The Referendum: A Boondoggle Or A Fundamental Rehabilitation?

It seems that the coming year, 2016, will be full of political activities because of the calls for a national referendum by both the Coalition for Reforms and Democracy(Cord) and the Jubilee coalition. With a clear sense of certainty, the changes to the constitution that was promulgated in August 2010 are imminent. 

Amendments to the constitution are needed and there is no doubt whatsoever on this. However, we need to ask ourselves certain pertinent questions before we deliberate if indeed a referendum should be given a go-ahead or not. In exploring the possibility of having a national referendum, two relevant and significant factors come into play. Firstly, the law itself will play a primary role by laying out the conditions that are supposed to be fulfilled before amendments to the constitution are made. Secondly, the financial costs need to be factored in the drive for making changes to the constitution; the opportunity cost of having and not having the referendum.

The Cord coalition has been pushing for constitutional changes since last year by drafting the Constitution Amendment Bill 2015 famously known as Okoa Kenya and they have won the first round of the battle by acquiring 1.4 million signatures and presenting the same bill to the Independent Electoral and Boundaries Commission(IEBC). The next task for the Cord team will be to take the battle to the county assemblies seeking to gain the support of twenty four of them. From the county assemblies, the bill will proceed to the National Assembly whereby if the amendments are adopted, the idea of a staging a referendum will be scuttled but if it won’t adopt the proposals, the matter will be directed to the electorate to decide on the changes.

The Jubilee coalition is also pushing for changes to be made to the constitution through its Boresha Katiba Initiative a move that is widely viewed as a counter-strategy on the calls by the Cord brigade. The proposals by the two coalitions seem to focus heavily on strengthening devolution, instituting a high sense of efficacy on economic governance as well as economic management and promoting ethnic equality. Cord’s proposals that are aimed towards sound economic governance, devolution and ethnic balance include the following: increasing the revenue allocation for the county governments by the national government from the current 15% to 45%, counties should be guaranteed 20% of the revenue from national resources within their jurisdiction, no single community should take more than 15% of the appointments of any state organ and devolution of some security functions. Its other proposal is the creation of the Ward Development Fund to be managed by the Members of the County Assemblies(MCAs)

The Boresha Katiba Initiative has the following proposals: increasing the revenue allocation to 46%, Cabinet Secretaries should be appointed by Parliament, devolution of the Ethics and Anti-Corruption Commission, no community should enjoy more than 20% of appointments in any government organ and that Constituency Development Fund(CDF) should be increased from 2.5% to 5%. 

The major hurdle is that the push for constitutional amendments will be used as a platform for political revival for Cord and an event for political survival by the Jubilee coalition. The proposals for the changes in the constitution will have two battlefronts, the county assemblies and the national assembly. The reason as to why I am classifying the 48 legislatures as battlefronts is because of the enticements and packages that they have proposed for the occupants of these legislative bodies.

Cord has promised the MCAs of instituting a Ward Development Fund should the amendments be made and being who they are, they will seize this opportunity without any further thinking. The Jubilee coalition on its side, has promised to increase the CDF allocation from 2.5% to 5% of the national revenue. What political arithmetic exactly led to such baits? It is the philosophical ‘tyranny of numbers’. Jubilee has the majority in the National Assembly and the proposal for an increment in the CDF seeks to galvanize the support among its members. Cord coalition knows that by having 24 governors on its side, marshalling support among the MCAs is necessary and to make things easier they had to include the proposal on the establishment of the Ward Development Fund. Approval by the county assemblies will be a plus for Cord while a successful making of amendments at the National Assembly will be a bonus for the Jubilee coalition.

In my opinion, the amendments need to focus on strengthening some of the institutions and the principles that govern their operations. One of the institutions that has to be looked at is the legislative body, at the national level and county level. The National Assembly should be properly down-sized to around 200 members from the current 390. The number of the wards represented by the MCAs should also be reduced but this ought to be done according to the population density of the given areas so as to avert cases where it takes quite a long time for people to access their services.

The Senate should not be scrapped off. Instead, it should be strengthened and made superior than the National Assembly. In fact, the Senate should be entrusted with the powers of approving presidential appointments, approving bills that have been passed by the National Assembly before their assent among other key functions. Reducing the number of counties is not going to be easier than it is imagined putting into consideration that Senators also have intentions of pushing for a referendum and that also the Governors can marshal the MCAs to thwart such efforts.

Most importantly, the Ethics and Anti-Corruption Commission needs to be made very powerful so that the looters of public funds can feel its cutting edge. The move to devolve its operations is timely in order to curb the rising cases of corruption in the county governments. The proposals to tame ethnic dominance in appointments to various state organs is welcome. This will ensure we have a situation of near-equal-representation among all the ethnic groups.

The proposals to increase the amount of national revenue allocated to counties is a wise move. However, for devolution to work effectively, there is need to have a lean, mean and clean staff in place. This implies that with the increment in the allocation, very tough measures on graft need to be designed and implemented and also reduction of employees who carry out similar duties has to be checked due to the high incidences of job duplication.

My take is that we should not have a referendum because of several reasons. One, the referendum will cost Kshs.8 billion and this will divert resources that are meant to spur economic growth and because the national debt is ever rising, the government will have to borrow funds to finance the referendum and this will further slow the economic progress. Secondly, a referendum will most likely intensify ethnic hatred between some communities given that the current administration has totally failed to steer inclusivity among the ethnic groups. Thirdly, heightened political activity is likely to hamper investment especially by foreigners. 

Constitutional amendments can be made within the confines of Parliament to avoid a slowly-paced economic growth but since it is driven by political forces a referendum can’t be whisked away. Our economy is held at ransom by the politicians who are opportunists and will of course use the referendum issue to gain political mileage.