Unpacking the National Dialogue agenda

The first is a set of outstanding constitutional issues. The cost of living has been wrapped up with Article 43 of the Constitution on economic and social rights.

It is clear that inflation or an escalating cost of living makes it harder for citizens to enjoy those rights.  If rents and mortgages are unaffordable, the citizen cannot access adequate housing. Without a way of paying for it, she cannot get the highest attainable standard of health.

The consideration should also extend to the chapter on public finance. Part 5 – articles 220-224 of the Constitution focus on budgets and spending, but no mention of how budgets are financed. One of the primary drivers of cost of living is deficit financing. 

Article 231 (3) gives central bank independence in the conduct of monetary policy. But there is no requirement that monetary policy – that is the level of money supply, and interest rates – be coordinated with spending plans.  As is happening now, you can end up with a mismatch.

To achieve the Treasury’s inflation target of no more than 7.5 per cent per year, the Central Bank has increased interest rates to slow down money supply, in the hope of reducing inflation. The administration, on the other hand, is increasing spending, resulting in a Sh720 billion budget deficit this year. 

Domestic borrowing is one step shy of printing money, and has the effect of increasing money supply, the very thing the Central Bank is trying to reduce. The spending plans set in motion actions that make it difficult to manage the cost of living effectively.

The next cluster includes implementation of the two-thirds gender rule, governance issues, promoting national unity and inclusivity in public appointments, as well as adequate checks and balances. Promoting national unity is one of the basic requirements of political parties at Article 91(c).

Arithmetically, it is difficult to have fixed single member constituencies, specify the total number of members of the assemblies, and still achieve the two-thirds gender rule via top-up. In the National Assembly, for example, no gender should have less than 117 members. The number of those nominated should vary to compensate when electoral results do not yield desired numbers. Better yet, we could switch to proportional representation.

Some of the governance issues relate to the lack of police reform.  In spite of Article 239, the service has retained its old character and culture, and is easily controlled by the administration of the day.

The adequacy of check and balances, in part, has to do with poor performance of constitutional institutions, particularly the willingness of their leaders to stand up to the administration of the day.  For instance, it is clear that the National Police Service should facilitate, not impede, enjoyment of the rights under Article 37.  Obviously, past, current and future administrations would prefer that citizens are not demonstrating.  They can avoid that outcome by performing to their expectations.  If they fail, the police should not come to their aid by suppressing the right of the citizen to picket.

Perhaps one of the most talked about but least understood issues are in the third cluster on electoral justice and related matters. Most commentators stop with the restructuring and reconstitution of the Independent Electoral and Boundaries Commission. But the issues are deep-rooted. As a senior industry leader observed this week, we have had the government of the day pick the commissioners.  We have had the political parties pick them. We have even had the participation of the religious sector and other stakeholders but still have not got it right! The reform must be fundamental, and should start with an in-depth audit. Boundaries delimitation is at the heart of equity as significant resources are shared on the basis of electoral units. The institutional mechanism for that sharing has been the subject of contestation in court. The outcome has consistently been that the various funds—the National Government Constituency Development Fund, the National Government Affirmative Action Fund and the Senate Oversight Fund—offend the principle of separation of powers.  The issue is currently framed as entrenching those funds in the Constitution.  If we were to revert to a parliamentary system, where the government is resident in the assemblies, the problem melts away.

There is a prevailing view that the winner-take-all nature of the pure presidential system is not working well for the republic.  The presidency remains super-powerful, and seems to suck all the oxygen in the room, to the detriment of other institutions of the state, likely because the President also heads the state.

Current ideas for a cure are the establishment and entrenchment of the office of the leader of official opposition, and office of Prime Cabinet Secretary. The latter is already operational but likely to face legal challenges. Methinks the logical solution is a return to the mixed presidential-parliamentary system.

Paying fidelity to political parties, coalitions and the law on multiparty democracy is key to enhancing the checks and balances contemplated in the third cluster of issues. Once safely in office, the current and past administrations have shown a disdain for political parties.

The second liberation was about a return to multiparty democracy.  But the parties have remained weak, ineffective and lacking in deep ideology. Not even public funding and the creation of the Office of the Registrar of Political Parties has cured the malaise. Creating legal mechanisms for preventing interference is critical for posterity. 

@NdirituMuriithi is  an economist