National Dialogue Committee co-chairpersons Kalonzo Musyoka and Kimani Ichung'wah

National Dialogue Committee co-chairpersons Kalonzo Musyoka and Kimani Ichung'wah flanked by committee members present their final report at the Hilton Garden Inn on  November 25, 2023.

| Francis Nderitu | Nation Media Group

The case for fundamental reforms after talks

The violent suppression of cost-of-living demonstrations earlier this year left 72 people dead. Amid widespread condemnation, the regime toned down the hubris, chest thumping and insults with which it treated calls for reform and agreed to a national dialogue.

Throughout the process, some regime politicians denigrated the effort, claiming they were using the talks to manage the opposition. The private sector was cautiously hopeful. Kenyans waited.

As the talks progressed, they seemed to gain momentum, attracting submissions from various experts, political parties, private sector organisations, government departments and constitutional bodies. The Treasury Cabinet Secretary appeared twice, on the high cost of living.

But it was the Controller of Budget who stole the limelight, demonstrating how National Treasury mandarins manipulate the budget by overstating some votes. Her subsequent arrest and arraignment has all the hallmarks of retaliation and intimidation.

The outcome of the talks has been met with mixed reactions. Of the five issues, let us briefly examine three — the high cost of living, electoral justice and outstanding constitutional issues.

High cost of living

Inflation is mainly driven by food and fuel, which account for more than two-thirds of the total. We import both in large quantities. So when the shilling depreciates, it exacerbates the problem. Over the past year, the shilling has depreciated by 30 per cent against the US dollar.

Last month’s floods followed years of drought. Grain imports have risen by 20 per cent. But it is the 2023 Finance Bill that broke the camel’s back. The doubling of VAT on fuel, discriminatory property tax, sales tax and a host of other fees and levies have added to the already high cost of living.

The courts came to the rescue, striking down the housing tax on the grounds that it discriminated against those with formal incomes. Rather than abandon the issue, the regime has responded with a bill that seeks to cover citizens without formal income. It seems we are back to the hated colonial hut tax!

The national dialogue has failed to address the high cost of living. Despite many well thought out alternatives, the regime has stuck to its current policy mix of high taxes and high interest rates, loudly proclaiming that it will accept the consequences if the policy fails to bring down the cost of living. Well, you be the judge.

Electoral justice

There have been huge improvements since the disgusting first-past-the-post system of 1988. The return of multi-party politics. Electronic identification of voters and transmission of results. But problems remain. Votes are counted manually. It seems that the dead sometimes vote. And while transparent ballot boxes and counting at polling stations have reduced ballot stuffing and related mischief, the transmission and tabulation of results at both county and national levels is fraught with intrigue.

The presence of agents at polling stations has not eliminated the trust deficit. In fact, if the electoral system worked properly, there would be no need for agents. Instead, we have the absurd situation where taxpayers’ money is used to employ 420,000 officials to run the general election, and the individual candidates employ a similar number to ensure that the first group does not manipulate the vote!

The Supreme Court has already ruled that elections are not just about arithmetic, but about a process. Arithmetic still matters. The wording of the law has led to absurd interpretations. Who counts the presidential votes, the commission or its chairman? Is the returning officer of the presidential vote subject to collegial decisions or should he fly solo? The law also calls for an audit of every parliamentary election. The National Dialogue agreed to an audit, as well as to the reconstitution and restructuring of the IEBC.

Outstanding constitutional issues

Funds are popular with citizens and politicians alike, but they violate basic constitutional principles. The most prominent is the Constituency Development Fund. Other similar funds include the National Government Affirmative Action Fund, the Senate Oversight Fund and the proposed Ward Development Fund.

These funds are controlled, or at least directed, by parliamentarians and assembly members. But the choice of a presidential system of government in the 2010 Constitution means that the Executive is separate from the Legislature, and that the latter focuses on oversight as one of its key functions. It should therefore not implement or execute.

Both the regime and the parliament have tried to find a way around this constitutional principle. At the behest of the regime, parliament changed its standing orders to allow cabinet secretaries to appear in person in the house to answer questions. This avoids the unfortunate situation of the leader of the majority party attempting to answer questions on behalf of the government.

For their part, parliamentarians amended the CDF Act in an attempt to obscure the role of the MP. This was after the courts had declared the CDF unconstitutional. The matter remains unresolved. The two-thirds rule has not been achieved.

Both the regime and the opposition agree that these issues should be resolved. The regime believes that the matter should be dealt with in parliament. Azimio believes we should let the people decide through a referendum.

These three issues require solutions that go beyond rhetoric and grandstanding. Electoral justice requires a complete structural overhaul of the IEBC, not just changes in personnel. The high cost of living requires a fundamental rethink of the public finance structure. Constitutional changes require a popular mandate.

Such deep reforms require a very high degree of legitimacy. A broad consensus on reform is needed among politicians, religious leaders, the private sector and citizens. Agreement on the issues to be resolved paves the way for an uncontested referendum, creating a high probability of success. The regime would be well advised to seize this opportunity.

- NdirituMuriithi is an economist.