The four most burdensome chapters in our Constitution

What Kenyans witnessed recently in the National Assembly during the passing of the Finance Bill 2018 marks the beginning of a period of challenges ahead. As the saying goes, there are no free lunches and hence the chickens have come home to roost. This is why.

Chapters 7, 8, 11 and 15 of the 2010 Constitution on representation, the legislature, the devolved government, commissions and independent offices, respectively, ushered in a new dispensation of runaway spending. In the constitution-making process, we had wish lists of benefits and entitlements but without a corresponding list of responsibilities and obligations, ushering in an expensive legislative bureaucracy and supervisory nightmare.

LEFT TO CHANCE

In the legislature (Senate and National Assembly) we ultimately determined a 417-member Parliament. What we never asked ourselves is, how shall we pay for it? More importantly, what work shall they do and, above all, do they have the wherewithal to perform?

That was left to chance, creating the democratic anarchy we have today. Under Chapter 15, we created many constitutional commissions and independent offices, with full-time commissioners whose mandate is protection of the sovereignty of the people and promotion of constitutionalism.

EXTERNAL SOURCES

The 2010 Constitution was largely left to undue influence of civil society and human rights forces who have a strong affinity and appetite for rights and benefits largely funded from external sources with their own agenda. On the other hand, under the devolved government, driven by excess hyperbole, we became even more generous in both the number of ward representatives (elected and nominated) who now are 1,400 spread across 47 county assemblies.

VALUE PROPOSITION

Nairobi is a perfect example of over-representation with 22-plus elected and nominated legislators in Parliament and 125 MCAs. Despite being the economic hub and the national capital, it calls to question the rationale behind the huge numbers — because from a practical standpoint and experience there is no value proposition to the electors to justify the size of their representatives.

A preliminary analysis reveals that on average every parliamentarian costs taxpayers between Sh2.75 and Sh3.75 million monthly, all factors taken into account, while an MCA costs Sh1.25 million during the same period. Can we afford to carry this huge burden?

NATIONAL DIALOGUE

Certainly not, and any intelligent person will come to the conclusion that it is not sustainable and soon we could be headed to the Greek financial crisis scenario with serious repercussions. Therefore, as a matter of urgency, invoking the popular initiative under Article 257 of the Constitution is an imperative in order to effect amendments by 2021.

This will unshackle the burden borne by the electors who had been led to believe that elections are their rights, without appreciating that for every right there is an obligation and for every obligation there are financial consequences. Our constitution, though less than 10 years old, needs a national dialogue to effect amendments. The sizes and number of counties must be consolidated to affordable levels of between 18 and 25.

AUSTERITY REALITIES

I cannot, however, endorse what has been proposed by the National Dialogue Group which has recommended a leadership structure with a president, a prime minister and two deputy prime ministers as it is not consistent with austerity realities. Creating more high-level positions must not be an option. Our economy can ill-afford it — not now or in the near future. Let us pause and think how best we shall ameliorate the situation by rationalising the number of elected representatives through reduction of at least one third.

The writer is an Advocate of the High Court of Kenya. Email: [email protected]