GHAI: More thoughts for committee implementing 10-point agenda

Much in the 10-point agreement and in the National Dialogue Committee report seems good - even common sense. Much of it is basically “let’s follow the constitution.” The constitution should always be the guiding - often even binding - document for government.

How sad that political pressure to follow the constitution must come from political party haggling. Or from popular demonstrations as in 2024 and 2025. This seems to show that the commitment of political leaders is far more to their own interests (individual and sectional, such as ethnic) than to achieving the vision of Kenya in the constitution: equal, just, accountable, democratic and, I think one could say, caring.

Last week I outlined my reflections on the main proposals to amend the constitution in the Nadco report and thus are part of the mandate of the Committee on the Implementation of the 10-point agreement between Kenya Kwanza and ODM.

My overall assessment of those proposals was that the thrust seems to be to benefit the political class. By the time you read this, I hope I shall have submitted to the committee a fuller document with comments on some other constitution-related issues.

Here are a few:

Too many elections on one day

It is true Kenya is very unusual in having six elections all on one day. Nadco recommends IEBC should take up the issue of staggering elections. This is the best way to do it, if the issue is to be tackled. Deciding how to split the elections (probably into two groups) would be very complex.

A conscious decision was made to have all elections on one day, including that of the president and Parliament. The intention was to avoid the risk of deadlock caused by the president being of a different party from the parliamentary majority. Many years ago, I wrote an article about Nigeria where state governors and state legislative agencies were elected a few days apart. For one state the outcome was that - between the gubernatorial and the legislative elections - a coalition fell apart and the state assembly was dominated by a party other than that of the governor. The assembly refused to approve any of the governor’s nominations for state executive members, and eventually the battle turned into impeachment of the governor - whose government was effectively paralysed. Decisions have consequences!

Extend Senate terms to seven years

Maybe it is not necessary to address this since it has been rejected by a parliamentary committee and less has been heard of it recently. It would of course reduce the number of elections on one day from six to five (except once every 35 years!).

But I am not sure what the point is and suspect it was designed to get the Senate onside ¾ senators were not to  have more powers but at least they would have more years to exercise their limited powers.

Our senators have less to do than those in countries like the United States, Australia and the Philippines, mentioned by the report. They do not have a second look at all bills - only those that affect counties.

The Senate in the US Constitution was designed as older (Senate comes from the Latin for ‘old’) and thus more experienced and more stable. There was some distrust of the House of Representatives. In Australia “The difference in the terms of senators and members of House of Representatives reflects the differences between them. Senators represent the whole of their state, a much larger number of people than members of the House of Representatives.”

I don’t find this very convincing. And here, (i) why does it not apply to county women reps? And (ii) our MPs and senators already have five years (whereas in Australia MPs have just three).

Regulations

The committee recommends that IEBC produce the regulations required under the Election Campaign Financing Act. The IEBC for 10 years has been in violation of Article 88(4)(i), which gives them the responsibility to regulate this issue.

But what to do about it? The Nadcoreport said the Statutory Instruments Act should be amended to provide that time limits for drafting regulations under legislation should be enforceable. And that anyone could petition Parliament with a proposal or even a draft if this did not happen.

Certainly, this is a serious issue  - not restricted to the Election Campaign Financing Act. In fact, absence of regulations is often used, I sense, to exclude failure to take legislation seriously - an example was the failure to take the Access to Information Act seriously because for some time there were no regulations.

The difficulty comes with devising effective sanctions. Who is to be held responsible? The IEBC chair? The collectivity of the IEBC? How? And, for example, what happens if Parliament rejects regulations? Is that punishable? Suppose Parliament has its own motives for rejecting regulations? I imagine they were not enthusiastic about the campaign financing regulations. And people already have the constitutional right to petition Parliament (Article 37).

The new IEBC, having been only recently formed, it seems questionable whether they will be in a position to produce regulations before August this year.

Merge certain commissions

The idea is to merge the commissions on Gender and Equality (Ngec), on Human Rights (KNCHR) and on Cohesion and Integration (NCIC). This may be not a bad idea. The constitution envisaged one commission that would deal with gender issues, broader human rights issues and be the ombudsman. It does not need constitutional amendment.

What scuttled the constitution concept, I recall, was essentially vested interests, especially in the existing gender commission. I suspect that this new suggestion might also meet similar resistance. Women are likely to argue that they fear gender issues will not get the attention they deserve in an omnibus commission.

This is not something to be rushed into, even if at first sight it looks like a good idea. Some sort of inquiry should be set up to study the achievements of the three agencies. Could they, in fact, be done by a single agency? How would law to achieve this be worded to ensure that which has been valuable in the work and experience of all three is not lost? What would be the benefits and the disadvantages of merging them (or two of them) in terms of finance, effectiveness of work, preservation of record and experience, etc.?

Constitutionalism and court orders

Point 10 of the agreement and the Nadco report deal with this question. The latter says the constitution says public servants must obey court orders and courts must impose sanctions if they do not.

It is surely obvious that people must obey court orders - even if it is equally obvious that they often do not. It is crucial that government agencies, and political parties, understand and comply with the constitution.

If fulfilling the Nadco report is something the government is committed to, then there is no need to change the constitution. The response must be “Just do it”: obey court orders, while appealing if you believe you have a good case.

Overall, the impression is that the body that produced the Nadco report was not always fully aware of what the constitution already says. And some of the issues need not only reflection on what the purpose of the constitution was, but also research and deep thinking about what the impact of proposed changes might be. Half-baked solutions will produce only constitutional indigestion.

If, as a nation, and especially the political class, we genuinely tried hard to implement the constitution as it is, we would have a clearer idea of what the real problems are and how to deal with them.

But I wonder how much politicians really care about these things, except those that concern themselves and their perks, including the CDF, which I have not discussed here.