Calls for referendum ignore that the law can work if implemented

The Punguza Mizigo Initiative has caused some anguish within the political class, adding a strange twist to plans to change the Constitution to suit certain political ends. But unless we the people think carefully and strategically about issues at hand, we will be snookered again and railroaded into something that does not suit the problems facing our country. There are three problematic areas that will come back and haunt us.

First, we are not paying attention to the dysfunctional IEBC supposed to run the referendum. This body has no credibility around its procurement, its staffing and its composition. Yet we somehow expect that it will fairly and efficiently handle a referendum. How quickly we forget!

Indeed, with the Punguza Mizigo initiative, the IEBC has maintained its customary opaqueness and it is unclear how they “verified” and cleared the signatures. What was the base document for comparison of signatures? How can a click on a website—totally different from an electronic signature—suffice? Why has IEBC refused to post all the forms on their website and gazette them? Remember that to date, the IEBC has never opened its servers as directed by the Supreme Court in August 2017, and we still believe they can do the job? Second, a quick analysis of the Punguza Mizigo draft raises more questions than answers. Can County Assemblies pick and choose which issues to approve and which to reject? Did those who clicked on the website approve all the 16 issues or only the three just above the click point on reducing the numbers of MPs, capping the overall cost of running parliament, and increasing devolved funds to 35 per cent?

Moreover, some of the proposals mitigate against equal voting rights. For instance, the proposal wants two MPs per county, meaning that Nairobi County with its 4 million people, will have the same representation as Isiolo County with its 150,000 people. At the same time, it then creates the Senate as the Upper House, with one Senator per County—meaning that its composition is no different from the House--and gives it veto power without clarity on what and how this veto is exercised. 

Also, it does not resolve the issue of legislators—who are meant to provide oversight to the Executive--engaging in the work of the executive itself, simply shifting CDF to Ward level so that MCA’s can do development, patronage or looting, the reason many MCAs are excited about the proposal. This is cheap populism, intended to get support of County Assembly’s but not dealing with the issues of poverty, marginalization and corruption that is eating us.

A word of caution to the MCAs. In 2009, MPs sitting in Naivasha mutilated the draft constitution by seriously weakening the Senate and opting for a presidential system. Many of them then became Senators, and immediately complained that they had very little powers!

Crucially, the clamor for a referendum ignores the significant fact that the Constitution can work well when implemented faithfully and honestly! Just look at Makueni. The Auditor General just gave Makueni County a thumbs up without reservations! There are no rumors of corruption, or building a Governor’s House, because Governor Kivutha Kibwana has been governing by and from the Constitution.  

Today, in a county that is arid, farmers are receiving Sh15 per kilo of mangoes delivered to new fruit processing factories, up from the Sh3 they got before, and Makueni produces mangoes worth more than Sh3 billion annually. There are plans to process oranges, avocadoes tomatoes and watermelons in the next years.

This dry region has put up milk coolers in eight wards so that even the farmer with just a cow or two can get some money in her pocket every day. And it is now producing Makueni Milk, processed and pasteurised with plans for a factory for UHT milk. The persistent lack of water is being addressed through establishment of merry-go-rounds for water tanks so that every household will have a 20,000-liter water tank. Makueni stands out because Prof Kibwana has implemented the constitutional dictates of public participation. Each village is given an allocation of development funds, in a transparent manner, and the people decide their priorities and then provide oversight on implementation of the development project to ensure there is no looting or nepotism.

Which other county can boast a 200-bed hospital built for Sh135 million inclusive of all equipment? Residents pay just Sh500 registration and thereafter qualify for free and high-quality medical care. A colleague tells the story of a senior government official scalded by boiling water while visiting Makueni who was first treated in Makueni before seeking medical attention in Nairobi at a private hospital, remarking how much better care she got in Makueni compared to Nairobi!

As I stated last week, our problems of desperation, poverty, marginalisation and abuse by the state are not because of any weaknesses in the Constitution. Rather they are about our leaders refusing to implement it, and rather than do the right thing--ala Kivutha Kibwana--they blame the Constitution.

- The writer is former KNCHR chair. [email protected]