Kenya’s Elite-led ‘Popular’ Initiative Seeks First Amendments to 2010 Constitution

A constitutional amendment Bill recently launched elicited mixed reactions from Kenyans. A revised Bill addressing some of the concerns has now been registered for amendment through popular initiative. The revisions notably add provisions to ensure effective women’s representation, maintain an expert election commission, and abandon the removal of legislative confirmation of ministerial nominees. Nevertheless, the Bill could lead to a bloated executive and parliament, draining Kenya’s struggling financial coffers. While expected to be passed, the Bill must still cross knotty judicial, political and popular hurdles – writes Mugambi Laibuta.

President Uhuru Kenyatta and former Prime Minister Raila Odinga have unveiled revisions to a constitutional amendment Bill as part of the duo’s efforts to address what they consider constitutes a winner-takes-all politics. The proposals emerged out of the ‘Building Bridges Initiative’ following a thaw in relations between the two former political adversaries. The amendment sought to establish a complex semi-presidential system of government to ensure a level of power sharing among key figures in each election cycle. The proposed changes included an expanded national executive to include a prime minister and deputy prime ministers, enhanced the powers of the president, increased the number of representatives in parliament, created new constitutional funds and reduced the powers and functions of Nairobi city county. The Bill elicited mixed reactions. The draft Bill has since been revised to accommodate diverse views and it has been officially published to kickstart the amendment process.

The revised Bill maintains the critical shift to a semi-presidential system, but makes notable changes including a more effective way of ensuring gender representation. It abandons the proposed plan to include political representatives in the Independent Electoral and Boundaries Commission (IEBC). It is also now clear that the sponsors of the Bill will pursue the reforms through a popular initiative, which avoids the need to secure a two-thirds majority in the National Assembly, which could have proved difficult. While Kenya’s 2010 Constitution faces the first realistic possibility of amendment on its tenth-year anniversary, ongoing judicial challenges, the need to ensure buy-in from a majority of the counties and ultimately a popular referendum still pose formidable hurdles.

Popular initiative to constitutional amendments

The promoters of the Constitutional Amendment Bill, 2010 (Bill) have opted to have the Bill processed through a popular initiate provided for under article 257 of the constitution, and have launched the signature collection process. The Bill requires supporting signatures of at least one million voters. Once this threshold is achieved, the IEBC would submit the Bill to the 47 county assemblies for debate and approval. A majority of the counties must approve the Bill to move it to parliament (National Assembly and Senate). The Bill will require a majority of votes from each of the two parliamentary houses. If either house fails to pass the Bill, or in relation to entrenched provisions upon approval in each house, it will be submitted to a referendum. A valid referendum requires 20 percent turnout in at least half of the counties, and support by a simple majority of the citizens voting in the referendum.

There is a potential hurdle to the popular initiative process. Recently, the counties of Nandi, Kericho and Makueni petitioned the Supreme Court seeking an advisory on how to consider and process a Bill to amend the constitution through a popular initiative. The three counties want the Supreme Court to clarify, among other issues, whether the county assemblies when considering the Bill should undertake public participation; whether the county assemblies may amend the Bill in line with contributions from members of the county assembly and views from the public; what ought to be the threshold in voting for the Bill in the county assembly; what should  be the procedure at the National Assembly and Senate when considering the Bill; and how the referendum question in relation to the Bill ought to be formulated. The second hurdle is that parliament is yet to debate and pass a proposed Referendum Bill that may potentially address the issues raised by the three counties at the Supreme Court.

A more inclusive but bloated parliament   

The revised Bill maintains the proposal to have 360 elected persons at the National Assembly (up from 349) and 94 elected representatives at the Senate (up from 67) for a country of about 51 million inhabitants. The revised Bill sees the return of representation of persons living with disabilities and youth at the National Assembly, but not specifically in the Senate. Accordingly, there will be four members, being two women and two men, representing persons with disabilities, and two youth members, being one woman and one man. Persons with disabilities and youth representatives had vowed to oppose the Bill if it did not provide for their representation.

In addition to the proposed 50 percent representation of women in the Senate proposed in the original Bill, the revised Bill also provides more effective means of addressing the perennial question of lack of fair women’s representation in the National Assembly. Special top-up seats would be allocated to ensure compliance with the constitutional principle that no more than two-thirds of the membership of the National Assembly are of the same gender.

The top-up system could encourage parties to exclude women from elected seats.

However, this might pose a challenge after the elections. The Bill proposes to have the IEBC ensure the two-thirds gender rule. Nevertheless, this is unlikely to result in the required gender representation. Due to the first-past-the-post electoral system, in a worst case scenario, it is possible that all the 360 elected members of the National Assembly might be men, which  would necessitate appointment of 180 nominated women to ensure gender balance is achieved.

In recent years there have been numerous proposals to address the gender quotas at the National Assembly.  The proposed top-up formula in the revised Bill mirrors what happens at the county assembly, save that the numbers at county assemblies are relatively small. If the Bill is passed, it will be interesting to see how political parties will navigate the requirement to present party lists that meet the gender quotas. In fact, the top-up system could encourage parties to exclude women from elected seats.

Kenya’s economy is in a recession due to COVID-19.

Beyond the increase in the number of political offices arising from goals towards inclusion, the Bill proposes to create 70 new constituencies for the National Assembly. Twenty-eight out of 47 counties will at least get one or more new constituencies, with Nairobi county getting 12 additional constituencies.  The allocation of additional constituencies among the counties prioritises those underrepresented in the National Assembly based on population size. Representation is proposed to be increased to ensure that the number of inhabitants in a constituency is as nearly as possible to the population size.  

The proposed expansion of the parliament offices would come on top of a bloated semi-presidential system. Kenya is currently facing a recession due to COVID-19. A World Bank report shows that Kenya’s GDP has shrunk between 1.0 percent and 1.5 percent in 2020 and the debt to GDP ratio has risen to 65.6 percent of GDP as of June 2020, up from 62.4 percent of GDP in June 2019.  In view of the grim economic numbers, questions arise on the prudence of pushing for constitutional reforms that will culminate in an expensive referendum and expanding the legislative and executive branches.

Maintaining an expert IEBC, legislative approval of ministerial appointments

The revised Bill has abandoned a few controversial proposals. Notably, the proposal to include political party representatives in the IEBC, which would have politicised its work, has been dropped.  Furthermore, the proposal to give the President exclusive powers to appoint cabinet ministers without parliamentary approval was also left out. The parliamentary confirmation of ministers was a crucial process introduced in the 2010 Constitution to check the overbearing presidency.  

The revised Bill also dropped the proposal to transfer key powers and functions of Nairobi city county to the national government. The initial proposal was highly controversial as it would have meant the county would receive less resources and it would have elected leaders dealing with perceived pedestrian functions.

The clause on responsibilities of citizens, including to serve in the defence of the country that sought to introduce conscription into the Constitution, has also been dropped.

A new Constituency Development Fund

In addition to the ward development fund proposed in the earlier version of the Bill, the revised Bill proposes to establish a constituency development fund. The fund is touted as one to facilitate performance and implementation of development priorities set out in the national budget within the constituencies. The addition seeks to strengthen support of members of the National Assembly. Elected members of the Assembly would have a say on which projects within their constituencies the fund would support. In previous years, the fund created through statute has been subject to challenges with regard to its constitutionality. The argument has been that members of the Assembly must not carry out both executive and oversight roles. Having the fund constitutionalised would settle this argument.

Moving forward

The revisions to the Bill may attract support from some who previously opposed the amendments. The promoters of the Bill will most probably get the requisite one million signatures in support of it. How the county assemblies will vote on the Bill will be interesting to watch. If it does reach parliament and a referendum is held in mid-2021, Kenya will be during a heightened political environment considering the next general elections slated for 2022, which could affect the referendum in unexpected ways.

With a petition for an advisory opinion on the referendum process still at the Supreme Court and the petition against proposed constitutional amendment still pending at the High Court, there could be a few spanners in the works that may slow down or even halt Kenyatta and Odinga’s quest for constitutional reforms.

-------

Mugambi Laibuta is an Advocate of the High Court of Kenya. He worked with the Kenya Committee of Experts on Constitutional Review and has been involved in constitutional review processes in South Sudan, Somalia and Chile.