Radical changes in governance if proposals pass

Friday, October 2nd, 2020 00:00 |
Casting a vote. Photo/Courtesy

Report suggests fundamental changes that will impact the way government conducts business.

Eric Wainaina @Wainaina 

Kenya’s power and governance structure is set to change drastically if proposals contained in the final Building Bridges Initiative (BBI) report are adopted.

The document proposes radical changes to the 2010 Constitution that could alter the structure of the Executive, Judiciary, roles and powers of the two Houses of Parliament, restructure independent commissions and the sharing of revenue.

It retains elements of the independence constitution and the Bomas 2005 draft that was mutilated in Kilifi and later tinkered with in Naivasha to give birth to the current supreme law.

And the National Assembly will be a major casualty with a number of its key functions taken over by the Senate.

Besides creating a powerful Prime Minister with two deputies, the report enhances the powers of the Senate by giving it authority to approve key appointments such as that of the Chief Justice, Attorney General, Director of Public Prosecution, Auditor General and Controller of Budget.

The National Assembly, will be restructured to accommodate the PM, deputies and Leader of Opposition and half of the ministers who will be elected members.

The name Cabinet Secretaries reverts to Cabinet Ministers.

Powerful PM

Equally, the report, seen by People Daily, recommends changes to the composition of the Judicial Service Commission, and creation of a new office of the Judiciary Ombudsman as the eye of ordinary citizens in the corridors of justice.

The report, which is presented in the form of a Bill, seeks to have 73 clauses repealed or amended and also proposes changes that could see key commissions created, reconstituted or replaced. 

And in what could excite governors and members of County Assemblies, there are proposals for the creation of a Ward Development Fund, Shared Prosperity Fund and to extend the life span for the Equalisation Fund that targets marginalised counties.

“The object of this Bill is to amend the Constitution of Kenya to address issues arising from its implementation including the need to resolve issues of divisive elections arising from electoral processes, strengthen the structure of devolution and increase resource allocation to counties, streamline the fight against corruption… strengthen and harmonise the roles and functions of the bicameral legislature… promote inclusivity and gender equality in governance,” reads the draft in part.  

The document has been dubbed “Building Bridges Initiative final draft, The Constitution of Kenya (Amendment) Bill 2020” an indication that the processing will begin immediately after it’s unveiled by President Uhuru Kenyatta and Opposition chief Raila Odinga.

“Provisions of this Act relating to Chapter Nine of the Constitution (on Executive) shall take effect from the next general elections…the provision of this Act relating to Chapter Eight of the Constitution (on Legislature) shall take effect from the next general elections,” reads the bill.

The PM will be picked among MPs from the majority party and will be the leader of government business in parliament presently conducted by the Leader of Majority whose position has been scrapped.

He will also sit in the National Security Council, supervise execution of ministries and government departments functions, chair committee meetings assigned by the President and assign any of the functions of the office to his deputies.

If adopted, the Attorney General will sit in the National Assembly as an ex-officio member while the office of the Director of Public prosecution will be made an independent commission. 

The occupier of the office of the DPP must be qualified to be an appellate judge, and not a judge of the High Court as in the present case.

The Auditor General will be required to give an annual address to parliament over government expenditure.

And unlike in the current arrangement in which the National Assembly vets Principal Secretaries, the role will be transferred to the Public Service Commission (PSC).

The Bill creates the post of the Judiciary Ombudsman to handle public complaints against the Judiciary. Currently, the Judiciary has an Ombudsman, under the office of the Chief Justice but is a merely administrative office headed by the Deputy Chief Justice with a slogan “the ear of the Judiciary”.

If adopted, the position will not only be entrenched in the Constitution, but the Ombudsman will sit in the JSC as a representative of the public. 

The move is meant to cure concerns that the President nominates two individuals to represent the public but are beholden to the Executive.

Under the proposed changes, the Chief Registrar of the Judiciary will be required to have 20 years experience in legal practice and not 15 as in the case currently and will cease to be the secretary to the JSC. 

To create room for the Ombudsman, the Supreme Court representative will be withdrawn from the JSC.

There has been an argument that with the Chief Justice, his deputy, a judge of the Supreme Court sitting in the JSC, the institution is overrepresented.

And to address what has always been contested as a conflict of interest, members of the Law Society of Kenya serving in the commission will not be allowed to practice. 

Existing commissioners

This is meant to address the awkward situation of the lawyers appearing to argue cases before judicial officers who they not only participated in hiring but whose activities they are mandated to oversight.

And the Supreme Court will only hear presidential election petitions. Petitions by governors and MPs will end at the Court of Appeal.

The Independent Electoral and Boundaries Commission (IEBC) will be reconstituted before the next elections.

The Bill proposes new commissioners be recruited two months after the adoption of the recommendations in a manner that ensures several parties are involved as a way of rebuilding confidence in the institution.

In the changes that could see current chairman Wafula Chebukati exit before 2022, existing commissioners will be vetted afresh by a panel to be created by the President to determine their suitability.

“The vacant positions in the membership of the Independent Electoral and Boundaries Commission shall be filled within six days of the commencement of this Act (the BBI Bill),” says the recommendations.

The membership shall include two commissioners nominated by political parties: One from the majority party and the other from the minority, a member of LSK and a representative of religious organisations.

Proposals have been made to amend Article 248 to create Ethics and Integrity Commission to replace the National Cohesion and Integration Commission (NCIC) with a new Anti-Corruption and Economic Crimes Commission (ACECC) to deal with corruption and economic crimes that are currently being handled by EACC.

While the cohesion team will serve until the EIC is established or if the current holders’ term expires first.

The anti-corruption commission will transit to the new ACECC, with commissioners expected to serve until their terms expire.

“Both commissions will have constitutional protection as independent commissions under Chapter 15 of the Constitution,” read the recommendations.

ACECC will focus on economic crimes and corruption matters including asset recovery and of the proceeds of crime and financing terrorism while EIC will exclusively deal with ethics, integrity, national cohesion and  integration.

The Bill further creates the Youth Commission to be in place one year after the enactment of the proposal.

The Directorate of Criminal Investigations (DCI) would be autonomous as a third component of the National Police Service headed by a Deputy Inspector General (DIG) who will also be a member of the National Police Service Commission.

Ward Development Fund has been recommended to fund county functions, and shall consist of five per cent of all the county government revenue each financial year.

One per cent of the national revenue will be allocated to a proposed “Shared Prosperity Fund” meant to cushion the most vulnerable.

The fund will be managed by a joint authority of the national and county government.

And the Senate has been empowered to veto a decision of the National Assembly on revenue sharing.

More on News