Neither BBI nor debate on it is strengthening democracy

The BBI was born, via the handshake, out of a want of democracy: The difficulty that Kenya’s leaders have in conducting or supporting a credible election.

It is sad to see how little serious effort the BBI task force put into confronting this issue. No mention of rigged elections. But a suggestion that as far as possible, everyone (read every leader of a major ethnic group) should have an office – removing incentives to rig.

ELECTORAL MANAGEMENT BODY 

The BBI solution to the weakness of the IEBC is to change the model (now supposedly a genuinely independent institution) to one nominated by the parties.

Such a model normally assumes fairly stable parties. But here we know parties as unstable alliances of leaders and their ethnic support.

Today, politicians A, B, and C and their followers, as opposed to X, Y, and Z and their followers. Smaller communities are either attached to the ABCs or the XYZs, or found in smaller parties.

But tomorrow, A and B may be in bed with Y, and by election time, B maybe with Y and Z, and A back with C and also X. Meanwhile, if the ABCs and the XYZs nominated their candidates to the IEBC (renamed the EBC maybe?) by the time the elections come round, one major coalition may find that hardly any of “their” people are among the commissioners.

As an expert source says, “The presence of politicians in the EMB may undermine confidentiality in matters such as the security of ballot materials.

Multiparty-based EMBs also tend to generate dissatisfaction, especially among minority parties, which might be excluded from the EMB either because they are not represented in the legislature or because they did not participate in the negotiation that led to the initial appointments of EMB members.”

PARLIAMENT V THE PEOPLE?

Reactions to the report so far seem to be equally devoid of democratic principles.

The BBI report is a mishmash of rather commonplace observations on what ails Kenya, coupled with a lot of recommendations many of them to do what we (or government) are already supposed to do under the Constitution. About 30 proposals that would involve some change in the ordinary law, and eight or so that would need constitutional change.

We have the Speaker of the National Assembly refusing to allow it to debate the report – because it belongs to the people. The Constitution says that “The National Assembly represents the people of the constituencies and special interests”. A sad day when even the Speaker suggests that the interests of the people and the National Assembly are somehow at odds.

Those saying “people, not Parliament” are those who said “Support BBI” before we even saw it. Reliance on blind loyalty is hardly democratic either.

Their fear is that, as the Star put it, “Ruto MPs plot hijack of BBI via Parliament”. But this is not a document submitted to Parliament for it to adopt or not – like a parliamentary committee report. Agreed it would seem premature for Parliament to discuss changes in the law that may eventually come before it for debate and possible enactment.

CONSTITUTIONAL CHANGE OR REFERENDUM ROUTE

A referendum is required under our law if Parliament passes changes to the Constitution that affect certain core values and institutions of the Constitution (set out in Article 255). And, under the popular initiative (like Punguza Mizigo) - and then only if at least 24 counties approve, but Parliament rejects, the initiative proposal - there must be a referendum.

The most publicised BBI suggestion is a “Prime Minister” from Parliament who is the leader of government business, a member of the Cabinet who oversees the day-to-day operations of government.

This would need a constitutional amendment – at present an MP cannot be in the Cabinet. Similarly having some ministers at least from Parliament needs a constitutional amendment. Giving Parliament the role of approving the Prime Minister would need a referendum.

Making the best loser in the presidential election the Leader of the Opposition with ex-officio membership of Parliament would also require a constitutional change: How people get into Parliament is a matter for the Constitution. It would probably not need a referendum

Allocating at least 35 per cent of nationally raised revenue to the counties could be done by political commitment, maybe, but making it really binding would require amending the Constitution.

Indeed, since money and powers are supposed to go together, the counties ought to be given more responsibilities if they are to get more money. This would need a constitutional amendment – but not a referendum.

If the proposed Health Service Commission, and not counties, would employ doctors and nurses for county health facilities, and assign, promote, and transfer them, this would take away powers from the counties.

It would need an amendment to Schedule Four of the Constitution. It would perhaps not need a referendum – because it touches on county functions not “the objects, principles and structure of devolved government”.

And giving the national government a role in the management of Nairobi might be dealt with by agreement between national and county governments. But to take powers away from Nairobi by force of law would need a constitutional change. It might also need a referendum.

Handing over to party leaders the power to nominate by consensus IEBC commissioners to be appointed by the President would need a constitutional amendment. It would affect the fundamental understanding of how a commission is appointed. Because it affects the independence of a commission, it would need a referendum.

Taking the ethics function away from the Ethics and Integrity Commission (and giving it to the NCIC) would need a constitutional amendment because Article 79 speaks of one commission to deal with ethics and corruption. It would not need a referendum.

Probably expanding the powers of the JSC to discipline superior court judges would need a constitutional amendment and –because it touches on the independence of the judiciary - a referendum.

CAN A REFERENDUM BE A SUBSTITUTE FOR PARLIAMENT?

The people may have the final say on certain constitutional amendments, but only after the matter has been to Parliament. There is no avoiding Parliament.

But could the whole BBI report as it is go to a referendum? Probably so. The Elections Act says that whenever “it is necessary to hold a referendum”, the President must refer the issue to the IEBC.

There might be some uncertainty about what “…it is necessary” means. But the Act adds that there could be a referendum on some topic other than amending the Constitution.

The IEBC frames the referendum question(s) but they must be approved by the National Assembly. Finally, the IEBC has said a referendum could cost Sh12 billion. Public expenditure is to be approved by Parliament. It can block a non-constitutional referendum.

WHAT WOULD BE EFFECT OF SUCH A REFERENDUM?

A constitutional referendum is conclusive. But it is suggested that other referendums would not be binding – just advisory.

The only way for a document to compel anyone to do anything is to make it law. The only institution that can make law (leaving aside the popular initiative) is Parliament (and county assemblies).

Therefore, a referendum endorsing a document would not make it legally binding – unless perhaps Parliament put into law that a referendum could make law. They would hardly do that. And it would seem to be a terrible dereliction of duty if they did. Indeed the Constitution says the people have delegated their lawmaking power to Parliament and county assemblies. A court might hold it cannot be given back.

Therefore, a popular vote in favour of the BBI document as such would be, if anything, like a vote on a party manifesto – in an election: with political, not legal force.

The business community thinks BBI is good if it keeps the peace. Politicians and their games just interfere with their making money and (they say) developing the economy. So much for democracy!