MEMORANDUM BY THE NATIONAL COUNCIL OF CHURCHES OF KENYA TO THE NATIONAL DIALOGUE COMMITTEE ON ISSUES OF CONCERN TO THE PEOPLE OF KENYA
SEPTEMBER 15, 2023
Hon Kimani Ichung’wah, MGH, MP
HE Dr Stephen Kalonzo Musyoka, EGH, SC
National Dialogue Committee
P. O. Box 41842
The National Council of Churches of Kenya (NCCK – For Wananchi) is a family of Christian Churches and Communions that was established in June 1913. The NCCK is therefore the country’s oldest and largest Christian Churches umbrella body. Being a membership organization, the NCCK does have a presence in all the Counties through the member churches and organisations. This is through Ward Committee, County Coordinating Committee, Regional Committee (a region combines 4 – 6 counties), and at the national level. All the officials are elected by the members of NCCK at that level.
- The Council endeavours to fulfill the Vision “One Church; United in Faith and Mission witnessing to Jesus Christ and Transforming lives”, being guided by the Mission: “Holistic transformation of lives for a just, resilient and sustainable society”.
The 2019 Census indicated the following:
Faith Group No of People
African Instituted Churches 3,292,600
Other Christian 1,732,900
Considering that majority of Kenyan Christians (37,444,307) are in churches already covered by the main umbrella bodies, we posit that this memorandum is representative of a majority of the citizens.
- Centrality of Dialogue
We commend your committee for the progress you have made in reaching agreement on the agenda for the bi-partisan consultative process that has been bestowed on you. We cannot gainsay the centrality of dialogue and consultations among Kenyans for promotion of peace and national cohesion. This is the advice we receive in the Bible in Philippians 2:
Each of you should look not only to your own interests, but also to the interests of others.
It is for this reason that we have consistently called for structured and broadbased dialogue for Kenyans to have appropriate platforms to discuss the issues that affect the nation and find viable solutions. As a nation we declared in the Preamble of the Constitution of Kenya 2010 that we are proud of our “ethnic, cultural and religious diversity”, to which we can also add political persuasions that form the basis of our democracy. These differences should always draw us to sit and converse, and should never be the reason for divisions and conflicts.
- Recommendations on the Agenda Items Set Out by the Committee Having keenly considered the 5 Agenda items outlined in the Notice for Public Participation, we make the following observations and recommendations.
- a) Outstanding Constitutional Matters
(i) Article 43 of the Constitution, the Cost of Living and related issues
The National Council of Churches of Kenya, individually and in partnership with other faith institutions, has routinely addressed itself to this matter. We observe that the triple threats of rampant corruption, massive wastage in government, and unmanageable public debt are the primary drivers of poverty, high cost of living and the overall economic challenges facing our country.
This has imposed on the citizenry a very heavy taxation burden in which the few who are engaged in formal employment and those with formal businesses bear the weight of the nation. The perpetual growth in demand for financial resources by the state has been rising faster than the tax-paying base, resulting in a situation where the portion of income that Kenyans surrender to the state as tax increases each year. This trajectory is not sustainable.
We also do observe that this year, Kenyans are having to grapple with an instantaneous radical increase in fees charged by public institutions of higher learning. The new guidelines bear the potential of making education a preserve of the rich, which will negate the stated aspirations of the government to uplift the poor.
In view of the foregoing, we recommend the following measures to promote the attainment of the aspirations of Article 43 of the Constitution of Kenya: a. Finance Act 2023 be reviewed to reduce the tax burden imposed on Kenyans
- Parliament to review and allocate resources for implementation of the National Food Security Policy and Strategy with a goal of ensuring that each Kenyan is assured of their next meal which will free them to focus on personal and societal development
- Institution of a forensic audit of the national debt to ensure that Kenyans pay back only those debts that were actually taken and were used for the intended purposes
- Institution of measures to incentivize localized industrialization to enhance the value of Kenya’s exports, coupled with capping of the exportation of raw materials to encourage local processing, which combined will create jobs and increase household incomes
- A process that entails intensive public participation be undertaken to develop a realistic anti-corruption strategy be initiated, with a commitment that the recommendations will be implemented in a fair and just manner
(ii) Implementation of the two thirds gender rule
Over the last 13 years, different initiatives have recommended measures and strategies to facilitate implementation of Article 27 (8) of the Constitution, which states as follows:
(8) In addition the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.
Overall, the observation has been that in providing for the membership of the National Assembly (Article 97 (1)) and Senate (article 98 (1)), the Constitution failed to include a provision similar to Article 177 (1)(b) which in providing for members of the County Assembly states:
(b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender. Similarly, a parallel provision at the national level (Legislature and the Cabinet) is lacking with regard to what is provided for in Article 197 (1) which states:
(1) Not more than two-thirds of the members of any county assembly or county executive committee shall be of the same gender.
The primary recommendation, then, has been that the Constitution be amended to roll upwards the gender related provisions made at the county level to the national.
Having considered the foregoing, the National Council of Churches of Kenya holds that the singularity of amendment of the Constitution will not resolve the gap in implementation of the two thirds gender rule. We therefore recommend the following:
- The State to prepare and release a comprehensive report detailing the measures taken to comply with the provision in Article 27 (8). The report should show laws, policies and strategies, as well as reporting on actions taken when state bodies, organs and committees have failed to adhere to the rule.
- Public participation be facilitated to enable Kenyans input on the legislation, policies and strategies for compliance with the Constitution through implementation of the two thirds gender rule.
- Parliament to comply with the requirements of Article 100 by developing and enacting the required legislation.
(iii) Governance issues, including promoting national unity and inclusivity in public appointments
The biggest impediment to good governance in Kenya is the overweening prevalence of impunity under which state and non-state officials break the law with abandon with confidence that they would not face attendant consequences. Gross misconduct, including actions and sentiments that threaten national cohesion, go unpunished.
On its part, the sense of impunity is facilitated by the widescale capture and weakening of the independent commissions and other institutions tasked with safeguarding the rule of law by politicians and financial elites.
The people of Kenya, in the Preamble of the Constitution, recognized their aspiration “for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”. To achieve this, we recommend the following:
- The Constitutional Commissions be accorded genuine financial and operational freedom in an environment where their decisions are respected and the state adheres to the rulings and guidelines given.
- Appointment of officials in independent commissions be by merit so that the appointees are not beholden to the government of the day and will thus effectively deliver on their mandates.
- The Executive and Legislature should stop the blatant disregard and disobedience of court orders and rulings issued by the Judiciary, and should desist from disparaging the Judiciary.
(iv) Adequate checks and balances
The Constitution of Kenya 2010 presents a comprehensive set of checks and balances. Any emerging gaps and challenges are the result of failure to follow the provisions of the Constitution.
Recognizing that the future wellbeing of Kenya is predicated on constitutionalism and the rule of law, we recommend the following: a. The government facilitates a comprehensive civic education programme
to educate all Kenyans on the contents of the Constitution of Kenya. The first step in this process would be inclusion of reading the Constitution as a unit in the Basic and Tertiary Education curricula.
- The three arms of government should set an example for the citizenry by adhering to the provisions in the Constitutions and the Laws of Kenya. If each organ plays its role, then the checks and balances will automatically play out.
- b) Electoral Justice and Related Matters
(i) Restructuring and reconstitution of the Independent Electoral and Boundaries Commission (IEBC)
Prior to 1991, elections in Kenya were managed by the government through the Provincial Administration. With the repeal of Section 2 (A) in 1991, the Electoral Commission of Kenya was established, with Justice Zacchaeus Chesoni as the first Chairman. Justice Chesoni and his fellow Commissioners were appointed by President Daniel Arap Moi.
In the leadup to the 1997 elections, the Inter Parties Parliamentary Group (IPPG) process provided grounds for the appointment of new members of the ECK. Through the arrangement, each of the political parties appointed persons to be commissioners tasked with overseeing the 1997 General Elections. Hon Samuel Kivuitu was appointed the Chairperson. He went on to oversee the 1997, 2002 and 2007 General Elections, as well as the 2005 referendum.
After the 2007-08 Post Election Violence which was driven by accusations of rigging in the elections, the Parliament established a Select Committee that oversaw the recruitment of the commissioners of the Interim Independent Electoral Commission. After the promulgation of the Constitution of Kenya 2010, the IEBC Act 2011 was enacted. It provided for the establishment of a broadbased panel to oversee the recruitment of IEBC commissioners. It was this panel that appointed Isaak Hassan as the Chairperson, enabling him to oversee the 2013 General Elections.
Following accusations that the IEBC had rigged the elections, the Isaak Hassan team was removed from office in 2016 and were replaced by the team led by Wafula Chebukati. On the heels of accusations of rigging the 2017 elections, 4 Commissioners resigned, and were replaced in December 2021.
At the tail end of the 2022 General Elections, the 4 new Commissioners dissented with the results set to be announced by Chairman Chebukati, and three of them subsequently resigned. One, Irene Masiit, was taken through a tribunal that recommended her removal from office. In January 2023, the term of office of Chairman Chebukati and the two other members came to an end.
In view of the vacancies of Commissioners, the National Assembly passed the IEBC (Amendment) Bill 2022, and it was assented to by President Ruto in January 2023. Thereafter, the IEBC selection panel was appointed as provided for in the Act. The Panel advertised the vacancies of the Commissioners and Chairperson of the Commission, and commenced the process of reviewing the applications received.
It is in this context that the Azimio la Umoja Coalition expressed dissatisfaction with the process, instead demanding a reconstitution of the IEBC away from the process outlined in the Act.
Recent media reports indicated that some political actors are proposing a setup similar to the 1997 IPPG process whereby political parties appointed the IEBC Commissioners.
In view of the foregoing review of the appointment of IEBC commissioners in the past, we strongly recommend that political parties should NOT play a role in the process. As a core principle, a player should not be the one to select the referee.
Recognizing that the operations of the Selection Panel have been paralyzed by the political processes especially with regard to the Bipartisan talks, we recognize that there are 4 options for the country:
|Expand the Selection Panel by adding new members||New members nominated by political parties are appointed to the Panel||Similar representation was provided in the 2016 Panel that appointed Chebukati and his team|
|Reconstruction of the Selection Panel where some members are removed and others retained||New members nominated by political parties are added, while some existing are removed||The panel would be considered overly political, with implication that retained members are those who agree to follow some political leaning or the other|
|The Selection Panel is facilitated to complete its work||The Dialogue Committee agrees to allow the current process to proceed to conclusion||The prevailing discontent will persist|
|Reconstitution of the Selection Panel||New members of the Selection Panel are appointed as per the law||This will provide a win-win situation|
In view of the foregoing analysis, we recommend the following: a. That the Selection Panel is reconstituted to facilitate a mutually agreed upon process.
- That the IEBC Act be amended to provide that in future processes, the Selection Panel will present only 1 name for Chairperson nominee and only 6 nominees for Commissioner position.
(ii) Boundaries Delimitation
The Constitution of Kenya in Article 89 provides for the delimitation of electoral units. The extent of delimitation is:
|Electoral Unit||Delimitation Limits|
|Constituency||Change of Boundaries to balance population quota Change of name|
|Ward||Change of BoundariesCreate new wards / remove existing wardsChange of name|
In this regard, the National Dialogue Committee should not entertain any discussions that would result in any changes on number or boundaries of Counties, or the number of Constituencies.
To facilitate the IEBC to undertake the constitutionally mandated task of boundaries delimitation within the set timelines, we recommend: a. That the National Dialogue Committee facilitates selection of new IEBC commissioners in the soonest manner possible.
(iii) Audit of the 2022 presidential election
Article 81 of the Constitution of Kenya provides the core principles of elections and democratic processes. We are nonetheless cognizant of the expression of discontent by the Azimio la Umoja coalition with the Presidential Election in 2022, with persistent requests for audit of the polls. We nonetheless caution against a process that would weaken trust in and function of institutions.
In view of the foregoing, we recommend the enactment of legislation to establish a Judicial Commission to carry out the audit to ensure the process promotes peace, stability and national cohesion.
- c) Entrenching Funds into the Constitution
We in the National Council of Churches of Kenya have observed the different iterations of the Constituency Development Fund, and have been following the public discourse with regard to proposals for establishment of the Senate Oversight Fund.
We do take into consideration the following provisions in the Constitution of Kenya 2010 as regard the proposed funds:
(i) The National Government Constituencies Development Fund Article 95 of the Constitution of Kenya provides for the role of the National Assembly and its members. This role entails:
- Representation of the people of the constituencies and special interests • Deliberation and resolution of issues of concern to the people
- Enactment of legislation
- Determination of allocation of national revenue between national and county levels of government
- Appropriation of funds for expenditure
- Oversight over national revenue and expenditure
- Review of conduct in the office of the President, Deputy President and state officers
- Oversights state organs
- Approval of declarations of War and extension of state of emergency
We do note that despite the practice in the past years, the Members of the National Assembly do not have a mandate to manage any funds. Instead, Kenyans elect them to oversight the management of government revenue and expenditure.
(ii) The National Government Affirmative Fund
The Constitution embraces and provides for affirmative actions to cater for populations that have been marginalized, and various articles speak to this element:
Article 27 (6) – To give full effect to the realization of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
Article 55 – The State shall take measures, including affirmative action programmes, to ensure that the youth – (a) access relevant education and training; (b) have opportunities to associate, be represented and participate in political, social, economic and other spheres of life; (c) access employment, and, (d) are protected from harmful cultural practices and exploitation
Article 56 – The State shall put in place affirmative action programmes designed to ensure that minorities and marginalized groups – (a) participate and are represented in governance and other spheres of life; (b) are provided special opportunities in education and economic fields; (c) are provided special opportunities for access to employment; (d) develop their cultural values, languages and practices; and, (e) have reasonable access to water, heath services and infrastructure
Article 203 (1)(h) – the need for affirmative action in respect of disadvantaged areas and groups;
Article 250 – “Affirmative action” includes any measure designed to overcome or ameliorate an inequity or the systemic denial or infringement of a right or fundamental freedom.
We do note that none of these provisions in the Constitution require a special fund to actualize affirmative action.
(iii) The Senate Oversight Fund
Article 96 of the Constitution of Kenya 2010 provides for the role of Senate, and its members, which entails:
- Representing counties and protection of interests of the counties
- Law making by considering, debating and approving bills that concern the counties
- Determining allocation of national revenue among counties
- Exercising oversight of national revenue allocated to county governments
- Oversighting state officers by considering and determining resolution to remove the President or Deputy President from office
We do note that the Senate and the Senators do not have a role in managing any funds, and instead are mandated to oversight the management of funds allocated to the counties.
In consideration of the foregoing observations, we recommend that the three funds are not established, and the existing Constituency Development Fund should actually be terminated, as they are in contravention of the Constitution.
The funds would allocate a mandate to the Members of the National Assembly and Senate that is not allocated by the Constitution, and which is inimical to the principle of separation of powers whereby the implementer cannot oversight the same task with integrity.
- d) Establishment and Entrenchment of State Offices
(i) The Office of the Leader of the Official Opposition
(ii) The Office of the Prime Cabinet Secretary
The National Council of Churches of Kenya is on record recommending that measures are taken to provide for dignified opposition. The proposal for creation of the Office of the Leader of Official Opposition is therefore a step in the right direction.
Quite notably, there was appointed a holder of the office of the Prime Cabinet Secretary, a position that currently does not exist in the Constitution. The proposed establishment of the office is therefore a move to legalize what already exists.
In the Constitution of Kenya 2010, the citizens outlined the structure of the government and which position is to have which mandate. Recognizably, the Constitution is a covenant of the people of Kenya and the citizens therefore have power to review it to improve the welfare of the nation.
We strongly recommend that a grassroots-driven process be allowed to run in which Kenyans have discourse on the two proposed positions to determine their scope, mandate and sustainability.
Any review of the structure of government should be people-driven.
- e) Fidelity to Political Parties / Coalitions and the law on multiparty democracy (i) Preventing interference with political parties / coalitions
Article 4 (2) of the Constitution provides that: “The Republic of Kenya shall be a multiparty democratic State founded on the national values and principles of governance referred to in Article 10”.
It is therefore inimical to the Constitution for any person or organ to engage in any actions that would offend the democratic nature of the republic. However, there is recognition that the Constitution in Article 38 accords Kenyans the right to hold and change political opinions, and to join or exit political parties at wish.
To address the concerns that have been raised with regard to interference with opposition political parties by the government, we recommend implementation of the processes and procedures provided for in the constitutions of the political parties as well as the Political Parties Act 2011.
In conclusion, we in the NCCK commend this National Dialogue Committee for the process you have engaged on. However, the timeframe provided is rather short, which has the risk of forcing you to adopt a political settlement with minimal public participation.
Nonetheless, we strongly urge that the Committee does not recommend a process to amend the Constitution, and instead identify legislative and policy measures to address the issues set out in the agenda. It may not be prudent, at this moment in time, to subject the country to the polarization and politicization of life that accompanies constitutional amendment discourse when there is a potentially divisive boundaries delimitation process coming up in a short while. It is indeed our recommendation that this National Dialogue Committee identifies strategies to facilitate the exercise of political actions and oversight between the government and the opposition without polarizing the country or keeping the country on election mode perpetually.
On our part, we remain committed to contributing to the betterment of the nation. Signed on this 15th day of September 2023 at Ufungamano House, Nairobi, on behalf of the Member Churches and Organizations (attached) of the National Council of Churches of Kenya:
Archbishop Timothy Ndambuki CHAIRMAN
Rev Canon Chris Kinyanjui GENERAL SECRETARY