Design referendum that builds devolution

Columnists

Design referendum that builds devolution

Sunday, May 5, 2019 22:00

By COLLINS ODOTE

Two weeks ago, I was in a panel discussing the possibility of a referendum to change the Kenyan Constitution. The debate revolved around the feasibility, utility and timing of such plans.

In my view, changing the Constitution is not a bad thing; it provides for it through a popular initiative and parliamentary avenue.

The gist of my input at the legislative summit between Senators and Members of County Assemblies in Kisumu related to changes to strengthen the legislative arm of government.

There has been debate about the viability of the current devolved structure and the need to reduce either the number of counties or wards.

As one panelist stated at the conference, the referendum should be about increasing and not reducing rights.

Devolution remains one of the most transformative aspects of the 2010 Constitution. The practical impact it has had on the lives of Kenyans in far flung parts of Kenya is huge.

The debate about a referendum must, therefore, seek to strengthen not water down devolution.

Granted, the number of counties may be too many. While merging counties is economically feasible, it would be politically untenable.

There are other options of strengthening the counties which do not involve scrapping counties. This is what should explored. Counties are already seeking to benefit from economies of scale through establishment of regional economic blocs. Discussions should be on whether the Constitution can support the creation and operations of such blocs.

On the legislature, the county assemblies are composed of representatives from each ward. The question of the number of wards is a function of the Independent Electoral and Boundaries Commission. It does not require a constitutional referendum to adjust the number of wards.

The upcoming boundary review is the appropriate forum for doing so. The aspect that is constitutional relates to the number of nominated members under Article 177 to meet the constitutional threshold of not more than two thirds of either gender.

It may be necessary to explore whether there are other options of achieving the gender quota that could result in cutting the cost of representation.

The other areas requiring fixing relate to the role of Senate and its relationship with the National Assembly on the one hand and the County Assemblies on the other.

There has been widespread debate about the utility of the Senate as structured with calls for its scrapping. Because of the powers the Senate has, these calls may not be far-fetched.

The challenges facing the Senate are structural more than operational. It is subjugated by the National Assembly and turned into a talking shop with very little powers to deliver on its legislative, oversight and budget functions.

Despite these limitations the institution has at least stood up to devolution in budget making. They have also generated legislation that are pro-devolution more than the National Assembly.

The problem has been the failure by the National Assembly to process these proposals emanating from the Senate, sometimes because the proposed laws go beyond the Senate’s constitutional mandate. This should be fixed.

As opposed to scrapping the Senate, it needs to be strengthened as the defender of devolution and given commensurate powers to perform this function.

One area will involve relooking the constitutional provision that they cannot pass legislation that have financial implications.

The powers of the Senate and County Assemblies should not result in duplication, which has been causing tension.

The county assemblies’ oversight powers should be strengthened with the Senate playing a complementary role.

The timing of changing the Constitution is critical so that politics does not take away the wishes of Kenyans.

If the country is to change its Constitution, the next 12 months are critical.