Constitutional shibboleths and social media animus

It is a fraught exercise to bring strong opinions on Twitter. Those with whom you may have interacted with previously, and who have become reliable responders to your 280 character musings, will not find it unusual that you may sometimes state things in a certain way. The vast majority though, might react in less-generous ways. Particularly when you find it very difficult to go along with their very wrong takes on the Constitution. Or the Standing Orders of each House of Parliament. Or the role of the Attorney-General when it comes to the legislation-making powers of the Government.

For example, some might not respond favourably when you point out the obvious: Articles 255, 256 and 257 collectively deal with the amendment of the Constitution. Article 256 deals with amendment by parliamentary initiative. Article 257 deals with amendment by popular initiative (of which much was heard during the halcyon days of the BBI fiasco). Article 255 decrees which constitutional amendments must be subjected to a referendum.

The Senator leading the Nandi County delegation in the Senate proposed several amendments to the Constitution. Four of them are particularly important. The proposed amendments to Articles 101, 136, 177 and 180, would have the effect of extending the term of Members of Parliament, the President and deputy President, members of county assemblies, and Governors and Deputy Governors from five years to seven years. Crucially, he does not propose any amendments to Article 142(2) or 187(7), to limit the term of the President and Deputy President, and Governor and Deputy Governor to one term only.

Someone on Twitter said that the introduction of the Constitution of Kenya (Amendment) (No. 2) Bill, 2024, in the Senate was an attempt to escape the requirement for a referendum on the amendments relating to the term of these elected State officers. I pointed out that this was incorrect; that regardless of whether the proposed amendments were through parliamentary initiative or popular initiative, they would still require to be ratified at a referendum. They (and some of their acolytes) were not amused.

It is a consistent occurrence that when people speak on the Constitution, many forget to read the provision they are speaking on with other related provisions. In this case, the fact that the senator had said nothing about a referendum was taken to be his intention to evade the referendum, forgetting that the referendum would be done, regardless of whether the senator said anything about it or not. If the four amendments were not subjected to a referendum, they would not become the law of the land. It really is that simple.

Then came the inexplicable allegation that the Attorney-General, in addition to being unqualified to hold the office of Attorney-General (which she definitely is), had refused or failed to advise on the propriety of the Bill. This flies in the face of Parliament's powers under Article 94(5). Only Parliament can make law in Kenya. The mandate of the Attorney-General under Article 156(4)(a) as the principal legal advisor to the Government does not mean that if the Senate does not seek the Attorney-General's legal advice before proposing amendments to the Constitution, the Attorney-General cannot render such legal advice after the Bill has been published on the propriety of proceeding with the Bill. The advisory power of the Attorney-General can be exercised at any time.

In any case, in my opinion, the proposed amendments are not "unconstitutional"; if the two Houses of Parliament pass the amendments with the necessary thresholds at each stage, and the amendments are affirmed at a referendum, then there is little that the nay-sayers can do about it other than challenge the process in the Constitutional Court. After all, the constitution, including constitutional amendments affirmed at a referendum, are the ultimate expression of popular will, no matter who proposed the amendments or why the amendments were proposed.

I don't believe the four amendments are going to pass in either House or, if they do, that they will find support among the people at a referendum. No one wants elected state officers to pitch camp for seven years without seeking a fresh mandate from the people. But the debate that the amendments have elicited, particularly the ones dealing with the presidential term, have successfully obscured consideration of the implications of the other amendments, like the one to Article 96(3) on the Senate's oversight over national revenue allocated to county governments. The proposed amendment would render the role of county assemblies moot, undermining devolution in the most destructive way possible.

I am not claiming that my views on the Bill, or the role of the Attorney-General in its consideration, is infallible or unassailable. They definitely are. But what challenge you mount against them can't be, "Please just stop", only because I have not adopted a shibboleth that you intend to defend beyond all reason on account of an ill-explained animus against a State officer.

Conservative? What a joke.

I can't remember when he said it, but Kenya's first Leader of the Majority Party, in one of those strange political rallies he was fond of attending so that he could pledge fealty to his Dear Leader, once declared The National Alliance (or was it the Jubilee abomination it eventually morphed into?) to be Kenya's Conservative Party, with the same ideological leanings of the US's Grand Old Party and the UK's Tory party. He didn't say that he was a conservative; only that he was a member of a Conservative Party.

In this week's Sunday nation, the Governor of Murang'a declared that he is a conservative, leading into the same "small government" predilections of Ronald Reagan and Margaret Thatcher. Kenyan politicians are an astonishing group of people.

It is now safe to say that Kenya's politics is no longer moored to any kind of ideological framework. It is concerned, mostly, with taking money from the masses and wasting it on white elephants and thereafter, distracting the hungry, jobless masses that the reason their lives are so difficult has something to do with "corruption" and "tribalism". The declaration, "I am a conservative" or "My party is a Conservative Party" is the political system dipping its toe in the pond to see whether or not the people will fall for that shit because if the people do, indeed, fall for it, then they can watch as ever greater trillions of shillings are poured down the drain of "development" even as their lives continue to suffer degradations of unimaginable scale.

One of the most injurious things that Kenyans have done to themselves in the name of the Second Liberation is to separate the masses from national political institutions, particularly political organisation and political parties. Political decisions, particularly the choice of legislature candidates and allocation of scarce tax shillings, are now made by a tiny cabal that is not motivated with the greater common good. The most effective way to separate the people from their government has been to separate people from the toys they need for their political education, including music, theatre, sculpture and fine arts.

When Kenya's winning long distance runners returned from the Paris Summer Olympics in triumphal form, they were confronted with one of the most hideous sculptures ever foisted on an unsuspecting public. It was a statue of woman marathoner, put together in the most slapdash way imaginable, and placed installed in the dead of night, to be sprung upon a people who could neither process the insult nor work out how to punish the offender.

What I found interesting is that the discourse around the crass demonstration of the indifference that the state and its agent's treats the people was how the one of the reasons the statue was removed from public view without an explanation was that foreign capitals, particularly in the United States, have celebrated Kenyan athletes in deeply meaningful ways. The sculpture was removed because it made Kenya look bad in the eyes of the world; not because the asshole that had ordered its installation was even remotely remorseful for his crime.

So while Kenyans' minds are slowly poisoned against any kind of learning and political education, and the wool is pulled over their eyes with rambunctious "debates" about the "impeachment" of un-useful state officers, the more cleverer of that perverse class introduces ideas about political ideology that they neither understand nor know how to explain to the people they purport to lead. Kenyan political parties lack any form of political ideology so how could the politicians who sit atop of that pile of empty briefcases claim to possess political ideologies of any kind? These men have failed to empower the people they govern to participate fully in political decision making and in order to hide their inadequacy, they try and paint themselves as Margaret Thatcher or Ronald Reagan when in actual fact they are the caricatures portrayed by Mr. Bean and Benny Hill.

The powerful keep making terrible mistakes

No one seriously thinks that the law is deployed for the benefit of the people anymore. It is almost exclusively used as a cudgel to beat submission into the thickest of skulls, particularly the thickest skulls of the young people challenging systems of power and oppression. What little lawful behaviour that occurs in day-to-day life is only by chance. The legal systems and frameworks we have to day only exist to ensure that the State, and those who benefit from the use and abuse of State power, continue to be preserved, even if it means it is at the expense of the weak and vulnerable.

What w have come to describe as the international humanitarian law lays bare the abuses of the powerful and the desperate attempts at survival of the weak and vulnerable. In Palestine, the Palestinian peoples have endured near-starvation at the hands of the Israeli Occupation Forces for the last twenty-five years. The international community has stood by and watched as international humanitarian law has been debased by the Israeli Occupation Forces. And when the international community as intervened, it has been to provide more and more destructive bombs to the Israeli Occupation Forces with which to conduct a systematic destruction of the Palestinian people.

This kind of violence is witnessed at national level too. In India, Hindutva, the supremacist ideology adopted by the ruling coalition in the central government, has been used to target Muslims and Dalits with increasing violence. Constitutional changes have been rammed through the Indian Lok Sabha to deny the Muslims of Kashmir any semblance of self-determination. In dozens of cities, towns and villages, Dalits have been assaulted and murdered on false accusations of cow slaughtering. In both instances, the law has been useless in preventing the atrocities being visited on minorities in India.

In Kenya, marginalised communities have been on the receiving end of environmentalists and environmental law. They have been violently pushed out of their lands in the name of environmental conservation. It is irrelevant that their traditional land use systems have preserved and conserved the environment better than than the modern fortress-like systems being deployed against them today. Because they do not have the population and money needed to push back against their oppressors, they have been reduced to subsistence levels so desperate that they have little or no energy to fight against their plight.

It used to be that there was a. pretence at enforcing the law equally and equitably. That pretence no longer obtains. The exploited can no longer rely on the law to offer them protection or restitution. And when they take their case to the streets, the law is used as a weapon to kill and maim with impunity. If the powerful have their way, even the idea of protest will be illegal. However, the powerful have made a terrible mistake.

The UK had the Gundpower Treason and Plot. The French had the Revolution against their oppressive nobility and beheaded the lot of them. The North American colonists, after their genocide of the First Nation, rebelled against their oppressive king. The United States, against all odds, faced the Black Power movement of the 1960s and backed down. More recently, Bangladesh has exiled its oppressive Prime Minister and Sri Lanka toppled its oppressive president. Sooner or later, the weak and vulnerable will have their backs against the wall and the only choice before them will be death or rebellion. No one willingly chooses death. Sooner or later, systems of oppression are rend asunder. It is never non-violent.

Listen to what Gen Z is saying. Hear them.

Kenyan Gen Z seized the moment that was made for them and threw down the gauntlet at the feet of the Kenyan State. With the memory of the bitter betrayal by Parliament in 2023, Kenya's youngest adults were not going to let the Finance Bill mortgage their futures to an economic promise they had every reason to believe would not be kept. The signs that they were onto something were everywhere, least not being the details of the Finance Bill itself that proposed to tax the ever living snot out Gen Z even before they had a chance to earn a proper living.

Gen Z members of Parliament were offered the opportunity to keep faith with their brethren outside Government, and some of them didn't have the backbone and moral clarity to take a stand. One of the most disappointing parliamentarians is Linet "Toto" Chepkorir. When called upon, she had little of use to say about the Finance Bill and voted for it at the Second Reading. She had shown so much promise when she campaigned for the Woman Representative seat of Bomet at the last general election but since taking office, she has behaved in the same exact way as the venal and avaricious old-timers she found in the Augean Stables that are the chambers of the National Assembly. Should the opportunity present itself, the good and sensible peoples of Bomet County should recall her from office and elect someone else with a better moral fibre.

However, regardless of the way parliamentarians continue to betray the youth of Kenya, Gen Zs appear to be taking their first definitive steps in shaping their now destiny, and the protest they have mounted against the Finance Bill appears to have their full-throated support, even if it might end in tragedy, as the police killing of Rex Kanyike Masai shows. They do not appear to be in a mood to back down and the arguments they have marshalled against the Bill continue to discombobulate senior officers of the Government.

The President appears to find himself in the same uncertain place his predecessor did in the end-stages of their first term. He has articulated his economic recovery plans for the nation on many occasions in many forums, but few people seem to believe him when he says he has the people's interests at heart. Certainly, going by the rageful language deployed by some of the anti-Finance-Bill protesters, Gen Z does not take the President at his word and would rather the Finance Bill in its current form be binned and everyone starts the budget process from scratch. They are not necessarily wrong.

Well-meaning "adults" with very good English have been deployed across many media platforms to explain why Gen Z is wrong about the Bill, about the economy, about the President and about the Government's economic plans for them. We have been reminded about the "deadline for passing the budget" and terrorised with threats of dire consequences if the "budget is not passed on time". This kind of scaremongering is quite tedious, to be honest.

If we fail to pass the budget by the 30th of June, I promise you, the world will not end and Kenya will not die. The Government will face serious difficulties in its spending plans, but I promise you, really, the Government will not fall, the sky will still be up there, and the men and women wringing their hands in fear will adjust. Search through the text of the Constitution and I promise you, there is no mention of a June 30th deadline or a mandatory requirement to enact an annual Finance Bill. The only constitutional requirement regarding the Government's spending plans is that they must be approved by the National Assembly. The only Money Bill that MUST be approved by Parliament in order for the Government to spend taxpayers' money is the Appropriation Bill.

Do not miss the forest for the trees. The Finance Bill is not THE tax law. The tax laws are the Value Added Tax Act, Income Tax Act, Excise Duty Act, Miscellaneous Fees and Levies Act, East African Community Customs Management Act and the Stamp Duty Act. They are the laws that impose taxes on income, business activities and commodities and services bought, sold, imported into and exported out of Kenya. The Finance Act is merely a tool for varying and changing the rates of tax. That's it. 

If the tax rates remain unchanged year on year, the Government will not fall. It's will still continue to collect tax. The only thing it will need to spend those taxes is the approval of the National Assembly - given through the Appropriation Bill. So, perhaps, we should listen to Gen Z. They may have none of the sophisticated English being deployed against them, but they are saying something worth listening to.

The law will kill public participation

The Constitution imposes an obligation on the State to facilitate the participation of the people in governance, law-making and policy-making. This obligation is articulated in Article 10, Article 118 and Article 232. The Constitution does not mandate that a law be enacted to provide for the manner in which the participation of the people shall be facilitated. In my opinion, it does not require a law for the people to participate in governance, law-making or policy-making.

It is not always good idea to legislate the implementation of the obligations of the State. Laws are terrible tools; they limit you to what is enacted, and they can, quite often, prove very inflexible when they are being interpreted, applied, administered or enforced. Despite the lack of a written public participation law, Kenyans have forcefully inserted themselves in the affairs of the Government. The most obvious way that they have done so is through public interest litigation. But maandamano, with the police beatings, shootings, and malicious prosecutions that ensue, have proven a much more effective form of participation of the people, one that has compelled the Government to concentrate its mind in ways that have been very disconcerting and uncomfortable.

I am not opposed to legislation; but seeing the way legislation has been watered down, ill-drafted, mutilated by amendments, undermined by official disinterest and damaged by constitutional petitions, legislation almost always has unintended effects that negatively impact the stated object of the legislation. If Kenya enacted a written law on participation of the people, it is almost certain that the law will be hijacked by the Government and the overall object of fostering transparency and accountability in governance, law-making and policy-making will be severely watered down. Just look at how difficult it is to recall an elected parliamentarian despite the fact that there is a whole written law for that purpose (Part IV of the Elections Act, Cap. 7).

It is not the law that confers on us a right to participate in the affairs of our government; it is our inherent citizenship which the State can neither deny nor revoke that confers on us that power. We are sovereign, regardless of what the legislation enacted state, and our sovereignty grants us the right to weigh in on any matter of national importance without mediation by an Act of Parliament. Attempts to legislative the form of the participation of the people (or the consequences of that participation) will lead to one inevitable outcome: the criminalisation of specific acts of participation that the State has attempted, in various forms, to abrogate and suppress. Worse, where the outcome of the participation of the people is programmed into the legislation, we will spend so much time on the technicalities and administrative nature of that participation that we won't notice that we have lost sight of the forest for the trees.

In Kenya, the way in which laws are designed is intended to undermine fundamental freedoms and rights of the individual, especially when it comes to any attempt to hold State officials to account for their acts of commission and omission. What many citizens believe will be a boon to public participation will come to haunt them if it is enacted. Instead, I would advice that the process of engaging with the State, its officials and its institutions should proceed without any of the shackles of an Act of Parliament but instead through the development of a civic culture (and a robust public interest litigation tradition).

We need to learn, again, how to think

I don't think the parliamentarians of the National Assembly will heed the call and #RejectFinanceBill2024. They will tinker. They will vacillate. They will fulminate fulsomely. They will vamp for the cameras. But they will absolutely, definitely not reject the Finance Bill. They will, instead, vote overwhelmingly for the tax proposals contained in the Bill. Not one tax will be rescinded. Not one exemption that has not been approved by the grandees of the IMF will be granted. The hundreds of billions that the National Treasury is looking to raise from the Bill is all that will occupy the minds of the worthies of the National Treasury.

The challenge that the prospective maandamano face tomorrow has been occasioned by a poor understanding of the budgeting process and deliberate vagueness by the mandarins of the National Treasury. More and more Kenyans are familiarising themselves with the ins and outs of the Public Finance Management Act on which the budget process relies. They have a working understanding of when the Finance Bill (and the accompanying budget documents including the Appropriation Bill, Estimates of Revenue and Expenditure, Budget Policy Statement and Budget Review Outlook Paper) is supposed to be introduced in the National Assembly.

But they don't have working knowledge of how and when the tax proposals contained in the Finance Bill are made. They'd on't know who is consulted or how. They don't know how the nabobs of the national government pick which tax proposals to adopt and which ones to bin. They have no idea how the President's Council of Economic Advisors pick which industries to promote, which ones to let sink or swim, and which ones to roll back. They don't know whether or not the decision to impose a new tax is a legal issue or an economic issue. All they know, for now, is that the Budget is sent to Parliament on the 30th April of each year and enacted not law on the 30th June of each year.

That kind of ignorance is unhealthy. It allows conspiracy theorists with axes to grind to plant disinformation and misinformation, foment disaffection among the people not just for their government but their fellowman, and spread chaos abroad in the land. It is an historical irony that in the digital age, so many more people know so little about their government and how it functions.  With so much information at our fingertips, literally, it is amazing how easy it is to sow confusion by dropping a few tasty conspiratorial statements into the ether and watch an entire nation freak out over shit they should absolutely, definitely ignore.

When it comes to matters which we must hold our elected and appointed government officials to account, we need to be more strategic and intentional in which information we focus on and what we ignore. This is made harder when every institution designed to educate and inform has been hollowed out by greed and corruption. It falls on individual effort, but that effort is so much the harder when we are bombarded with distractions all day long. #RejectFinanceBill2024 has in all certainty been infested by the forces of chaos and confusion. While it will go off without a hitch (taking into account Kenya's rung-wielding police tendencies), it will not lead to an abrogation of the Finance Bill. It would behoove us to teach ourselves, afresh, how to think.

Omtatah's legacy

Senator Okiya Omtatah Okoiti, MP, has contributed immensely to the principle of participation of the people as contemplated in Article 10 of the Constitution. Through his public interest suits in the Constitutional Court, he has helped to demystify what the State can and cannot do. In the years since he was elected as senator, he has turned his public-spirited focus on the national Budget. Whether or not he has a firm understanding of the constitutional and statutory framework underpinning the budget process is irrelevant; he has compelled the Government and citizen alike to pay attention to sometimes hard to grasp concepts relating to the raising of national revenue, the appropriation of public funds, the allocation of public money to public goods and services, and the role of the citizen.

His success in the Constitutional Court in 2023 is a testament to how much even the Judiciary has come to appreciate the role of the citizen in budget-making. The injunction on the implementation of various sections of the Finance Act, 2024, have concentrated some minds, while others are still stuck in the pre-2010 constitutional past, where they imagine fiat is all that is needed to get things done.

In 2023, when the National Treasury proposed the "affordable housing levy", bar one or two misguided trade union bosses, Kenyans rejected the levy in toto. They said so unequivocally. The Finance and Planning Committee of the National Assembly pretended to take the people's objections to heart. But rather than remove the offending proposed law from the Finance Bill, they made it even more draconian: a mandatory tax without even the possibility of a refund or the certainty of access to an affordable house by the taxpayer. That dishonesty is partly why the High Court declared the affordable housing tax to be unconstitutional and annulled it. The Court of Appeal after the traditional period of stay of orders pending appeal had lapsed, was not convinced to extend the stay, and the offending tax was abolished. It has resurfaced as a law unto itself (and Sen. Omtatah is fighting that one as well in the Constitutional Court; may he taste victory once more and have the Affordable Housing Act, 2023, annulled by the Constitutional Court, again).

In 2024, seemingly without having taken heed of the lessons of 2023, the National Treasury has proposed a motor vehicle tax (previously christened "motor vehicle circulation tax"). The rate is set at 2.5% of the value of the motor vehicle, with a floor of 5,000 shillings and a ceiling of 100,000 shillings. Every single Kenyans who has been asked (bar one or two truly misguided souls) has rejected the tax, the rationale for the tax, and all exhortations to see it as a net-positive good. The Finance and Planning Committee, once again, pretends to care to listen to the vehemence expressed by Kenyans against the proposed tax (and all the other retrogressive tax proposals contained the Finance Bill, 2024). Kenyans await with bated breath the Report of the Committee on the Bill that is going to be tabled in the National Assembly at the Second Reading.

What is becoming increasingly clear is that Kenyans are taking ever keener interest in how the Government makes decisions. While the organs of Government are yet to fully embrace more direct participation of the people in their affairs, some of them have began to change the way the decide matters affecting Kenyans' lives. They are inviting, and incorporating, more public input on policy, legislative and regulatory proposals than in the past. This may complicate Government decision-making, especially with regards to its foreign obligations, but no one can argue that it is a net-negative thing. The whole point of participatory democracy, the kind contemplated by the Constitution, is that the purpose of the State is to serve the public good, rather than the State serve itself with or without the permission of the public. Sen. Omtatah is unlikely to be celebrated in full in his lifetime, but may his public-spirited legacy last a millennium.