Much ado about Okoa Kenya Bill

The "Okoa Kenya" Draft Bill is thoroughly underwhelming, and in some instances, plainly ridiculous. It purports to address critical issues when it is in essence only geared towards getting the CORD coalition to power by any means necessary. CORD claims they had a committee of experts working on the Bill, yet the entire Bill doesn't match up.

The Bill virtually says nothing about security or Chapter Six on leadership and integrity – key concerns upon which Okoa Kenya was initially premised.

It is widely recognised that the Constitution of Kenya, 2010 may have some critical flaws that need to be addressed.

There was general agreement by both its proponents and opponents that certain issues needed to be addressed. With nearly five years of experience, some other issues have come up that may need to be addressed. Yet, the Okoa Kenya Bill does not address even a single one of them.

The Bill has 26 Clauses that seek to amend various provisions of the Constitution, a third of which deal with management of elections. Three of these clauses deal with the Judiciary, mainly driven by the fact that the Supreme Court is about to have several vacancies. CORD does not want the President to fill these vacancies.

This amendment should broadly be seen in the context of a possible presidential petition – which as we all know, is the preserve of the Supreme Court.

So in reality, half of this bill is directed towards managing election outcomes in favour of CORD. This is the real reason behind the Bill – the rest is just cover.

Even these clauses have some outrageous provisions.

For example; Clause 7(b)(viii) that requires IEBC to ensure that at least 80 per cent of all eligible voters are registered to vote. This provision purports to solve a non-existent problem.

To the best of my knowledge, IEBC has never refused anyone registration who presented themselves to a registration clerk with proper documentation. In any case, how do they intend for IEBC to do this?

Do they want IEBC to resort to the old KANU era days where chiefs would walk door-to-door with KANU-Youths to force people to buy membership cards or stamps?

Clause 10(iv) requires a Returning Officer to ensure that vote results are "beamed to the public through at least three accredited television stations". Other than the fact that this clause puts an unjustified obligation on private TV stations to "beam" results, it disregards the logistical nightmare this would present. Imagine the anxiety in the hall as the Suba Returning Officer waits for three TV stations to come so that he/she can announce results! Logistically, the announcement of results alone can take weeks!

Several weeks after the announcement of the results, the country will then have to wait for up to 60 days for the Supreme Court to determine any presidential petitions, should they arise. Of course, the "experts" did not take into consideration the mess this would have on the timeline for elections.

Another key clause is 23 that seeks to amend the Constitution to deal with ethnic-based appointments. It says no single community will occupy more than 15 per cent of appointive positions in the national government (Clause 23a).

There is no science behind arriving at 15 per cent. The only logical explanation I can find for this percentage is the 2009 Population Census. In that Census, the only community with a population above 15 per cent was the Kikuyu (at 17 per cent), followed by Luhyas at 14 per cent with Kalenjins at 12 per cent. Simply put, the 15 per cent limit is directed at limiting the positions occupied by one community – Kikuyus.

An amendment purporting to correct ethnic-based appointments ends up vilifying one community. It is 41 versus 1 all over again, only this time, they want it in the Constitution.

If this clause were to pass, no single community would occupy more than 15 per cent of positions in a county government – including the counties where single communities are the overwhelming majority. Okoa Kenya is conspicuously silent on what we will do with the people who already occupy these positions but who are not favoured by their ethnic quotas. Of course it says nothing about Kenyans of mixed ethnicity!

For businesses contracted by the national government and its agencies, especially small and family owned ones, this provision is even more injurious. For you to qualify to do business with Government, your business must have a minimum of seven employees all from different ethnic communities (to satisfy the 15 per cent rule). MacOdingo alone cannot consult for the national government (I constitutes 100 per cent Suba).

Clauses 22 and 23 are essentially creating incentives for MCAs and Members of the National Assembly to pass the bill based on personal interests by creating Ward and Constituency Development Funds. Essentially, these are bribes.

Clause 24 purports to create a County Security Advisory Committee. However, it ends up creating a body whose membership is vague and superfluous. It does not even have a chairperson. All the functions they assign are from the National Police Service Act as regards County Policing Authorities which are chaired by governors and have clearly defined membership and funding mechanisms.

Even the clauses that seem to be well-intentioned are so poorly crafted that one wonders what level of expertise went into them. Finally, there is Clause 20 that gives county governments 45 per cent of all national revenue "in the preceding financial year". There are several problems with this clause. It has two fundamental flaws. First, it doubles allocations to counties without devolving any additional functions.

As is, the national government would either collapse or have to borrow so much that it would soon become bankrupt. With a 45 per cent allocation to counties, we would not be able to adequately fund basic mandatory national government functions. And this basic calculation has not taken care of salaries for civil servants! In essence, Okoa Kenya wants the national government to collapse.