What you need to know about BBI

 

For almost 30 years, in Kenya, we spend two of every five years dealing with a slowing or declining economy due to fears of electoral crisis. Investment dries up, businesses shrink, jobs are lost, and all but the very wealthiest feel the pain of our political competition. Politicians escalate divisive speech and play to our ethnic differences. They treat the election as a do-or-die affair, and Kenyans lives are endangered and even lost to violence. It takes a full year to recover economically from the election, and then we repeat the cycle all over again. They feel that they live in political and economic systems that are not designed to benefit the working man and woman.

Kenyans know we need change, bold change

• The March 2018 Handshake was a pause in this trend, an opportunity to take another path. It provided a rare window, to rally the country together to face some of our most daunting challenges. They want it built on.
• Kenyans embrace the handshake because they know we have to change our trajectory, our social and economic system, and the way we are governed, if we are to avoid catastrophic national failure.
• In their daily lives, they depend on uniting to give and receive help. So uniting for change is something they can buy into as long as they know that it is going to tangibly benefit them and their families. Kenyans will unite to change Kenya and the BBI process has shown a path that can lead to a better future.

The BBI taskforce

President Kenyatta formed the Taskforce on Building Bridges to Unity Advisory with a mandate that it consult citizens, leaders, institutions, civil society, the private sector, the religious sector, and other stakeholders to recommend to him solutions that he will share with relevant institutions and processes. Though there are other important challenges, the Taskforce focused specially on nine major ones as per its mandate.

BBI heard from Kenyans in all 47 counties. More than 7,000 citizens from all ethnic groups, genders, cultural and religious practices, and different social and economic sectors were consulted. The Taskforce heard from more than 400 elected leaders past and present; prominent local voices from the community; and young people who added their voice to citizens in the Counties; 123 individuals representing major institutions, including constitutional bodies and major stakeholders in the public and private sectors; 261 individuals and organisations who sent memoranda via (e)mail; and 755 citizens who offered handwritten submissions during public forums in the Counties.

What the BBI taskforce is not

The Taskforce has offered advice as per its mandate. BBI does not replace any legal or constitutional body. Its recommendations are just that: recommendations based on listening to Kenyan citizens and experts. The report will be subjected to a further national conversation that will allow for focused discussions and will even include a digital platform that allows Kenyans to interact with the report and make their observations, additions and proposals.

The major challenges Kenyans identified

• In the context of consulting on the nine major challenges outlined in the 9th March Joint Communique, Kenyans placed greatest emphasis on the following challenges:
• National ethos and values — Kenya is an arranged marriage by strangers, not our parents. We have made it work to a certain extent but now we have to build a respectful and cohesive family.
• There is extreme poverty and hunger in parts of the country. Unemployment and underemployment, particularly of the young people, is high. People are living hand to mouth and the future looks tough. The cause is conflict, corruption and bad politics.
• Young Kenyans increasingly feel that their needs and aspirations are not being met by the economic, social, and cultural structures in place today. Many yearn for more stability in their income and prospects. They have heard many promises and now no longer believe on promises to merely improve on the status quo. They feel that we must utterly transform how the system works. That is what they expect from this process.
• Our politics are not serving us well. Elections are too divisive. They are pulling us apart. Too much is lost from the cycle of 3 years good and 2 years bad that increase our poverty and divide us from each other. What often binds all major challenges is siasa mbaya. Bad politics makes problems worse and invents new ones.
• Corruption is greed and it is hurting Kenyans. They want a stop to it. They commend the moves against it that have been made but they feel that a lot more needs to be done.
• Kenyans appreciate devolution but think that more needs to be done to make it more inclusive and of more benefit to Kenyans.
• Government is spending too much on itself. Public resources should be used for Kenyans and the burden of government should reduce.

The solutions identified from what Kenyans said to BBI

National ethos — We lack shared beliefs, ideals and aspirations about what Kenya can become if we all subscribed to a national ethos that builds and reinforces our unity. To change this is bottom-up work, starting in the family and the community, supported by initiatives that embrace the positive cultures, beliefs and ideals of Kenya’s diverse communities and facilitated by civil society, the private sector, and State institutions. It will become embedded in the formal education system, starting from the earliest age and lasting for a lifetime, religious and cultural institutions, the media, and our arts sector.

Elections will come and go with different administrations in place, but Kenya will endure. We need a vision of the Kenya we want to exist in 3 generations or 100 years.

We must become comfortable in our own African skin — The Taskforce recommends that Government undertake initiatives that harmonise modern Kenyan identity with our diverse African cultures so that we are Africans comfortable in our skin and not operating between two, or more, sometimes contradictory worlds.

• Strengthen the Ministry of Culture and Heritage which is currently treated as a peripheral government activity.
• Replace Boxing Day on 26th December with a National Culture Day for celebrating culture and learning about other Kenyans’ cultures (this can also be done on 1st January).

We should give ourselves a definitive, evolving, and inclusive official history. H.E. President Uhuru Kenyatta should commission an Official History of Kenya whose production will be led by an Office of the Historian resident in the National Archives.

A full-time focus on ethics — The EACC should be focused on stopping economic crimes, and given constitutional protection as a Chapter 15 Commission. Its ethics mandate should be redirected to the NCIC which should henceforth be renamed the Ethics Commission and its mandate refreshed in line with the Ethics mission, and for it to be under the Office of the President.

• Teaching ethics as a compulsory subject throughout the schooling curriculum from nursery to university.
• Including teachings of the national values and principles as part of every ethnic culture and particularly as part of the teachings during rites of passage into adulthood.
• Implement the current enforcement mechanism under the Leadership and Integrity Act, even as we discuss hot to strengthen it.

We must develop real shared prosperity by growing the national cake. It is not enough to merely improve our economic output and present rates of investment: we must entirely transform the way our economy operates if we are to deal with the present lack of jobs.

Build the economy from the grassroots.

Taxes — The tax base needs to be broadened, but it is crucial that overall taxation in Kenya be low relative to competitor economies regionally and globally.

Money follows people — Decrease conflict over national resource distribution by treating all Kenyans as equal — this should take into account population, needed investment in health and agriculture, service provision, and access to natural resources and livelihood opportunities. The share of public resources for every Kenyan should be carefully balanced to account for every Kenyan being treated as equal, as the Constitution makes clear, while ensuring that those who have been marginalised in the past, or are being marginalised at present, are given extra help where they need it. It must be focused on service delivery to settled and serviced areas, meaning services from the centre to the furthest point in the County rather than land mass.

Lending to priority sectors — the Government should deliver a policy that provides legal and regulatory guidelines for banks to lend a part of their portfolio to priority sectors such as micro, small and medium businesses, export credit, manufacturing, housing, education, health, renewable energy, sanitation and waste management, and agriculture (including livestock and fishing).

Deepen and accelerate EAC integration.

Savings are investment — Undertake a major effort to increase national domestic savings to at least 25% of GDP if Kenya is going to develop the ability to drive investment in multiple sectors, including labour-intensive manufacturing base to produce sufficient jobs.

Keep the Public Service from monopolising all our resources on salaries — There should be a clarification of the legal and administrative powers of the Salaries and Remuneration Commission to ensure that it oversees all salary reviews and changes.

Empower young people to have more opportunity and income

Nurture and open opportunities for youth to gain from their initiative, innovation, and entrepreneurship. Increase employment and livelihoods by making it easier for small businesses to compete and grow at low cost and with minimal constraints.

Minimise taxation of new and small businesses by giving them a tax holiday of at least 7 years as a support to youth entrepreneurship and job creation.

Creativity and sports — Make serious efforts to coordinate, incentivise and drive the growth of the creative industries and sports, among other sectors in which young Kenyans show enormous potential and interest.

• Identify and invest in special talent and special needs at the Early Childhood Development stage.
• Encourage the private sector to form a national, non-profit foundation, chaired by the President, that provides mentoring, training, and support tools to aspiring business owners aged 18-35.
• To help young people form businesses, open an advice desk in every Huduma Centre manned by a business development expert.
• The private betting industry is leading to hopelessness and greater poverty. The taskforce recommends that the private betting industry be replaced with a Government-run national lottery whose proceeds, as is the case in other countries, are used for activities that uplift the youth, sports, culture and other social activities beneficial to citizens.

MAKE POLITICS MORE INCLUSIVE AND ACCOUNTABLE — Kenyans want a home-grown, inclusive system that reflects not only the pre-colonial political structure but also our day-to-day realities. Kenyans want to see inclusion in the Executive, while also wanting to directly vote for their President. Kenyans told the Taskforce that while they appreciate the increased accountability of the parliamentary model, they also want to vote directly for a President holding executive power to offer decisive leadership. They also told the Taskforce that they want a strong opposition and a Parliament that will hold the Executive accountable through applied checks and balances.

Running for and winning the Presidency — The President shall be elected through universal suffrage. For a candidate to be declared the winner of the Presidential election, he or she must win 50% + 1 of the Presidential votes and at least 25% of the votes cast in each of more than half of the Counties, as is now the case.

An Executive President — The President will remain the Head of State and Government and the Commander-in-Chief. He or she shall be the central symbol of National Unity. The President will chair the Cabinet, which compromises the Deputy President, the Prime Minister, and Cabinet Ministers.

The Executive, under the authority of the President, shall have the power to determine the policy of the Government in general, while the Ministers under the leadership of the Prime Minister, shall be collectively responsible in the National Assembly for the execution of the affairs of the Government. This structure executive makes it more accountable in Parliament and to the people.

Term limit — Retain the present two-term limit for the position of President.

Deputy President — The Deputy President is the running mate to the President. The Deputy President shall deputise the President.

Prime Minister — Within a set number of days following the summoning of Parliament after an election, the President shall appoint as Prime Minister, an elected Member of the National Assembly from a political party having a majority of Members in the National Assembly or, if no political party has a majority, one who appears to have the support of a majority of MPs.

Approval by Parliament — The nominee for Prime Minister shall not assume office until his or her appointment is first confirmed by a resolution of the National Assembly supported by an absolute majority vote of MPs.

If the Prime Minister nominee is not confirmed, the President shall have another set number of days to make another appointment. This process shall continue until there is a successful nomination for Prime Minister. A measure to ensure that this process is not indefinite, and that governance is continuous should be considered.

Dismissal — The Prime Minister may be dismissed by the President or through a vote of no confidence in the National Assembly.

Leader of the Official Opposition — The runner-up of the Presidential election becomes an ex-officio Member of Parliament and the Leader of the Official Opposition if his or her party is not represented in the Government, or of a coalition of Parliamentary parties not represented in the Government.

Need for a strong opposition — The party or coalition of parties that is not in Government shall be the Official Opposition.

Shadow Cabinet — The Leader of the Official Opposition shall be enabled to have a Shadow Cabinet.

Question Time — The Opposition will play a key role in Prime Ministerial and Ministerial Question Time sessions in Parliament.

The Role of the Prime Minister — The Prime Minister shall have supervision and execution of the day-to-day functions and affairs of the Government. The Prime Minister shall be the Leader of Government Business in the National Assembly. On the President’s tasking, the Prime Minister will chair Cabinet sub-committees. In the exercise of his authority, the Prime Minister shall perform or cause to be performed any matter or matters which the President directs to be done.

• The Prime Minister will continue to earn his or her salary as a Member of Parliament with no additional salary for the prime ministerial role.
• The Permanent/Principal Secretary in the Office of the Prime Minister will chair the Technical Implementation Committee of Principal/Permanent Secretaries. To avoid the politicisation of the Public Service, the Permanent or Principal Secretaries will not be subject to Parliamentary approval. Their accountability will be strictly administrative and technical.

A mixed cabinet — The cabinet is a crucial part of the Executive arm of Government. There is discontent with the current system, judging from what Kenyans told the Taskforce. The President will appoint Cabinet Ministers after consultation with the Prime Minister. The Ministers shall be responsible for the offices that the President establishes in line with the Constitution.

• The Cabinet shall be drawn from both parliamentarians and technocrats with the latter being made ex-officio Members of Parliament upon successful Parliamentary approval.
• The Taskforce is also recommending that the Cabinet Secretary be renamed Cabinet Minister.
• To ensure more effective political direction and Parliamentary accountability, there shall be a position of Minister of State that will be appointed from members of the National Assembly and taking direction in their ministerial duties from Cabinet Ministers. These Ministers of State will continue to earn their salary as MP with no additional salary for their ministerial role.

Representation in the electoral system — It is crucial that whatever form reforms to representation take, that they accord to the following principles if Kenyans are to be fairly and equally represented:

• That the people’s choice, as reflected in the election of their representatives, including in Party primaries and nominations, in a proportional system shall be upheld through fair, free and transparent elections.
• Individuals included in any Party lists shall initially have undergone a process that uses transparent public participation in the Counties even before any other vetting procedure is used.
• That there shall be the equalisation of representation and equality of citizenship, as much as possible, by ensuring that each Kenyan vote has the same status and power, as envisaged in the Constitution.
• Parties will be compelled through the Political Parties Act to be consistent with the Constitution to meet the Gender Rule and other Constitutional measures of inclusion through their party lists. This will equalise both genders in political terms, rather than creating a parallel system that creates a sense of tokenism.
• All the existing 290 constituencies will be saved, including the protected seats because they have become key for representation of sparsely populated areas.
• Devolve political parties to have strong County based party branches that will allow the people to have the political forums and avenues to hold their elected leaders accountable throughout a term and not just during elections.
• The nomination lists through parties should be completed in a transparent process governed by the political parties overseen by the Registrar of Political Parties and the IEBC.

ATTACK CORRUPTION THROUGH STRUCTURAL AND PREVENTIVE MEANS — The growing public perception of Kenya having a rigged system that rewards cronyism and corruption is the greatest risk to Kenya’s cohesion and security. Tackling corruption is the single most important mission Kenya has now. The Taskforce makes major and actionable recommendations, a few that are captured below:

Reverse the Ndegwa Commission — Ban all public officers from doing business with the government.

• Make all wealth declaration forms open to public scrutiny.
• Promote whistleblowing by giving rewards of 5% of recovered proceeds to persons who give information on corruption deals.

Protect whistleblowers — Enable court procedures that guarantee the protection of the safety and security of informants, whistleblowers and witnesses, particularly regarding terrorism, serious transnational crimes, and corruption.

• Make Kenya a 100% e-service nation by digitalising all government services, processes, payment system and record keeping.

Increase public confidence in the Judiciary recognising that the core constitutional principles in Kenya are the separation of powers, between arms of Government, and accountability to the people of Kenya. The independence of the Judiciary must be protected as a fundamental principle, and it should also be accountable to the people of Kenya.

Protect media freedom to expose corruption but ensure that false allegations and defamation do not frustrate service delivery to the people.

DEVOLUTION THAT WORKS — In terms of creating a major departure in the governance of the country and the management of public resources, devolution has largely been a success. However, devolution is still frustrated by serious challenges that if unaddressed, will raise questions about its political and economic sustainability. The major recommendations made by the Taskforce include the following:

Retain all the 47 counties but encourage and assist counties to form voluntary regional economic blocks. Depending on further consultation with Kenyans, consider that while Kenyans are strong supporters of devolution and their counties, they also want better value for money and more money to be used for development as opposed to high recurrent and administrative costs. Perhaps there is a way that the 47 Counties can be maintained as the focus of development implementation and the provision of services, while representation and legislation are undertaken in larger regional blocs.

• Increase resources to the counties by at least 35% of the last audited accounts.
• When dividing revenue between counties, use a formula that focuses on ensuring services reach the actual settlements of people so that resources are not allocated on the basis of uninhibited land mass.

Finalise the transfer of functions from the National to County Governments and eliminate all duplicity of functions between the two levels of government. Follow the maxim “money follows functions” in allocating money between the two levels of government.

Ensure that financing the development of each and every Ward is done in a transparent and equitable way within the 5-year term.

Changes in County leadership — Where a vacancy, for any given reason, occurs in the Deputy Governor’s office, and the Governor fails to appoint a replacement within 90 days, the Speaker of the County Assembly, with the approval of the Assembly, shall nominate a Deputy Governor. 

The running mate of every candidate for the position of Governor should be of the opposite gender.

Health Service Commission – Transfer the health sector personnel element from County governments to an independent Health Service Commission to enable sharing of the very limited health experts.

County Government spending — Supervision of County Spending, investment and employment is not succeeding at multiple levels which is leading to large amounts of waste and corruption that compromise devolution which is otherwise very popular with Kenyans. It is also crucial for oversight to be strengthened.  The response should be much stronger oversight by the responsible bodies, actions to cut wasteful costs, and assign a greater proportion of County finances to development.

Strengthen the oversight independence of County Assemblies by ensuring that the transmission and management of County Assembly budgets are insulated from arbitrary or politically motivated interference by County Executives; these processes should also be subjected to rigorous public finance management processes.

Require new governments to complete the projects initiated by former governors by Treasury withholding funds for new projects unless old projects are completed. A Governor who wants to abandon an old project must formerly communicate to the public credible reasons.

Counties also must grow the economic pie — Counties should be guided by a greater focus on being competitive in attracting their residents to be more entrepreneurial. They should develop Biashara mashinani in which there are high-priority efforts by every County to support local groups to develop businesses through partnerships. The County Government should ensure that small and emerging businesses are easy to start, and that they find it easy to navigate regulations and bureaucracy and to get their goods to market in a timely way.

Government should be smaller and invest in the people not in itself — The Taskforce found Kenyans with strong feelings against the size of government. They wanted the burden of Government to be less on them by public money being used to serve them, to achieve value for money, the reduction of wastage and cutting down on fraud and corruption. Specific recommendations were made to this effect, including those against corruption above.

Spend more development not just bureaucracy — Target a ratio, written into law, of at least 70:30 for development versus recurrent expenditure in National Government.

• The ratio between County development spending and recurrent expenditure should match the national one at 70:30.    
• Ensure that financing the development of each and every Ward is done in a transparent and equitable way within the 5-year term.
• A number of Ministers will now earn their Parliamentary salaries so Cabinet will be less expensive.
• Strengthen the capacity of the Controller of Budget to be able to detect and respond in a timely manner to misappropriation, wastage, and illegal processes.
• Rationalise the mandates of regulatory bodies to ensure lack of duplication, and to ease transparency, affordability and prompt service to enable higher levels of regulatory compliance.
• Rationalise all government owned enterprises and enact GOE Bill to bring all GOEs expenditures under control with common user benchmarks, independent valuations of projects and value for money audits on completed projects.
• Enforce the powers of the Salaries and Remuneration Commission to rationalise all public sector salaries in the country and address the large discrepancies in income.
• Elimination of wasteful expenditure in National and County Government by bringing established laws and regulations to bear that ensure that items such as new cars or office refurbishments for incoming senior officials follow proper procedure in planning, budgeting and procurement.

Eliminate all sitting allowances for Public Officers on salary.

There are significant savings in eliminating duplication of functions and jobs between National and County Government. Also, rationalise jobs within the County Governments, particularly where there is over-staffing or duplication.

• Rationalise jobs within the County Governments: many are overstaffed.
• Parastatals carrying out County functions should be either wound up or restructured. This should be synchronised with the implementation of the already completed parastatal reforms policy.
• Eliminate replication of job functions at National and County level, resulting in a lower wage bill.
• Harmonise pay of the County and National Governments.
• Utilise ‘natural wastage’ and a recruitment freeze to lower the size of the Public Service.