The disruption of the referendum debate by the African Union Commission announcement on Raila Odinga this week should sound alarm bells. The momentum towards a referendum on our system of governance had been nicely bubbling up to this point. The question ordinary citizens must directly ask their leaders is how the proposed referendering will positively affect their lives?
The calls for a referendum to amend the constitution have been simmering for the last five years. It is being driven by the dysfunctionality of our elections, a bloated system of representation and an elusive search for inclusive politics. It is also being shaped by strong political personalities, propaganda and elite self-interest.
The thirteen proposals being discussed by politicians contain arguments that range from how we can fix the 2017 elections, control public expenditure, streamline devolution accommodate all ethnic communities and resolve the gender two thirds representation crisis we face. The “Putin” proposal and the Punguza Mizigo seem to be the most distinctly clear options before us.
The Putin option proposes a ceremonial President and an executive Prime Minister. Both positions would have a range of Deputies chosen from different regions of the country. The Senate would be scrapped and the National Assembly reduced by creating 49 constituencies with no special seats for women or people with disabilities. The 47 counties would also be amalgamated into twelve going forward.
The fifteen-point proposal by the Thirdway Alliance cuts the number of constituencies, makes Wards the primary units for devolution, sets ceilings for Parliament and State Officers’ salaries and proposes to reinforce Chapter six principles on leadership integrity as well as gender representation among others.
There is no doubt that the concerns with our political system are valid. The real question is whether the referendum will fix a political culture that seeks to change rules and institutions whenever they conflict with elite interests. Having said this, there are some areas that need addressing.
It is no coincidence that the position of a Prime Minister is discussed in at least eleven of the thirteen proposals being discussed. Our current system provides no avenues for continued engagement by candidates who lose a Presidential election. Like Uganda, the costs of losing an election for a national politician are simply too high. Locked out of Parliament and with no real national platform to provide public service and leadership, losing a Presidential election is a short step to political oblivion. I will leave it to the constitutional lawyers to confirm whether a referendum is our only option to fix this.
The turn taken by politicians after Raila Odinga’s appointment as Special Envoy of the African Union Commission Chairperson is revealing. So is Deputy President Ruto’s proclamation that like the 2017 elections, he too, is ready for the referendum. In its current form, the thrust of the “referendering” across our constituencies is primarily driven by the search for a power-sharing deal before the 2022 General Elections. Political parties are using the issue to rally their supporter bases. In effect, pre-election campaigns just started again.
If the referendering does not move beyond this, it has the power to predictably distract the delivery of services, governance oversight and compound an impending national census and review of constitutional boundaries in 2019. It will also add yet another cost to our ballooning public expenses and runs the risk of further dividing the country along political supporter
lines.
Replying to a great question by an MPESA Academy student, President Kenyatta declared ensuring national cohesion and slaying corruption are his two legacy issues. If these two bigger issues are at the heart of his legacy, the proposals being debated within Jubilee need to take a radical shift. If NASA’s push is beyond securing jobs for NASA principals, they too need to sharpen their proposals from a public interest perspective.
Referenda are a direct democracy tool to secure the mandate of the people on constitutional matters. Britain, Hungary, Columbia and Italy are also currently exercising this tool. We know from Germany and Italy under dictators Hitler and Mussolini that referenda can be used to disguise populist agenda that have nothing to do with the public interest.
In the absence of strong constitutionalist culture, this ndebe (ballot box) must be brought before the nation with caution. If we misjudge this moment, we may awake the demons the constitution was created to kill.
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First published Saturday Standard, October 27, 2018. Kindly reproduced here with permission from the Standard Group