SAM’S SENSE: NADCO for the people, not the elite

Early this week, religious leaders drawn from the National Council of Churches of Kenya, the Kenya Conference of Catholic Bishops and the Supreme Council of Kenya Muslims converged at the historic Ufungamano House to deliberate the constitutional and legal reforms proposed by the National Dialogue Committee (NADCO), the committee that had been formed following the chaotic demonstrations by the opposition Azimio coalition against the government.

The leaders spent two days reviewing the report of the NADCO and the proposed reforms to the Constitution, election laws and other legal adjustments. The Ufungamano conference observed that the NADCO process was for the elite and produced elitist reforms.

NADCO proposes the creation of an office of the leader of the opposition, with two deputies. This is an office intended to represent the interests of the opposition and to among other things provide alternative policy agenda and constructive criticism of government policies.

Now, while some of the participants at the Ufungamano House event found the need for a role for the first runners up in a presidential election, they disagreed on the creation of an office with an occupant in mind.

The second issue is that, the NADCO report proposes an amendment to the Constitution to cure the current crisis where constituency boundaries have not been reviewed as required. You see, the last review was published in March 2012. The boundaries should have been reviewed between March 2020 and March 2024, given the upper limit of 12 years. We now stare at a constitutional crisis where there are no IEBC commissioners that would lead the process of reviewing boundaries.

And to cure this, NADCO team proposed that Parliament should be at liberty to extend the boundaries review window as long as a majority in both the National Assembly and the Senate support such a decision. This may appear curative to the current challenge, but the Ufungamano meeting found that to be abusive and selfish by the political class whom they found responsible for the current stalemate.

You see, something must be understood here. The current constituency and ward boundaries were created on the basis of the 2009 population census, that was 15 years ago. Had the review been undertaken and concluded on time ahead of the 2022 election, constituency and ward boundaries would have been based on the latest census report of 2019. Even if the political class succeeds to amend the law and facilitate new boundaries ahead of the 2027 elections, those boundaries will be based on population census that will have been 8 years old. And there is every likelihood that were the political class to succeed in amending the constitution, the boundaries for the 2037 election will be based on the 2019 census. Meaning, boundaries created based on 18-year-old data.

Yet the IEBC commission offices fell vacant in January last year. A process of recruiting new commissioners had kicked off but was stalled by the political class, in the name of talking to each other. And the High Court in February this year directed the Nelson Makanda-led selection panel to conclude the recruitment process. They never have and the political class is counting on the NADCO report to resolve the legal question.

The IEBC vacancy is a joke taken too far. It has been subjected to processes that no one is sure of the outcomes, like NADCO. And just incase we forget the extent of the impact of the current IEBC gaps, Banissa Constituency in Mandera County has had no representative in Parliament for over a year now, since MP Kulow Maalim Hassan died in March 2023. Four wards have also had no representatives in their respective county assemblies for months now, just because the IEBC lacks commissioners.

Gone should be the days when the political class took advantage of their privilege to pass laws that favour their existence. Gone should be the days when Kenyans took the peripheral benches to watch or just hear from a distance what their leaders were planning. It is disconcerting that for over a year the country has existed without commissioners of the IEBC and a majority of Kenyans move on with their lives as if that is how it’s supposed to be.

Gone should be the days when political convenience ruled a people. If a people cannot summon their national conscience, then what is the essence of a constitution? What is the essence of electing leaders to constitutional offices? What is the essence of leaders taking the oath of office to defend a constitution that they have no desire or intention to keep? It may be a small document that can fit many pockets, but that is the Constitution of Kenya. May the sense of the constitution abound.