The verdict is out. The Punguza Mizigo Bill sponsored by Thirdway Alliance has failed the critical hurdle of receiving approval by at least 24 counties as required by the Constitution to trigger its consideration by the National Assembly and the Senate.
The process has not been without its intrigues and lessons. Touted as a Bill to reduce the burden on the Kenyan taxpayer and wrapped in sweeteners for Members of County Assemblies, the rejection of the Bill has come as an anti-climax especially for the proponents of the Bill. They have raised the issue of undue influence and political interference.
A critical reading of the Bill and observation of the process, however, reveals several fundamental problems that should provide lessons for any future process. The first relates to the calibre of MCAs. When the 2010 Constitution was adopted, there were public discussions that the change from councillors to MCAs would lead to emergence of quality leadership.
This was justified on the requirement for higher academic qualifications and on the powers and responsibilities vested on the new leaders. However, concerns have continued to be raised especially when media reports capture MCAs fighting and agitating for pay.
The Punguza Mizigo Bill has given the country an opportunity to assess the MCAs. From the quality of discussions, the promise of the Constitution is being realised. One may disagree with the outcome of the process, but it would be wrong not to acknowledge that when the constitutional moment arose, members of county assemblies across the country discharged their responsibility with focus and demonstrated an appreciation of Constitutional issues.
They articulated what they thought as critical considerations within the Bill. Their records will provide very useful reference materials for ongoing discussions on the changes required to the Constitution to make it better fit for purpose.
The second problematic issue relates to public participation. Article 10 of the Constitution makes public participation a mandatory aspect of the country’s governance processes. It is, consequently, obvious that the process of changing the Constitution requires to be as consultative as possible.
The lingering debate though is what type of consultation is adequate. Should the signature collection be equivalent to public participation? Should there be public fora to socialise citizens on the issues in a draft constitutional Bill before its debate? Whose responsibility is it to organize and facilitate such? Is it the promoter of the Bill? Is it Independent Electoral and Boundaries Commission(IEBC)? Is it County Assemblies? Lack of clarity on this issue led to a situation where there was neither consistent nor deep engagement with the public to ensure that they were fully abreast of the Bill’s contents nor consulted on the proposals before they were tabled.
On the proposals, there was a difference between the actual proposed amendments and the justification. The bulk of the justifications were spot on. However, in many instances, the promises were not followed through.
For example, the promise to cap salaries for elected officials at a certain percentage was not included in the text of the Constitution. This raises the issue about fidelity during amendments process. How do we ensure that the memorandum and objects match the actual changes?
This is an essential constitutional issue that the process has raised. Part of the debate has been about what really the proposals were about. If you propose to add the number of cows in one’s home, it must be demonstrable how this will be achieved and how it will be done. Unfortunately, this was not always evident with the Punguza Mizigo proposals.
Related to this was the balance between populism and realism. Beyond statements that appealed to emotions, there was debate about the actual practicalities of the proposals.
Moving forward, the country needs to learn lessons from the process. One is that our political process is coming of age.