How the Raila-Ruto talks can prevent electoral, governance and economic crisis

Even before the street demonstrations, president Ruto had already written to the speaker of the national assembly seeking the august house addresses certain issues. The Kenya Kwanza Alliance side seems to largely have adopted those as the bi-partisan consultation agenda.

The KKA menu then consists of: implementation of two - thirds gender rule; reconstitution of the Independent Electoral and Boundaries Commission (IEBC); constituency development, senate oversight and national government action affirmative action funds; leader of official opposition and chief cabinet secretary positions and parliamentary oversight of the executive.

The Azimio agenda revolves around: cost of living; audit of the 2022 elections; IEBC reconstruction and reconstitution; delimitation of boundaries and related electoral matters; political parties independence and autonomy; and outstanding constitutional matters concerning inclusivity in national affairs, governance issues, adequate checks and balances.

On July 21 at Ufungamano House, a faith sector led meeting inclusive of secular civil society representatives recommended: "The dialogue we recommend should be based on a clearly defined framework that will create a platform for Kenyans to discuss the challenges facing their lives and find amicable solutions. The framework should provide for engagement of all stakeholders, and should be buttressed by religious institutions for sustainability. There must be a firm commitment that the outcomes of the process will be implemented to avoid a repeat of what has happened in the past."

The above conclave of faith and secular civil society itemized the following for discussion: constitutional and legal reforms; land reforms; addressing poverty, inequality and regional imbalances; addressing unemployment, particularly among the youth; addressing transparency, accountability and countering impunity; enabling constitutional commissions and independent agencies to deliver their mandates.

According to the Ufungamano Assembly, the current bi-partisan process should expedite the agenda of facilitating the reconstitution of IEBC, and then pave way for an independent and inclusive national dialogue process on the Kenya We Want.

An emergent civil society convocation, the Kenya Bora Tuitakayo Assemblies (KBTA) have also advocated for an urgent national dialogue to tackle the current national quandry.

This group has also highlighted the above issues: blow by blow review of implementation of the constitution; state capture; holistic electoral reform; police reforms; execution of all outstanding commission enquiry reports; converting our ethnicities into a nation; overall youth empowerment; and engendering the country's socio-economic liberation.

Police engage youths in running battles in Mathare 4A on May 02, 2023, when the Azimio protests were held in over cost of living. [Collins Kweyu, standard]

Azimio has vigorously protested the poaching of its members by the government side. Strictly speaking if a parliamentarian switches sides, they should resign and be so declared by the speakers and hence face re-election. This matter concerns political morality, the speakers acting as required by the law and citizens insisting that the parliamentarian who has decamped is no longer their representative. Citizen court action is also a welcome remedy.

However, politicians who opportunistically cross over once elected argue they have a democratic right to join any party or coalition of their choice in their individual capacity or when prevailed upon by their electorate.

The Constituency Development Fund (CDF) was declared unconstitutional by the court of appeal but gave the national government a period of 12 months to remedy the defect. In 2022 the apex Supreme Court declared CDF illegal since parliamentarians should not undertake executive role of development implementation as this contradicts their oversight mandate. Although the national government sought to transform CDF into National Government-CDF, the hand of the legislators is still evident in the so-called NG-CDF. Constitutionally therefore it will not be possible to allocate money to be utilized for development projects by members of parliament.

Such money can be expended by the national government through its officials at county level or by the county governments upon transfer to them of the education and grassroots level security functions currently undertaken by MPS.

Article 81 (b) of the constitution provides: "The electoral system shall comply with the following principles - not more than two thirds of the members of elective public bodies shall be of the same gender; ..." Article 27 (8) also provides: "The state shall take legislative and other measures to implement the principle that not more than two - thirds of the members of elective or appointive bodies shall be of the same gender."

Article 97 and 98 of the constitution provide for membership of the national assembly and senate without directly recognizing and incorporating therein the two thirds gender rule. Through a nomination or special elect mechanism, this constitutional imperative was operationalized for county assemblies via Article 177.

So far courts seem to have interpreted the constitution to favour supremacy of Article 97 and 98 over Article 27 (8) and 81 (b).

Article 27 (6) of the constitution permits the state to pursue "legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination."

In my view Parliament can pass ordinary legislation to replicate the formula for gender electoral equity provided in Article 177 as a cure to the two third gender - discrimination in parliament. Would this be deemed to be an Article 257 popular initiative constitutional amendment requiring a referendum? Again, I submit no. A constitution cannot contradict itself.

Enforcing the two-third gender rule through ordinary legislation would still leave current membership of the national assembly and senate intact as provided by Articles 97 and 98 and thus also achieve the provisions of Article 27 (6) and (8) and 81 (b).

Beyond the high cost of living issue, a national conversation by all stakeholders must address the concerns of the faith and secular civic society as well as the political class have put on the table while prioritizing the necessary steps to assure corruption free leadership and the quest for the country's socio-economic liberation leading to 360 degrees transformation.

We must cease engaging in minor talks among only the politicians when monumental problems attack the nation.

Even before launching a genuine national palaver, we need to revisit the outcomes of previous conversations and implement them. We have tended to pick and choose only the short-term political solutions from our debates, and bypassed the measures that can bring about fundamental change and stability in our country. For example, the economic content of the IPPG and BOMAS, as well as Koffi Annan Agenda 4 and even the NCA/NCEC socio-economic blueprints continue to gather dust in some shelves. So too do the Akiwumi, Ndungu, Truth Justice and Reconciliation Commission (TJRC) reports etc.

Kenya and her people need to acknowledge they are in a crisis deserving the patriotic mobilisation of national dialogue and consensus building. Together, country and the people must take responsibility for necessary remedial action. Chest thumbing is counter-productive. Honest self-appraisal is a must. The people and the leaders must rise to the occasion.

Prof Kibwana is a constitutional lawyer and the founding governor of Makueni County