Cord has drawn up radical proposals to amend the Constitution as it gears up to revive the Okoa Kenya referendum drive before the next General Election.
Sources have told Sunday Nation that Cord is getting ready to begin the push for more money to the counties, and an overhaul of the election management among other proposals contained in a draft Bill prepared by the committee of experts and which is to be unveiled this week.
The coalition, which brings together the Orange Democratic Movement (ODM) led by Raila Odinga, Kalonzo Musyoka’s Wiper party and Ford-Kenya led by Moses Wetang’ula, has also proposed a ward development fund to be managed by members of the county assembly (MCAs).
The fund would be crucial to the referendum’s success as MCAs will have to vote to approve it.
Other proposals in the Okoa Kenya Bill include raising from 15 per cent to 45 per cent the budgetary allocation to the counties by the national government, a new law on public jobs which caps the number of state employees that can come from one ethnic community and retaining 15 per cent of earnings from mineral resources in the county of origin.
The proposed draft Bill also seeks to make it mandatory for the government to issue identity cards to all eligible Kenyans, streamlining land administration by defining the distinct roles of the National Land Commission and the Lands ministry as well as a proposal to enforce Chapter Six of the Constitution on leadership and integrity.
In addition, Cord plans countrywide rallies to popularise the Bill which, if passed by half of the 47 county assemblies, will be presented at a referendum.
Kenyans will then be required to vote to approve or reject the Bill in its entirety.
Cord held a series of meetings on the referendum mid last-year and the renewed push could trigger more political activity.
The draft Bill is said to have more than 20 clauses.
Key among the proposals is the restructuring of the Independent Electoral and Boundaries Commission (IEBC), which Cord has blamed for its loss in the 2013 presidential election.
Cord leaders have persistently called for an overhaul of the electoral body and demanded that the commissioners resign or be sent packing.
IEBC, led by chairman Issack Hassan, has maintained it conducted the election properly despite technical challenges, and recently announced it was refining its systems.
The Okoa Kenya Bill proposes that the electoral body shall have seven commissioners who will be chosen by political parties in order of their numerical strength in Parliament.
If that were to pass, ODM, TNA, URP, Wiper, UDF, Ford Kenya and New Ford Kenya would each nominate a person to serve in the commission.
At the moment, the IEBC has nine full-time commissioners and a fully-fledged secretariat.
The Cord proposal rekindles memories of the pre-1997 election Inter-Party Parliamentary Group (IPPG) pact, which was part of the minimum reforms where Kanu, DP, Ford Kenya, Ford Asili and Safina each nominated a person to serve in the now defunct Electoral Commission of Kenya.
The opposition had come up with the IPPG which, though not anchored on any law, was meant to reduce the influence of President Daniel arap Moi in the appointment of ECK commissioners.
The arrangement ended before the 2007 General Election when Mr Moi’s successor, Mwai Kibaki, single-handedly picked commissioners to the ECK.
The draft Bill further proposes to have the returning officers in each of the 290 constituencies publish results of the presidential elections without making reference to IEBC’s national tallying centre.
The results so published by the returning officers, the Bill states, shall be deemed final and unalterable.
The duty of the national tallying centre in Nairobi will thus be to aggregate and announce the full results collated from the constituencies.
At the 2007 and 2013 elections, ODM and Cord alleged that results that were announced at the constituency levels were altered in Nairobi to favour their opponents.
In 2007, the claims partly led to the post-election violence as ODM claimed that PNU had rigged the elections.
Similarly after the 2013 presidential elections, Cord unsuccessfully challenged the election of President Uhuru Kenyatta at the Supreme Court.
Among the initiatives planned by the Cord team is to refine the Bill “because some of the proposals may make a lot of legal sense but may not meet political realities,” a member of the committee of experts, who did not want to be named, told the Sunday Nation.
The committee is chaired by Mr Odinga’s former legal adviser Paul Mwangi, with human rights activist Khelef Khalif and former Labour Permanent Secretary Beatrice Kitui forming the team. Lawyer Kethi Kilonzo was initially part of the team but pulled out.
According to the draft Bill “no one single community will control more than 15 per cent of public appointments and 30 per cent of the public positions will be reserved for minorities”.
Jubilee has been criticised for overlooking some communities in public appointments.
The Public Service Commission (PSC) in a December 2014 report that surveyed 168 agencies with a workforce of 94,286 revealed that the civil service is dominated by four communities, which take up more than half of all the jobs.
According to the PSC report, members of the Kikuyu community lead the pack (22.9 per cent) and were over-represented by 5.5 per cent compared to the community’s population.
It was followed by the Kalenjin (12.8 per cent), Luhya (12.2 per cent) and Kamba communities.
Together, they control 58 per cent of the workforce in government ministries, departments and agencies.
The Okoa Kenya referendum quest was started last year after the Jubilee administration spurned their demand for national dialogue ostensibly to deal with challenges that the country was facing.
The Jubilee MPs refused to engage with their Cord colleagues in the talks, arguing that the latter were looking to get into the government through the back door, having lost the 2013 General Election.
During the requiem mass for Fidel Odinga, the Cord leader’s eldest son, at the All Saints’ Cathedral in Nairobi last month, the subject of national dialogue was again brought up with President Kenyatta saying he was not opposed to dialogue.
“Fidel was a man who knew how to cross political, religious and ethnic divides and could reach out to anyone he wanted to. We need less shouting at each other and more of talking with one another,” President Kenyatta said.
With an eye on the elections and in an effort to erode the so-called tyranny of numbers that Jubilee has been riding on, Cord also proposes amending Article 12 of the Constitution.
According to the Bill, every Kenyan shall have the right to be issued with an identity card within three months of application or upon coming of age, whichever is earlier.
This will reduce instances where applicants, especially those from the North Eastern regions and border counties, wait for several months or even years to get an identity card.
On the division of national resources between the two levels of government — national and counties — the Bill provides that the devolved units shall be entitled to a minimum of 45 per cent of the revenue.
This will be “based on the preceding exchequer financial year” meaning that the national government will use the 2014/15 revenue as the basis for allocation to counties in the 2015/16 financial year.
The Council of Governors, through their parallel Pesa Mashinani referendum initiative, had also proposed increasing the minimum allocation to counties to 45 per cent from the current 15 per cent.
On Friday, the government proposed increased allocation to the counties to 35 per cent.
In a budget policy statement by the National Treasury, the government will be relying on the 2012/2013 accounts.
Cord also throws in a sweetener to MCAs in its proposal on allocation of resources by recommending the establishment of a county ward development fund.
According to the proposal, the MCAs will be entitled to five per cent of the revenues allocated to the counties as ward development fund.
With the National Treasury proposing to allocate Sh274.1 billion to the 47 counties in the next financial year, it means that on average a county would receive Sh5.83 billion.
It is from this Sh5.83 billion that the five per cent county ward development fund would be derived. This could translate to an average of Sh291.5 million to be distributed among the MCAs in each county.
The MCAs have been pushing for the county ward development fund but have so far not been successful with the Controller of Budget and the Transitional Authority adamant that it was illegal.
Nairobi County MCAs, for instance, passed Sh2.97 billion as ward development money last year, but the Controller of Budget Agnes Odhiambo rejected the proposal unless it was approved by the national law.
Moreover, to further give the counties something more to smile about, Cord proposes that 15 per cent of the revenues derived from natural resources would remain in the host counties where the minerals are obtained.
The host communities would receive an additional five per cent to develop the area, rehabilitate the environment and compensate the locals for displacement.
To deal with land matters in the country, the committee proposes to have the National Land Commission to deal exclusively with all public and community land and the “Cabinet Secretary to deal exclusively with private land.”
The clear separation of roles between NLC and the ministry of lands, the committee members told the Sunday Nation, will give the commission room to deal decisively with land matters.
Furthermore, the committee proposes to have the High Court enforce Chapter Six of the Constitution on leadership and integrity.
If adopted, any Kenyan will be free to move to the High Court for an order to relieve a public official who breaches the requirements of the office without making reference to the Office of the Director of Prosecution or the Ethics and Anti-Corruption Commission as is the case currently.