The National Dialogue has brought optimism that the Republic may yet resolve pressing issues of the day. Pent up frustration over these issues, particularly cost of living and electoral justice, had spilled onto the streets in March and July with devastating effects and loss of life. These issues have been organized into five clusters.
Let us unpack some of them briefly.
The first set of issues has been clustered as outstanding constitutional issues. The cost of living has been wrapped up with article 43 of the constitution, on economic and social rights. It is clear that inflation or escalating costing of living, makes it harder for the citizens to enjoy the rights in article 43. If rents and mortgages are unaffordable, the citizen cannot access adequate housing. Without a way of paying for it, she cannot get the highest attainable standard of health.
The consideration should also extend to the chapter on public finance. Part 5 – articles 220-224 of the constitution focus on budgets and spending, but no mention of how budgets are financed. One of the primary drivers of cost of living is deficit financing.
Article 231 (3) gives central bank independence in the conduct of monetary policy. But there is no requirement that monetary policy – that is the level of money supply, and interest rates – be coordinated with spending plans. As is happening now, you can end up with a mismatch.
To achieve Treasury’s inflation target of no more than 7.5% per year, Central Bank has increased interest rates in order to slow down money supply, with the hope of bringing inflation down. The administration on the other hand is increasing spending, resulting in a Ksh.720 billion budget deficit this year. Domestic borrowing is one step shy of printing money, and has the effect of increasing money supply, the very thing that Central Bank is trying to reduce.
The spending plans set in motion actions that make it difficult to manage the cost of living effectively.
The next cluster of issues includes implementation of the two-thirds gender rule, governance issues, promoting national unity and inclusivity in public appointments as well as adequate checks and balances. Promoting national unity is one of the basic requirements of political parties at article 91(c).
Arithmetically it is difficult to have fixed single member constituencies, specify to total number of members of the assemblies, and still achieve the two-thirds gender rule via top up. In the national assembly for example, no gender should have less than 117 members. The number of nominated should vary to compensate when electoral results do not yield desired numbers. Better yet, we could switch to a proportional representative system.
Some of the governance issues relate to the lack of reform of the police service. In spite of article 239, the service has retained its old character and culture, and is easily controlled by the administration of the day.
The adequacy of check and balances in part has to do with poor performance of constitutional institutions. In particular, the willingness of the leaders of those institutions to stand up to the administration of the day. For instance, it is clear that the National Police Service should facilitate, not impede enjoyment of the rights under article 37.
Obviously, past, current and future administrations would prefer that citizens are not demonstrating. They can avoid that outcome by performing to the expectations of the citizens. If they fail, the Police Service should not come to their aid by suppressing the right of the citizen to picket.
Perhapsone of the most talked about but least understood issues are in the third cluster on electoral justice and related matters. Most commentators stop with the restructuring and reconstitution of the Independent Electoral and Boundaries Commission (IEBC). But the issues are deep rooted.
As a senior industry leader observed this week, we have had the government of the day pick the commissioners. We have had the political parties pick them. We have even had the participation of the religious sector and other stakeholders, but we still have not gotten it right! The reform must be of a fundamental nature, and should start with an in-depth audit. Boundaries delimitation is at the heart of equity because significant resources are shared on the basis of electoral units.
The institutional mechanism for that sharing has been the subject of contestation in court. The outcome has consistently been that the various funds – the national government constituency development funds, national government affirmative action funds and Senate Oversight Fund offend the principle of separation of powers.
The issue is currently framed as entrenching those funds in the constitution. Obviously, if we were to revert to a parliamentary system, where government is resident in the various assemblies, the problem melts away.
There is a prevailing view that the winner take-all nature of the pure presidential system is not working well for the Republic. The presidency remains super powerful, and seems to suck all the oxygen in the room, to the detriment of other institutions of the state, likely because the president is also the head of state.
Current ideas for a cure are the establishment and entrenchment of theoffice of the leader of official opposition, and office of prime cabinet secretary. The latter is already operational, but likely to face legal challenge. Me thinks that the logical solution is a return to the mixed presidential-parliamentary system.
Paying fidelity to political parties, coalitions and the law on multiparty democracy is key to enhancing the checks and balances contemplated in the third cluster of issues. Once safely in office, the current and past two administrations have shown a disdain for political parties.
The second liberation was about a return to multi-party democracy. But the parties have remained weak, ineffective and lacking in deep ideology. Not even public funding and the creation of the registrar of political parties has cured the malaise. Creating legal mechanisms for preventing interference with political parties and coalitions in critical for posterity.
@NdirituMuriithi is an economist
