FROM KATIBA MPYA TO KENYA MPYA

The new Constitution has been developed in a spirit of “for Kenyans by Kenyans”.  Now that it is in force, how much of it will benefit Kenyans will be the true test of the success of our efforts as the Kenyans responsible for the ushering in of this new Constitution.

In 1963 during the Lancaster process, Kenyans were represented by the elite of the day. They brought the different concerns that ruled the day, and they were able to have a document negotiated to suit all of us.  Surprisingly under the KANU regime all this was barstadised and we were left with a constitution designed by the ruling class for their own benefit.  This made it impossible for a level playing field to be achieved in all spheres of life, politically, socially, economically, culturally; the perfect breeding ground for all manner of ills to thrive.

The New Constitution in spirit has changed most of that, and its similarity to the 1963 document on many issues is notable.  One major similarity is the notion that some form of regional autonomy, to ensure that people had a say in their region’s progress and governance.  The new County system will address this to a certain extent, although the notion of autonomy is clearly ruled out by the size of the counties, too small to be viable on their own.  We no longer have the “Majimbo” of 1963.

How do we translate the spirit embodied in Uhuru Gardens all those years ago when our flag was raised for the first time, and bring it to today?  The new Constitution has wonderful provisions for every citizen.  The implementation of the Constitution right now is at the Institutional Level.  However, it is necessary for this to be extended back to Kenya’s citizens.  The number of times you hear “Tunaiomba Serikali iingilie kati” tells you, for the majority of Kenyans, change is still something that the Government ought to effect.  None sees it as their personal responsibility, which is given to the people by educating them on what is expected of them.  Many Kenyans voted for a new Constitution, few still understand what is in it.

It is time the Middle class of Kenya woke up from their stupor.  The power game in Kenya has been played mostly between the Super-Rich ruling class manipulating the very poor masses.  The formula is “POLITICS = MONEY + NUMBERS.   Therefore, those of us in the middle class feel we have neither the ability nor inclination to bother with politics.  The middle class has intellect.  We waste it being part of “Think Tanks” or “Strategic Teams”.  Time has come for us to take the fight to the Ruling Class turf.  The campaign by President Obama was successful because the working class took it upon themselves to set the agenda.  Why not us?  Why do we help people of questionable credentials in their quest for public office?  Individuals whose track record in their occupations is less than mediocre, how are they able to suddenly develop the policies to govern us?  Why are we satisfied to have gross incompetence be the trademark of our generation?

Nationhood is promoted if people believe they have a real stake in the country.  Right now, most people are trying their best just to stay alive.  Civil Society sets the tone for the legislative agenda by holding endless workshops and seminars whilst wananchi are oblivious.  It is time the real co-relation between governance and their daily life was made apparent.  Until now this means “vote for me and the road will be tarmacked.”  We must evaluate candidates based on track record, not future promises. That is why we buy insurance; the promise of safety “just-in-case”.

Up until this point in our Nation’s history, the common thread has been one of treachery, deception, betrayal, cunning, stealth and corruption.  Political parties are some of the most secretive organisations, whose workings are a mystery even to those in them.  Leaders make the most promises, and break them at will and whim.  Gentlemen’s agreements mean nothing; back stabbing is the order of the day. (Remember the infamous Kibaki-Raila MoU?)  This has percolated to society, even Sacco elections are marked with such intrigue, it is comical.  Once one is successful, then they do their best to reap the whirlwind.  Impunity goes all the way to the Mama Mboga, who overcharges you simply because you “look like money”, or a matatu tout who doubles the fare because it has started to rain!  Kenyans have bought the lie, that power is the only means to get and safeguard wealth.  That is why groups like Mungiki thrive, they gain power by terrorism, and use that power to extort.  

Someone needs to press control-alt-delete, and reboot this Nation’s psyche. 

The leader must be redefined as a servant, not a king.  The leader must be seen on a regular basis actually rolling up his sleeves and getting stuck in it.  Now that we have leadership all the way from the county assembly, we can start showing good governance from our local level, and capillary action will see it ascend to the top.   The participation of the citizen has to be not only at the stage of voting, but also in the contribution of ideas and expertise.  Executive Committees offer a great opportunity to do this.  With the introduction a few years ago of performance contracts, consequences must follow dismal showings.  Accountability must be a verb, not a noun in Kenyan vocabulary.

Change does not come from the Constitution as a document.  Indeed the document we have has grave shortcomings, oversights, and overkill.  Real change will come from Kenyans themselves having a complete change in attitude.  A paradigm shift that will see us reject the notion of mediocrity from our own dealings, and translate this higher standard to leadership.  We must each stand up to be counted, as our National Anthem so aptly puts it

“Let all with one accord

In common bond united

Build this our Nation together

And the glory of Kenya the fruit of our labour

Fill every heart with thanksgiving!”

Put up your hand if you are fed up with the 11th parliament already!

I said it before and I shall say it again, Kenyans passed a new constitution that did away with the notion of one man becoming a dictator, and instead exchanged it with a dictatorship by 350 people, namely, members of the National Assembly.  This is particularly worse in my opinion, because there is only so much guilt one person can handle before his conscience kicks in, or his heart stops beating.  Whichever way, once that one changes his mind or his ways, we are saved.  However, 350 people act like a mob.  Anyone knows if one dog attacks you, chances of you subduing him are high.  If a pack of two or more dogs attack you, find a tree and stay up there.  The pack mentality means, the timid ones feed off the energy of the high strung ones.  Those high strung ones get buoyed by the fact that the others are enamoured by them, and so showmanship takes over.  The evil ones, camouflage themselves in the argument, and advance their evil schemes hijacking the process to achieve their own malevolent ends.

We are to have a National Assembly with 350 members.  The recurrent expenditure is so high, that we are now faced with a real dilemma.  Seeing as Parliament has been left with all the major cards, of making budgets, approving expenditure, vetting Presidential appointments and other such things, no Parliament quite simply means no Government.  This muscle is what they are flexing, trying to force the rest of us to starve so that they may eat.  They don’t want a piece of the cake, they want the whole of it!  The hapless Senate is left to make protestations and try to assert their authority.  They then come to the realisation, they were given the car, the keys, a full tank, but the wheels were taken off.  They seem like they have work to do, but they are all dressed up with nowhere to go.  One member of the National Assembly even said “if the Senators have nothing to do, let them talk nicely to us, we will find them something to do!”  That was the weakness in our constitution making process in 2010.  The people responsible for making it happen, were themselves direct stakeholders in the same, and they took care of their interests to the exclusion of all others.

Chapter 8 of the Constitution establishes our Bi-Cameral House.  Article 97 sets out that we shall elect 290 MPs, 47 Women, 12 Special interest nominees and the Speaker.  Let us see what this means for Kenyans.  Already, the recent salary increase clamour for Teachers has meant that some projects will have to be scaled down, or shelved altogether, maybe the laptop project, maybe not.  There is also the possibility of tax increases to cover the same.  There are rumours of the re-tabling of the VAT Bill, and other means of Uncle Sam getting his pound of flesh.  Never mind we lose one third of our GDP to corruption and wasteful spending.  Now, in a situation where we have 350 Members of Parliament, it means current estimates of Kes 4 billion per year in salaries and allowances will go up.  Put this more accurately, that is more for office space, drivers, secretaries, security detail, offices, fresh flowers and all the Daily Newspapers delivered as of right to the new Constituencied and Constituency-less Waheshimiwa.  It does not take/require a genius to see that we cannot afford this, and more importantly, we do not want this.  So where do we go from here?

The New Constitution has tried to make the Executive lean and efficient by even prescribing the maximum number of Ministries the President must work with.  The intention therefore of Kenyans is not to have a larger Parliament, but to have a more representative one.  The 10^th Parliament was not famous for being sufficiently philanthropic to the ordinary Mwananchi’s plight, and apparently, neither is the 11^th parliament.  On this one, our hero must be an outsider.  Like Zorro did for the villagers in the movie, we may need an intervention so radical that will achieve what we want notwithstanding the members of the 11^th Parliament and their machinations.

My suggestion to get out of this quagmire is simply this.  The Independent Electoral and Boundaries Commission should use its powers to delineate the Constituency to be synonymous in size with the County.  Under the Independent Electoral and Boundaries Commission Act No 9 of 2011, Section 4(c)

4.   As provided for by Article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—

(c) the delimitation of constituencies and wards using appropriate technologies and approaches;

If we look at the Constitution of Kenya, then we see where this power originates from. Article 89 is specific on this power.  There is a proviso that the review should be completed at least 12months prior to the elections.  However, desperate times call for desperate measures, and I believe, if ever there was a time for the case to be made for Kenyans by Kenyans, it is now.   If we will have Wards,  each ward will have a Representative in the County Assembly.  This means that bread and butter issues of the Citizens will be dealt with closer to home: In the County Assembly.  Therefore the role of the Constituency of mwananchi representation is not central, Parliament’s role and structure has also changed.  A lean and mean parliament can do just as well as a bloated one, if not better.  A constituency should be delineated to become the size of the County for purposes.

Level Playing Field

This theory makes sense as well in the quest for free and fair elections.  Elections are hard fought in Kenya.  For them to be fair, everyone must be playing in the same arena.  Women Representatives, Governors and Senators seek their mandate from the whole County.  To level things off, members of national assembly should seek a countywide mandate as well.  Currently, a woman MP with the whole county behind her should have more clout than an ordinary MP in the current set up.  Why not round everything off nicely?  Each County therefore should produce one Male and one Female Member of Parliament, and we still retain the 12 special interest seats.  That way, the gender rule will be progressively achieved.  This means we will have a national assembly with a total of 107 members made up of 47 male, 47 female, 12 special interest group nominees and a Speaker.  Not only can we better afford 107 members, as compared to 350 members, the playing field will be levelled for all persons seeking elective posts, since they will have countywide support.

Given the vast powers that the National Assembly will have, it is vital for the people going there to have the widest mandate possible as is with the Senators.  Each Party only has to nominate one man and one woman to go on the ballot, and each stand equal chance of being elected.  It is time for the Members of the 11^th Parliament to wake up and smell the coffee.  We did not get rid of dictatorship by the President to swap it with dictatorship by Parliament.  We are not interested if some of them "lose" their seats since they are not theirs to keep, but ours to give to whom we please.  Time has come for them to put Kenya ahead of their own selfish interests and make the right decision for Kenya.  

However, we know they will not, since they are too interested in making the chairs more cushy for themselves.  That is why the Constituion availed the possibility of amendment of the constitution by popular initiative.  We need to get this idea down into a Bill, present it to all the County assemblies.  If at least 26 assemblies adopt it, then we present it to the national assembly.  If they decline to listen to our views and amend the law accordingly, then the IEBC will put the question to Kenyans in a Referrendum.  If the Kenyans adopt it, it stands so amended.  While we are  changing representation to the national assembly from the constituency to the county, we might as well also amend the constitution to give the Senate teeth over the national assembly.  They have clearly demonstrated they cannot police themselves, so time for us to go ahead and tell Senate to wield a whip over them.  These measures will not only save us some money, but will release what we need to move this country forward.  It is strike season already, we need to pay the teachers, and doctors, and nurses, and lecturers and civil servants.....

Haya Basi Tushatuliza, Kisha?

What do we do between 4/3/13 and 14/5/13?  This is one of the most oft asked question in follow up to my last blog post is, since we have such a long wait, what will be happening in the mean time?  There are few scenarios that would play themselves out, but instead, let us concentrate on the most likely ones.

I will start with the thought I left off on the last blog post.  We need to be more vigilant over who we vote for come the general election, especially those who will be in charge of the County Government.  Pay very close attention to who you choose for your Governor, since he is the first "president" you will have, incharge of your immediate domicile.  Also choose your county representative carefully, he will be the one who determines if the local primary school gets the extra classrooms it needs, or whether they will push for tenders to give themselves business.  As per the Constitution, the county government will be the primary service provider of governance for the common mwananchi.  This being the case, if there is no challenge to the election, the Governor and his county representatives should be sworn in within 14 days of the election.  This means, they will start the business of governance at least two months before the President takes oath of office.  The county government will have its own cabinet, referred to as Executive Committee, which will start the process of deciding how much we will pay to do business in that county, what we will need in order to have a good time in the local pub and such mundane issues.  if they so want, as stipulated in the schedule, they can even decide to have all dogs registered and the owners required to have collars for their mongrels.

We also must choose the member of the National Assembly carefully.  In passing the new Constitution, we did away with dictatorship by one person, and legislated dictatorship by 350 people.  One only see how powerful and unstoppable the 10th parliament was after the constitution passed.  They will vet all presidential appointees, they will decide how the 15% that is to go to Counties will be dished out (though thankfully there is a formula they must use to do this)  They will decide how the equalisation fund will be used.  They will make laws concerning the land.  In this vein, we must also look carefully at the choice of the Super MP.  This is who is commonly referred to as the Women's Rep.  She is the only member of the National Assembly who will have a countywide mandate rather than a constituency only.  These are the women who will be like free radicals in the house, the swing vote if you wish.  If we have an impressionable lot, we can be sure they will not do what sent them to the House.  Since the Senator's role is quite sedentary in the early days of government, we can pick the candidate we see potential in, since the role of Senator as per the Kenyan context is very unlike what we had post independence, and quite unlike what it is in other jurisdictions with bi-cameral houses.

We need to be extra careful who we choose to vote for, and how we conduct the polls.  If there is a fall out prior to the results being announced, the tensions will make it more difficult to await an outcome.  If the Presidential race is tense, we may find the county governments unable to operate because the politicians are still haggling over what will happen in State House.  In fact, we are in graver danger of the elected county reps and governors failing to start work, rather than the electorate revolting.  We need to ensure that we are vigilant enough to let them know, that they must start work immediately so that we are able to have a smoother transition.

What will happen after March 4th? On March 5th we will be back to work, since the Government only gave us one day off to go and vote.  The Governor will take over from the County Commissioner.  The assets and liabilities of the County will now have custodians, and so the process of sharing this out will begin.  Civil Servants will be re-deployed, and the big shift will happen.  The transition from the former constitution to this will be in its final stages.

One thing we must remember, violence needs opponents facing off.  If we refuse to face off physically, the transition should be interesting to watch and maybe even smooth.  The thing that should be consistent, is the obstinate refusal to yield to the temptation of running the streets to "agitate" for what we perceive is ours to have. We have prayed, we have talked peace, we have pledged peace and it is almost time to practise what we have been preaching.  As it says in Ecclesiastes 8, there is a time for everything and a season for every purpose under heaven.  This Election too, shall come to pass.

Tushatuliza, Kisha?

One of the most oft asked question in follow up to my last blog post is, since we have such a long wait, what will be happening in the mean time?  There are few scenarios that would play themselves out, but instead, let us concentrate on the most likely ones.

I will start with the thought I left off on the last blog post.  We need to be more vigilant over who we vote for come the general election, especially those who will be in charge of the County Government.  Pay very close attention to who you choose for your Governor, since he is the first "president" you will have, incharge of your immediate domicile.  Also choose your county representative carefully, he will be the one who determines if the local primary school gets the extra classrooms it needs, or whether they will push for tenders to give themselves business.  As per the Constitution, the county government will be the primary service provider of governance for the common mwananchi.  This being the case, if there is no challenge to the election, the Governor and his county representatives should be sworn in within 14 days of the election.  This means, they will start the business of governance at least two months before the President takes oath of office.  The county government will have its own cabinet, referred to as Executive Committee, which will start the process of deciding how much we will pay to do business in that county, what we will need in order to have a good time in the local pub and such mundane issues.  if they so want, as stipulated in the schedule, they can even decide to have all dogs registered and the owners required to have collars for their mongrels.

We also must choose the member of the National Assembly carefully.  In passing the new Constitution, we did away with dictatorship by one person, and legislated dictatorship by 350 people.  One only see how powerful and unstoppable the 10th parliament was after the constitution passed.  They will vet all presidential appointees, they will decide how the 15% that is to go to Counties will be dished out (though thankfully there is a formula they must use to do this)  They will decide how the equalisation fund will be used.  They will make laws concerning the land.  In this vein, we must also look carefully at the choice of the Super MP.  This is who is commonly referred to as the Women's Rep.  She is the only member of the National Assembly who will have a countywide mandate rather than a constituency only.  These are the women who will be like free radicals in the house, the swing vote if you wish.  If we have an impressionable lot, we can be sure they will not do what sent them to the House.  Since the Senator's role is quite sedentary in the early days of government, we can pick the candidate we see potential in, since the role of Senator as per the Kenyan context is very unlike what we had post independence, and quite unlike what it is in other jurisdictions with bi-cameral houses.

We need to be extra careful who we choose to vote for, and how we conduct the polls.  If there is a fall out prior to the results being announced, the tensions will make it more difficult to await an outcome.  If the Presidential race is tense, we may find the county governments unable to operate because the politicians are still haggling over what will happen in State House.  In fact, we are in graver danger of the elected county reps and governors failing to start work, rather than the electorate revolting.  We need to ensure that we are vigilant enough to let them know, that they must start work immediately so that we are able to have a smoother transition.

What will happen after March 4th? On March 5th we will be back to work, since the Government only gave us one day off to go and vote.  The Governor will take over from the County Commissioner.  The assets and liabilities of the County will now have custodians, and so the process of sharing this out will begin.  Civil Servants will be re-deployed, and the big shift will happen.  The transition from the former constitution to this will be in its final stages.

One thing we must remember, violence needs opponents facing off.  If we refuse to face off physically, the transition should be interesting to watch and maybe even smooth.  The thing that should be consistent, is the obstinate refusal to yield to the temptation of running the streets to "agitate" for what we perceive is ours to have. We have prayed, we have talked peace, we have pledged peace and it is almost time to practise what we have been preaching.  As it says in Ecclesiastes 8, there is a time for everything and a season for every purpose under heaven.  This Election too, shall come to pass.

Wakenya Tulizeni Boli. Bado Tena Bado Sana!

One thing I have heard over and over again is, "I cannot wait for March 5th, then all the madness will be behind us."  Whenever I hear this I cringe because for sure, it will not be over on March 5th, indeed, it will have just began.  Let me explain.

When we voted in the Constitution in 2010, in it were some very prescriptive detail on how we are to conduct our affairs.  This is one of the biggest criticism I have of our Constitution.  It wants to be Constitution and statute all rolled in one.  One of the most prescriptive parts of the Constitution are those that have to do with elections.  Given our history, one can see why the Committee of experts felt they should go into overkill.  However, in their responding to the emotion of the day, we are now saddled with a reality that few of us had anticipated.

Kenya has elections slated for the 4th of March 2013.  She is going to the polls to elect a whole new system of Government, a return to bi-cameral parliament, as well as the establishment of 47 Counties, each with its own County Government.  However, all those other positions being contested are eclipsed by the presidential election.  It is so hotly contested, that the election fever is now burning us literally with people becoming apprehensive of violence. I wish Kenyans would realise how long a wait we are in for, they would realise we cannot sustain this high tempo momentum for long, because it will take us all of three months to install a newly elected President.

When we go to the polls on March 4th, the Constitution gives the Independent Electoral and Boundaries Commission 7 days within which the results must be announced.  Of course nothing stops them from announcing earlier than the 7 days, but if they stretch it to the limit, this takes us to March 11th when the final results are declared.  Once they are declared, Article 140 indicates, that there is a 7 day period during which time any challenge to the results may be lodged.  Since multiparty politics resumed in 1992, each and every election of a President has seen a challenge in court, so I think it would be safe to assume, based on similar fact evidence, that this would be the case this time around too.  This takes us to March 18th 2013.

After March 18th 2013, if there is a petition in court, the Supreme Court has 14 days to make a determination on it, this would take us to 1st April 2013.  If they determine the President-Elect was not duly elected, Kenyans have to go back to the polls to repeat the election within 60 days, taking us to the 1st week of June 2013.  IF the decision is that the election was good and proper, we would be headed for a second round.  The reason for the assumption that there would be a run-off, is simple.  Again, similar fact evidence.  Since 1992, the President has been elected by less than 50% of the votes cast, except for 2002 when President Moi was no longer running and Kibaki was declared as a joint ticket presidential candidate under the NARC coalition.  This means the threshold of 50% +1 would be near impossible for anyone to achieve, given we have 8 Presidential candidates.  There is the additional hurdle of 25% in at least 24 Counties.  Even recent polls demonstrate, no single candidate has this locked down.

Back to my timeline.  On March 18th,2013, if the Supreme Court find the elections were fine, the IEBC has 30 days within which to organise and conduct a run-off.  This would take us to the 16th April 2013.  On the 16th April 2013, we go to the polls and vote in the run-off.  The IEBC have 7 days to declare the election, so for the sake of argument if they take the full 7 days, that would take us to 23rd of April 2013.  Once the results are declared, if there is no petition filed, the President-elect will be sworn in on the first Tuesday after the 14th day.  The 14th day is the 7th of May, since it is itself a Tuesday that would go to the 14th of May as the day the President-elect will be sworn in.

If there is a petition filed, this is how the scenario will play out.  After 16th April we take 7 days to wait for a petition, and the Supreme Court again have 14 days to hear the matter, a total of 21 days, 7th of May 2013.  Once a decision is rendered on 7th of May, we have 7 days to swear in the President, that goes to the 14th May 2013.

Kenyans, this means we have between March 4th 2013, and May 14th 2013 to have a new occupant of State House.  We need to be extra patient, and to let things play out as they must.  If we keep up this election fever we have, we run the risk of suffering permanent brain damage as a people, making it a catalyst for the eruption of fresh violence.  When we go to the polls, we better be prepared for the fact that a new President is actually three months away, and in the mean time we can concentrate on setting up our County Governments so that our day to day life is not disrupted.

God bless Kenya, and I wish all of you a wonderful Lenten season.  On March 4th, let us Get-Out-The-Vote and make our voices heard, au sio?