The give-and-take dance in ‘reggae Bill’

The abrupt postponement on November 19 of the BBI signature collection launch caught everybody by surprise. It was variously described by those involved as necessitated by a “delay” in printing due to last-minute “minor editorial changes”.

However, it was apparent the stoppage had been caused by the chorus from multiple interest groups that a “consensus” be worked out on contentious points in the BBI draft prior to the referendum. Reggae, of course, had not stopped.

With the commencement of the signature collection just a week later, on November 25, attention was naturally focused on what changes had been introduced to the document. Though the Constitution Amendment Bill (2020) retains most of the amendments proposed in the revised BBI draft launched on October 26, there are changes that are hardly “editorial”. Some are minor, others not so.

The earlier proposed multi-member constituencies have been dropped in favour of the creation of 70 new constituencies. The principle underlying this is the equality of the vote and of representation. The benchmark has been calculated to an average of just slightly above 132,000 persons per constituency. The electoral commission is required to have the creation of the 70 constituencies formalised within six months of the passage of the referendum.

360 single-member constituencies

In all, there will be a total of 360 single-member constituencies in the National Assembly. In addition, the Bill proposes top-ups for women seats if the one-third gender threshold is not attained through the 360 elected seats. The affirmative action window will apply for 15 years.

The top-ups will surely shoot up the number of MPs to levels never seen before. This will be an added burden hard to sell to Wanjiku. The nomination of the top-ups will be according to the overall vote a political party secures, not by the number of elected seats as before. There will be four more MPs representing people with disabilities, and two representing the youth.

The equality of the vote is an undeniably vital element of democracy. Yet this could have been achieved by downsizing representation in a proportionate manner. Anyway, with the BBI train having already taken off, it is too late to reconsider these burdensome numbers.

On November 17, President Kenyatta held talks with religious leaders. They raised concerns over the expansion of the Executive (which now brings in deputy ministers) and Parliament, and also the Independent Electoral and Boundaries Commission (IEBC) and the Judiciary Ombudsman. Their proposal for a National Constitutional Conference harked back to the circular, interminable circus of Bomas 2005. Given the tight timelines, that would essentially stall the BBI process. That proposal for a consultative conference was apparently ignored, other than a face-saving reiteration last Wednesday by the President of the Almighty’s supremacy in the BBI Bill’s preamble.

Nonetheless, the clergymen won a major concession in having the IEBC delinked from political parties. Recruitment will remain as per existing legislation. But there is a twist: in the BBI Bill, the dispute resolution function in respect to nominations of candidates by political parties has been yanked from the commission and handed to the Political Parties' Disputes Tribunal.

Deputy President William Ruto has been loud in the chorus for “consensus”. Even after the signature collection drive had kicked off, he was still tweeting that a "non-contested" referendum was possible. The Speakers of the Nandi and Kericho county assemblies, where he draws a lot of support, now want to seek a Supreme Court advisory on whether county assemblies can amend the BBI Bill. However, legal experts are agreed that is a tall order.

Some of the concerns Ruto and the clergymen raised have been addressed somewhat, or papered over in the Bill. The Judiciary Ombudsman will remain an appointee of the President, with vetting by the Senate. The only nod offered to the critics is that he won't be a voting member of the Judicial Service Commission.

Public rebuke

Division of Revenue to the counties has been reverted to the Senate. But left unchanged is the key clause on equity in revenue sharing: “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.”

However, the proposed Kenya Police Council, whose independence raised hackles as it was to be chaired by the minister for security, has been dropped and the National Police Service Commission retained.

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Uhuru Kenyatta’s recent public rebuke of DCI George Kinoti was most unfortunate. Mr President, are the post-election violence (PEV)-afflicted areas enjoying peace or a fake peace? Is there reconciliation? What about justice? Is there property that remains illegally dispossessed? Eh, can there be forgiveness without remorse and restitution?

The utter panic from familiar quarters after Kinoti spoke was unsurprising. The cover-up suits them and more so the unspoken political blackmail the PEV victims live under. I doubt Kinoti could have met the victims without the knowledge of higher-ups. If it was a political message being sent to somebody, just act without playing mind games on PEV victims. Please.

@GitauWarigi