to the number of National Assembly members should be to achieve gender equity.
Let us always keep in mind that, creation of nominated seats is manifestation of inequitable distribution of resources and therefore intended to appease marginalized /disadvantaged groups. The solution is equitable distribution of resources and opportunities. Once that is achieved the representation at the top can be substantially reduced. The establishment of nominated seats is to treat the symptoms and not the problem. The expansion of the Executive and nominated seats creates a wage bill which is not sustainable. The focus should be on the expansion of the national cake to allow bigger pieces allocated to the counties and by extension to the people.
5. Amendment of Article 98 of the Constitution- Senate membership
We propose that election of Senators be staggered like the US model, and that the term of a senator be six years.
Even as we welcome the idea on gender parity via each county having a female and male senator, we view this development as denying women full participation in the national Assembly. Senate should not be uniquely positioned as the Gender boiling pot of the republic. Instead of placing it in the constitution, let it be an affirmative issue that can be reviewed after a given period.
Senate should be responsible for vetting all presidential and public appointments including ministers, ambassadors and constitutional office holders. The National Assembly is currently conflicted because it has members of the executive in its ranks
6. Insertion of a new Article 107A in the Constitution – Leader of Official Opposition
To further enhance inclusivity, especially of opposition candidates with sizeable following, insert the below clause: This will also balance the winner take all arrangement
A presidential candidate who garners at least 5% of total votes cast in a presidential election shall be named an MP-at-Large; and may elect to sit at either the National Assembly or Senate
7. Amendment of Article 203 of the Constitution – equitable sharing of resources
Delete the proposed clause 1(n) in its entirety as it may disadvantage the less populous counties, which have suffered years of marginalization.
“the need to ensure that the average amount of money allocated per person to a county with the
highest allocation does not exceed three times the average amount per person allocated to a
county with the lowest allocation”
In our humble view, if Kenya can and follow through below herein proposals adopted, then the country would firmly and forever live in future as a peaceful, just and equitable nation.
Peace and Justice
1. That Peace and Justice is the foundation of any successful and prosperous State. That in a peaceful state all discussions including equity/justice and things are possible. That in view of the aforementioned, all presidential, gubernatorial, senate, national assembly, member of county assembly shall take an oath stating that they shall NOT propagate violence before, during and after elections. And that they will accept the results but be at liberty to petition the courts in case aggrieved by the results.
2. That the people of Kenya shall also take an oath that never again shall we raise our hands/arms against a fellow citizen before, during and after election. That any election dispute shall be lodged with the relevant courts. And that we shall hold any leader, officer or person liable for misuse of office, resources to manipulate electoral results. That this oath we shall take in churches, mosques, temples, shrines et cetera. The people shall buy white handkerchiefs as a symbol of peace and our country, to be tied on our wrists before, during and after elections.
3. That the relevant electoral courts shall also take oath that any dispute brought before them shall be adjudicated impartially and fairly and shall not be influenced in their decision making by any person or body.
4. That the IEBC shall take oath that they shall administer elections fairly and impartially and shall not take instructions from any person or body.
Equitable distribution of resources
In essence the Constitution 2010, BBI Report and other reports are about equitable distribution of resources. The fight for independence was about equitable distribution of resources. The challenge is to have the right remedies for the real problems.
We must correctly identify our problem to correctly propose remedy.
Our problem is about inadequacy/adequacy of resources and its inequitable distribution.
And therefore, if the problem is inadequacy of resources, the remedy is baking a bigger cake, protecting it from the corrupt and sharing it equitably. If that happens Kenyans will not care who is their leader. The proposal of expanding the national executive or the nominated members will not arise. Baking of a bigger cake requires commitment and therefore not all will be willing to take such an onerous job. It will be a job of service not looting. Let the job of leadership be onerous. Let it require vision and sleepless nights for the leader.
Let us set such high standards for leadership that leadership becomes unattractive and only for those who truly want to sacrifice their lives in service.
Let us create such high expectations of our leaders and hold them to account, that only those seriously cut out for the job to apply.
Let us choose from those who have proven track record of service.
Let those seeking leadership positions be subjected to vetting before independent and impartial tribunals.
Dispatched, by the authority of:
Chairman and Secretary General