Press Statement By A Caucus Of Mca’s Leadership Drawn From 47 County Assemblies Held On 16th May 2021 At Serena Hotels Nairobi.
Our country experienced political violence before and after the highly contested 2017 general elections. After the nullification of the August 2017 presidential poll, a run-off, the first one in Kenya electoral history was held in October 2017.
However, the period before the run-off was equally marred by political violence and threats of a boycott of the elections. Some of the Petitioners in the recent BBI judgment openly called for the secession of sections of the country.
The political violence came with severe consequences namely: loss of lives and injuries to innocent persons, destruction of private property, displacement of persons, and amongst others a serious decline of our economic growth due to uncertain business environment and capital flight by foreign investors.
Put simply, factoring in the January-August 2017 electioneering period that began in the last quarter of 2016, the Kenyan economy experienced insignificant growth for one good year and we all know the consequences of such a grave situation.
Just a reminder, 2017 is not the first time we experienced political violence in Kenya and predictably will not be the last if all Kenyans, and the Judiciary, in particular, do not complement the National Executive and Parliament in bringing sustainable peace and unity in the country.
2007 was horrific and unforgettable as more than 1,000 Kenyans were killed, over 500,000 displaced and thousands were dispossessed of their property or their property outrightly burnt just because of their ethnicity which no one in the country or the world chose.
Outside other underlying issues, the violence was precipitated by the feeling that the Judiciary then would not be a neutral arbiter in a political dispute and sadly the same feeling is quickly creeping back! The violence of similar characteristics was experienced in the 1992 and 1997 general elections.
With this background in mind, the historic handshake between President Kenyatta and Rt. Hon Raila Odinga on 9th March 2018 coming in the background of the “swearing-in” of the latter was not just unprecedented and shocking but a big relief and a major peace milestone in the country and the world at large.
No one can dispute the fact that it was a political ceasefire that gave “Project Kenya” another opportunity to redeem and transform itself, resolve entrenched historical grievances, issues, and conflicts that have bedeviled the country for ages.
We must remind ourselves, as Kenyans, that while court orders have in the past sparked politically motivated violence, court orders have never stopped and cannot indeed stop such violence.
Only negotiated political compromise can resolve political stalemates or crises.
It was never about President Kenyatta and or Rt. Hon. Raila Odinga as a coterie of narrow-minded and visionless persons have argued.
In any case, it’s the common mwananchi and the middle-class that suffer more in unstable and fragile democracies not the elite. Fast forward on 24th May 2018, His Excellency the President exercising his constitutional duty in Article 132 (2) (c) of promoting and enhancing the unity of the nation appointed a Task Force to inquire on the following 9 point agenda: Lack of National Ethos; Responsibilities and Rights; Ethnic Antagonism and Competition; Divisive Elections; Inclusivity; Shared Prosperity; Corruption; Devolution; and Safety and Security; and make practical recommendations and reform proposals that would build lasting unity.
The Task Force held county halls meetings in all the 47 counties where all cadres of persons participated, held over 40 stakeholders’ meetings at KICC in Nairobi with key interests’ groups that included; SME traders, IDPs, religious groups, youth and women groups, trade unions, teachers, doctor’s unions, professional groups, private sector business lobbies, NGOs, county and national government organs including the Chief Justice then, David Maraga, on behalf of the Judiciary, and Speakers of Parliament.
All Kenyans also had an opportunity to submit written views on the 9-point agenda.
After finalizing its report in 2019, the President appointed a Steering Committee on 10th January 2020 which again undertook an extensive public validation of the report and provided a constitutional, legal, policy and administrative framework of implementing BBI reform proposals.
Thereafter, the BBI National Secretariat popularized the Constitutional Amendment Bill 2020 which was endorsed by over Three Million voters against a constitutional requirement of only One Million voters.
It was then approved by 43 County Assemblies and both the National Assembly and the Senate. Its imperative to note that before these approvals, these legislative bodies held over 100 national and county-based intensive public participation forums.
The BBI team including the task force, the Steering Committee, and at County assemblies and in parliament conducted very comprehensive public participation exercises at every stage.
The BBI reports and the Constitutional Amendment Bill have almost certainly been subjected to the most thorough and legally compliant public participation program ever carried out under the COK 2010.
It follows therefore that BBI Bill is not just a product of the “Handshake” as under Article 1 (2) of our Constitution, it has so far received overwhelming direct support from the “Wanjiku” and also immense indirect support by the “Wanjiku’s” democratically elected representatives.
This then begs the question; at what point do we draw the line between what “Wanjiku” wants and what a dangerously conservative and self-preserving Judiciary wants.
Put differently, can the Judiciary which is donated some sovereign powers by the people in Article 1 (3) (c) overturn the direct sovereignty of “Wanjiku” or even stop “Atieno” or “Mueni” from exercising this power in Article 257 (10) through a referendum?
We as Members of the County Assemblies are VERY disappointed, dismayed, and dissatisfied with the recent judgment on BBI as it sets a very treacherous and hopeless path in this country.
The judgment does not acknowledge that a Constitution is a living document that must be responsive to the needs and desires of a society at any given time. It presupposes that Kenyans are prisoners of the 2010 Constitution and the 2010 Constitution was made for a tiny minority of Kenyans and in this case the Judiciary and civil society groups not the larger majority of Kenyans.
Of the several reservations that we have with the judgment, we would wish to point out the following: That by holding that some sections of the Constitution cannot be amended whether by popular or parliamentary initiative or what they generally term as “eternity clauses”, the judges boldly and without any solid analysis took away the sovereign powers of the people enshrined in Article 1 (1).
In fact, the judges abused the indirect powers donated to them in Article 1 (3) (c) to oust the peoples’ direct powers in Article 1 (1). Further, this determination means Chapter 16 that touches on the amendment of the Constitution which also can be amended is of zero value and in a simple language should be deleted or assumed as blank pages in the Constitution.
Further, this means that regardless of the social, political, or economic issues that Kenyans face at any given time they cannot constitutionally change the constitution unless they then resort to anarchy either through a civilian or military coup!
That by holding that BBI One and Two Committees are unconstitutional and illegal, this takes away the express constitutional duty of the President in Article 132 to promote and enhance national unity and therefore Kenyans have to resort to whatever means available to them, from experience hook or crook, to resolve their issues as they have no one under the Constitutional to lead unity efforts.
The Judgment contradicts for unknown reasons but suspicious ones two landmark High Court decisions that have held that appointment of the BBI Task Force by the President is constitutional and that IEBC is properly constituted.
In fact, we find it strange that although Article 250 (1) provides that any Commission including IEBC can have a minimum of Three Members, the bench found that on one hand IEBC can transact business but on the other hand it cannot because of a statute that provides a quorum of 5 members. Clearly, the bench elevated a statute over the Constitution.
For these REASONS, we demand the following:
1) THAT the respondents immediately appeal this strange decision and that all county assemblies that were listed as interested parties enter appearance;
2) THAT judiciary stops robbing Kenyans of their direct sovereign powers or abusing the delegated indirect powers donated to them by Kenyans;
3) THAT Kenyans demands accountability from Judiciary as it seems captured by domestic and international players who do not want a progressive society;
4) THAT judicial tranny must stop as such interpretation of the Constitution will easily land the country into worse Post-Election Violence than in 2007 and condemn Kenyans to eternal economic regression.
In the event that the Court of Appeal or Supreme Court adopts this judgment which we demand they don’t, Kenyans will suffer as follows from the perspective of the devolved systems of government:
County funds will REMAIN at 15% of the national revenue instead of 35%;
1450 wards in Kenya will NEVER get a constitutional development fund and governors will NEVER develop some wards as it’s the case today;
There will NEVER be equitable distribution of county resources, POPULATION parameter will NEVER matter in resource sharing;
County Assemblies will NEVER be financially independent and therefore cannot oversight the county executives properly;
Senate will NEVER robustly oversight the revenue allocated to or raised by the county governments and their expenditure;
County governments will NEVER have a direct voice at the Commission on Revenue Allocation;
Quite a number of wards in densely populated areas that are bigger in population than some constituencies will EVER be overstretched by demands for public services, and The legislative gridlock inflow of the Division of Revenue Bill.
Enactment of County Allocation of Revenue Acts will REMAIN and therefore PARALYSIS in running the county governments will remain a recurrent matter.