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Referendum workshop Pt. 1

A few weeks ago I attended a workshop on the proposed new constitution that was sponsored by Friedrich Ebert Stiftung. The forum was free and open to the publc. The workshop focused on 6 thematic areas of the new constitution – Representation, Women’s Issues, Devolution, Land and Natural Resources, Media, Executive Powers and Youth. The aim of the workshop was to look at the Wako draft in light of what the different stakeholder (I hate this word but you can’t avoid it) groups involved in Bomas wanted and in light of the current constitution. What follows are some notes I took at the workshop.

– I’m really glad I attended the event. Actually had a warm fuzzy feeling about it…it’s one thing to debate the referendum in cyberspace/online forums and another to engage in these issues in person. OK maybe I just love politics. Wish it could have been webcast or something…we’ll get there eventually. The event was well-organized, the debate and the information conveyed was substantive, the issues live (and even sobering when they are discussed in a non-banana/orange manner), the Kenyan audience both impressive and hilarious in the way that only Kenyans can be (we are really verbose people…for real) complete with the occasional odd-ball character who is annoying but you can’t really dismiss them because they make some sense even in their odd-ballness. I even got to sing the national anthem in public for the first time in ages!

– Attendance was really good. The room was already pretty much packed by 9:15 and was eventually standing room only.

– Had conversation with former mayor of Kisumu, Shakeel, he was sitting in front of me. He was supposedly behind the burning of copies of the constitution in Kisumu yesterday. He denied being behind it, but in the same breathe defended it as an act of protest because the constitution people are being presented with is a “prostituted version.” When I asked him what were his issues with the constitution he said it was like being told to drink a glass of water that was 80% OK and 20% poisonous – would you do it? He claims that the orange side’s beef is not even the PM issue but devolution, which is would have the most impact on the people at the local/village level. For instance, he said, if you look at KRA stats on revenue breakdown from 2002/2003 by region, definitely doesn’t match up with allocation of resources. Asked him what happens if the NO side wins. His response, we stick with the old constitution until 2007, NARC is voted out, and the merry-go-round starts.

– The first speaker dealt with representation. I arrived a bit late and was busy trying to get my hands on some handouts so I didn’t really take good notes during this session. The following is a summary of what the two drafts and the current constitution have to say on representation (cribbed from FES handout)

1. Current Constitution:

– Kenyans are represented by elected representatives on the basis of a first past the post system. There are 210 elected MPs and 12 nominated by political parties on the strength of seats won by each party.
– A simple majority and critical support in the provinces is required to win a presidential election (at least 25% of the votes cast in at least 5 provinces).
– Parliament is unicameral.
– All candidates for elctions must be nominated by a political party.
– Right to vote not constitutionally recognized and protected.
– Transparent ballot boxes not mandatory.
– The number of MPs is set at 222.
– Elections supervised by an “independent” Electoral Commission about by the President.
– The Attorney-General and Speaker are ex-officio MPs.

2. Bomas Draft

– Kenyans would have been represented by elected representatives based on a first past the post electoral system with special seats reserved for women and other groups.
– A decisive majority is required to be elected president. Over 50% of the votes cast and at least 25% of the votes cast in more than 1/2 the regions.
– Parliament would have been bicameral.
Independent candidates would have been allowed.
– Right to vote would have been recognized and protected.
– Transparent ballot boxes would have been mandatory.
– The number of MPs would have varied from election to election.
– Election supervised by independent Electoral and Boundaries Commission (3-9 persons)
– No ex-officio members although there is a speaker in addition to the other members.

3. Wako/Kilifi Draft

– Kenyans will be represented by elected representatives on basis of various electoral systems. The president will be elected by a first past the post system, while MPs will be elected on the basis of a mixed member proportional system (who’s workings no one seems to be quite certain of as far as I can tell).
– To be elected president, the candidate will have to get over 50% of the votes cast and at least 25% of the votes cast in more than 1/2 of the districts.
– Under the mixed member proportional system, special constitutencies will be reserved for women and minorities (see section 116). There will also be affirmative action quotas for women and minorities.
– In addition to the Speaker and the A-G, unelected ministers (Cabinet will be comprised of both elected MPs and unelected folks) will also be ex officio MPs.
– Parliament will be unicameral.
– Independent candidates will be allowed (see section 117).
– Right to vote will be recognized and protected (see section 54).
– Transparent ballot boxes will be mandatory.
– The number of MPs will vary from eleection to election.
– Elections will be supervised by independent Election and Boundaries Commission (see section 109 for details).

The recurring theme during the workshop was the 80/20 theme. 80% of Wako draft is OK, but 20% of it is completely against Bomas/the wishes of Wanjiku. For instance, under representation – Wako version has retained a lot of what was in Bomas e.g. you have independent candidates now (key for groups like women and the youth who have a hard time obtaining party nominations) and the right to vote will be constitutionally protected. But it’s done away with a bicameral parliament and has introducted a mixed member proportional representation that portents nothing but confusion.

Something that is problematic to me about both Bomas and Wako/Kilifi is the unlimited number of MPs – this is just a recipe for disaster. We could be operating with 500 goons instead of 222. The horror!!

Part II to follow….

12 comments to Referendum workshop Pt. 1

  • MsaniiXL

    Good read..great post.


  • Ambiguity in Kenyan ‘politics’ is nothing new. The Wako draft clearly takes the mantle of ridiculous ambiguity especially in your inference(s) above. Thank you for you aptness.
    My conflict and that of some, is we, (by we, I mean ‘stakeholders-as you hate that word) seem to defeat the very ideal of our struggles.

    For instance, chapter two-on Devolution section 6 of the Wako draft provides for two levels of government, National & District. Clause 2 upholds and guarantees distinction between the two yet the principal Taxman will be the State. Just how is it that we undercut the District level without giving it teeth to act or raise funds through taxation or whatever means they deem fit? Regional governments will have little, if any, to say about the distribution of wealth, by virtue of infrastructure, health and schools. In a way, we revert to the status quo which has yet to work for us all.

    A good example is the CDF. This, by all means is a noble endeavor but the horror and misuse by MP’s is not surprising. If elected District Officials have no control over such critical resources, they might as well succumb to the States arm twisting tactics in disbursing recourses and services. But then again, this might be addressed.

    If I may, what was the overview at the conference in this regard?

    Quip: Why has the bicameral legislature been opposed by a ‘certain’ elite since independence? Just wondering!:neutral:

    You are spot on as far as your thoughts on the lack of independence of the “districts” – I’ll address the devolution question shortly. Not sure why there’s been opposition to the bicameral legislature… the answer to that question would make a good research paper.

  • ditto msanii, very informative as usual:smile:

    Thank you!

  • JKE

    Only 3 comments so far? I was expecting many more to come on this important subject. Or is it because there isn’t much to add to OOs post here?

    Not sure why there haven’t been more comments…people have been expressing interest in the debate so I expected more comments (or maybe it’s the onerous registration process?)

    Ory – great post! Thank you very much.

    You’re welcome!

    As a german, I can only speak for my own country (yes, that Friedrich-Ebert-Stiftung belongs to Gerhard Schroeder’S party SPD – the social democratic party of Deutschland). Here in Germany, we have this fixed number of 598 MPs, although at the moment we have 614 MPs in parliament after the 2005 elections (due to some extra clauses in our constitution). 82,4 million people living here / 614 MPs = ~134k const./MP. And Kenya? 32 mill/222 seats = ~144k constituents/MP (is this correct and is it ok to look at it this way?).

    Yes, that’s a good way to look at it, I think it’s also worth considering the costs of having so many MPs – Germany is obviously in a better financial position. I’m really worried about this provision because I forsee a lot of wrangling around the numbers further down the road.

    I don’t know if a country needs so many MPs at the same time to get democracy running, but I for sure know that it wouldn’t make a difference if there were even less. In my country, we’ve successfully cut down that number from ~660 to 614 by now, and they are still to many. The democratic idea does not suffer if there are less MPs. Besides, do they really stand up and speak for us without any political games?

    For me it is very interesting to follow the discussions on the kenyan constituion and I really hope that Kenyans will take this chance to make it become their own.
    Ory, once again thx for keeping us informed and giving us a better view of the whole picture.

  • JKE, the reason I found Ory’s web rather intriguing, (bare in mind I’m unaware and perhaps ignorant of the context) is because she asserted the identity of her contribution as personal. That said, the acknowledgement of numbers by numbers does not necessitate approval. It is within her opinion and contribution that I think she finds acknowledgement. I know I would. Incidentally, the log in process is kinda mind-boggling not necessarily onerous.

    Quote: A man must be able to cut a knot, for everything cannot be untied; he must know how to disengage what is essential from the detail in which it is enwrapped, for everything cannot be equally considered; in a word, he must be able to simplify his duties, his business and his life.
    Henri Frederic Amiel: 1821-1881.

  • Good post. Can’t wait for the rest. I’m in the process of familiarizing myself with the proposed new constitution. Unfortunately, I don’t have the current one to compare things to, so this was great and I hope you will cover most topics in the same way.

    You can find the current constitution here http://www.kenyaconstitution.org/html/03c.htm

    Generally, and this may be the corporate American training, I’m inclined to vote yes on this constitution. Simply stated, it fulfills a lot of stuff. And I believe it’s a different war asking for a 20% change(after this constitution is implemented), versus a 100% change (current) to use Ory’s/general public opinion figures. Again, this is premature. I’m still reading the constitution.

    This was my initial thought, but the proposed constitution will be very hard to amend (I’ll probably discuss this later) and it will require a lot of support from a Parliament that has so far been unable to pass normal bills…achieving a consensus will be difficult. The other option is to amend via referendum, so Oranges and Bananas part II, III, etc.

    I’m completely opposed to those opposing the vote altogether, such as burning the constitution copies. People need to be educated on the current constitution and given the option to vote it down if they don’t like it. What’s important is to know it, understand it and let the majority win. They wanted democracy, now they need to live it!

    Very few people are in the “burning the constitution” camp. Most Kenyans are trying to understand the issues and are indeed living with the democracy they wanted.

  • M

    My random thoughts:
    1) The issue I take exception to most was the removal of the MP recall clause. I find it hypocritical of the MPs to make so much noise about impeaching the president and yet they have given themselves carte blanche to do as they please for their tenure in parliament. It’s a slap in the face of democracy for MPs not to be accoutable to anyone.

    The recall clause didn’t even survive Bomas…I think MPs (at the rate that they are currently operating) are on track to becoming much more lethal than a strong executive.

    2) Aminding the constitution to cater for those 20% of issues is not as easy as is made out to be. Some of the elements are just not easily changable, some have considerable ramifications on the budget, etc

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  • Steven

    Months late looking at this but the recent troubles in Kenya had me wondering about the political process. Your posts are excellent!

    Thanks for your good work.

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