The Punguza Mizigo Bill (Constitution of Kenya Amendment), 2019. Salient Features, Strengths and Weaknesses

Table of Contents

1. Introduction

2. Salient features of Punguza Mizigo
2.1 Introduction of a very high standard of integrity for public officers and life imprisonment for corruption convicts
2.2 National identity card to be used in elections and referenda
2.3 Constituencies abolished
2.4 Abolition of allocation of party-list seats
2.5 Restructuring of the Parliament
2.6 Term of the Presidency extended to seven years
2.7 County assemblies and county executive committees restructured
2.8 Principles of public finance
2.9 Equitable share of revenue raised nationally increased to at least 35%
2.10 Membership of the independent commissions

3. Major strengths and weaknesses of the Bill
3.1 Strengths
3.2 Weaknesses

4. Concluding remarks

5. References

Abstract

This article unpacks the PUNGUZA MIZIGO (Constitution of Kenya Amendment) Bill , 2019. It discusses the salient features, major strengths, and weaknesses of the Bill before making concluding remarks.

AUGUST 2019

1. Introduction

The PUNGUZA MIZIGO (Constitution of Kenya Amendment) Bill, 2019 is a Bill to amend the Constitution of Kenya, 2010 according to the popular initiative under Article 257. Promoted by the Thirdway Alliance Kenya,¹ the Bill has one main objective: to amend the Constitution of Kenya, 2010 to reduce the burden and cost of governance currently being borne by Kenyan taxpayers.² Punguza Mizigo has already complied with Articles 257(4) and (5) that requires the draft Bill and at least 1 million supporting signatures to be delivered to the Independent Electoral and Boundaries Commission (IEBC) for verification. The IEBC has been satisfied that the above constitutional requirements have been met and submitted the draft Bill to each of the 47 county assemblies for consideration.

This article discusses the salient features, strengths, and weaknesses of the Bill. It is easy to read and understand and is meant to act as a guide for the MCAs to enable them to make informed decisions. The MCAs hold the key to the amendment by popular initiative because once the Punguza Mizigo has been passed by at least 24 county assemblies, even if the Parliament (Senate and National Assembly) fails to pass the same, the Bill would be submitted to the Wanjikus (people of Kenya) in a referendum.³ This reaffirms the sovereignty authority of the Kenyan people.⁴

2. Salient features of Punguza Mizigo

The salient features of the PUNGUZA MIZIGO (Constitution of Kenya Amendment) Bill, 2019, are explained below.

2.1 Introduction of a very high standard of integrity for public officers and life imprisonment for corruption convicts

The Bill requires all individuals mentioned adversely in public inquiries and audit reports to be barred from seeking and holding any public office. Furthermore, public officers who would be reported by the annual Auditor-General report having failed to account for public money would be required to vacate public office with immediate effect. Corruption cases would be tried in 30 days and an appeal concluded in 21 days. The Director of Public Prosecutions (DPP) and Director of Criminal Investigations (DCI) are empowered to use financial audit findings and forensic reports from the Auditor-General as the first piece of evidence in prosecuting corruption cases. According to the Bill, corruption convicts would serve a life sentence. All corruption convicts would not be entitled to presidential pardon or amnesty notwithstanding Article 133 of the Constitution.

2.2 National identity card to be used in elections and referenda

All Kenyan citizens who attain the age of 18 and acquires a national identity card shall be deemed to be fully registered voters for purposes of elections and referenda. The IEBC will no longer engage in the continuous registration of citizens as voters. Delimitation would only be on the wards and not constituencies.

2.3 Constituencies abolished

The Bill abolishes the 290 constituencies. It introduces a new Article 89(1A) requiring the IEBC to use the 47 Counties as single constituency units in Parliamentary elections to the Senate and the National Assembly, that would no longer be subject to review. In other words, constituencies are done away with and replaced by the 47 counties as single constituent units for Parliamentary elections purposes.

2.4 Abolition of allocation of party-list seats

The Bill deletes Article 90 of the Constitution. This article provides for the allocation of party-list seats to both Parliament and County Assemblies according to the proportion of the total number of seats won by candidates of political parties in the general election.

2.5 Restructuring of the Parliament

The Bill elevates the Senate as the Upper House of Parliament with veto powers. This means that the Senate would consider and review the decisions of the National Assembly and upon establishing that such decisions contravene the Constitution or goes against the public interest, reject or amend them.

The Bill proposes a composition of ninety-four members of the National Assembly consisting of one man and one woman from each of the 47 constituencies. The Bill does away with the 47 women representatives and 12 members nominated by parliamentary political parties.⁵ It proposes the addition of 6 members nominated from special interest groups taking into account the gender balance of one man and one woman in each of the categories under Article 100.⁶ This means the National Assembly shall have 100 members and the Speaker as an ex officio member.

The Senate composition is restructured by doing away with the 16 women members nominated by political parties, 2 youth members and the 2 members representing persons with disabilities. This means that the Senate shall be composed of 47 members elected by the voters of the 47 counties and the Speaker who is an ex officio member.

2.6 Term of the Presidency extended to seven years

The Bill proposes a single seven-year term presidency to be elected on the second Tuesday in August, in every seventh year.

2.7 County assemblies and county executive committees restructured

The Bill abolishes the special seat members and members of marginalised groups ie persons with disabilities members and the youth members of the County Assemblies.

It also abolishes the office of the Deputy Governor. Instead, it proposes the Governor to nominate one person from among the duly vetted, approved and appointed County Executive Officers, to be his/her Principal Assistant for purposes of administration. According to the Bill, in case of a vacancy in the office of a governor, the Speaker of the respective County Assembly would assume the office until a new Governor is elected within 60 days.

2.8 Principles of public finance

The Bill proposes three new paragraphs to be added to the list of principles of public finance. These paragraphs provide for: (a) the national budget of Parliament would not be more than 0.35 percent of the most recent audited accounts revenue approved by the National Assembly (as read together with Article 203 (3)); (b) Not more than 20 percent of Parliament's total annual budget would be expended on salaries and allowances to members of Parliament; and, (c) The highestpaid public servant would earn a salary and allowances not exceeding 50 times that of the lowestpaid public servant or state officer.

2.9 Equitable share of revenue raised nationally increased to at least 35%

The Bill proposes the equitable share of the revenue raised nationally to be allocated to counties to be not less than 35 percent. Counties are required to adopt and use the Ward as the primary unit of accelerated development and efficient service delivery. The national government is also required to use the Equalisation Fund to provide basic services at the ward level.

2.10 Membership of the independent commissions

The Bill proposes that each independent commission consists of, at least, three but not more than five members serving on a part-time basis. Such commissioners shall not be paid salaries but instead, draw sitting allowances as set by the Salaries Commission.

3. Major strengths and weaknesses of the Bill

This part discusses the strengths and weaknesses of the Bill.

3.1 Strengths

The major strength of the Bill is that it provides for a high level of integrity for public officers and reduces the cost of governance. First and foremost, by the audit and forensic reports of the Auditor General being adopted by the DPP and DCI as the first piece of evidence in corruption cases, prosecution of such cases would be effectively and expeditiously. The corruption menace is a matter of public importance and those convicted must be punished accordingly. Secondly, the Bill saves Kenyans tens of billions of shillings needed for the continuous registration of voters and maintenance of a voters' register. Thirdly, it addresses the issue of over-representation. The number of members of Parliament is reduced from the current 424 to 147. This would also save Kenyans billions of shillings.

Fourthly, by elevating the Senate as the Upper House with veto powers, the supremacy battles between the Senate and the National Assembly will be a thing of the past. Fifthly, counties are empowered since their equitable share is floored at 35 percent. In other words, the Bill strengthens devolution. Wards would be the primary unit of development and service delivery which would guarantee improved access of basic services to all Kenyans. Sixthly, redundant and unnecessary public offices such as the office of the Deputy Governor are abolished. The number of independent commissioners is also reduced from a maximum of nine to five. Lastly, the Bill introduces servant leadership in which public office would not be a lucrative venture. People with academic qualifications and expertise would choose to work in the private sector or engage in business. Leadership would mean being a servant of the people through a special calling and not a means of generating wealth.

3.2 Weaknesses

One major weakness of the Bill is that in trying to cure the elusive gender rule in Parliament, it fails to address the same in the Senate. Whereas 100 percent of gender balance is achieved in the National Assembly, the same will most likely not be the case in Senate. This is because the Bill proposes the Senate to be comprised of 47 members all directly elected by the people in the 47 counties and the Speaker who is an ex officio member. This is a serious omission considering that the Bill elevates the Senate as the Upper House with veto powers.

Furthermore, the Bill completely fails to address the gender balance in the County Assemblies. All MCAs are to be elected by the people in the Wards with no additional members to remedy any gender imbalance. The burning question is: Does the Bill extinguish the gains and progress that Kenya has made as a republic as far as the promotion of the two-thirds gender rule is concerned?

Another possible concern (though not provided for by the Bill) is about the right to recall elected leaders. Unless the law relating to the right to recall is amended, recalling elected leaders in Kenya shall remain almost impossible. Even though the Bill maintains elections of the Governors, members of Parliament and MCAs to be held after every five years, Presidency elections would be held every seven years. However, the right to recall debate is preserved for another day.

4. Concluding remarks

Generally, the Bill addresses the plight of the Kenyan people. It addresses issues facing the people at the local level such as high cost of living to due to ballooning public debt, unemployment for the youth, lack of basic services such as water and food, poor road network, inadequate and poor housing, healthcare and education. The painful truth is that Kenyans are suffering as few individuals in the government are “eating”. This Bill is a test by the Kenyans to separate between hyenas and sheep in their flock of elected leaders. Should Kenyans sacrifice the two-thirds gender rule in the Senate (Upper House with veto powers) and County Assemblies for the sake of development and services at their doorsteps? It is submitted that Kenyans should answer this question in the affirmative. This is because there is room for the two-thirds gender rule to be addressed in future constitutional amendments since the life of African constitutions is usually less than ten years.

5. References

Constitution of Kenya, 2010.

The PUNGUZA MIZIGO (Constitution of Kenya Amendment) Bill, 2019.

Thirdway Alliance Kenya, < www.thirdwayalliance.com > accessed 29 July 2019.

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¹ Thirdway Alliance Kenya is a registered political party in Kenya < www.thirdwayalliance.com > accessed 29 July 2019.

² The PUNGUZA MIZIGO (Constitution of Kenya Amendment) Bill, 2019, 9.

³ Constitution of Kenya, 2010 (CoK), art 257(10).

⁴ CoK 2010, art. 1.

⁵ CoK, art 97(1)(b) & (c).

⁶ These categories are persons with disabilities, youth, and ethnic and other minorities according to the amended art 100.