NCCK’s Memorandum to the National Dialogue Committee on Issues of concern to Kenyans

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
Delegation Leader

HE Dr Stephen Kalonzo Musyoka, EGH, SC
Delegation Leader

National Dialogue Committee
Parliament Buildings
P. O. Box 41842
00100 Nairobi

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.

1. 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

Protestant 15,777,500

Catholic 8,726,200

Evangelicals 9,648,007

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.

2. Centrality of Dialogue

Honorable Chairs,

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:

4:

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.

2

3. 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.
4. a) Outstanding Constitutional Matters

(i) Article 43 of the Constitution, the Cost of Living and related issues

Observations:

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.

Recommendations:

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

1. 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

3

1. 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
2. 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
3. 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

Observations:

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.

4

Recommendations:

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:

1. 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.
2. 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.
3. 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

Observations:

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.

Recommendations:

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:

1. 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.

5

1. 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.
2. 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

Observations:

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.

Recommendations:

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.

1. 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.
2. b) Electoral Justice and Related Matters

(i) Restructuring and reconstitution of the Independent Electoral and  Boundaries Commission (IEBC)

Observations:

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.

6

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.

7

Recommendations:

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:

Option	Implications	Remarks
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.

8

1. 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

Observations:

The Constitution of Kenya in Article 89 provides for the delimitation of  electoral units. The extent of delimitation is:

Electoral Unit	Delimitation Limits
County	None
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.

Recommendations:

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

Observations:

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.

9

Recommendations:

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.

1. c) Entrenching Funds into the Constitution

Observations:

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.

10

(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

11

• 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.

Recommendations:

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.

1. 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

Observations:

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.

12

Recommendations:

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.

1. e) Fidelity to Political Parties / Coalitions and the law on multiparty democracy (i) Preventing interference with political parties / coalitions

Observations:

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.

Recommendations:

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.

4. Conclusion

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.

13

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

About The Author