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Kenya – Factional struggles over Cord referendum plan

Factions are forming for and against the opposition Coalition for Reforms and Democracy (Cord)’s plan to force a referendum. The main fault line, unsurprisingly, is between Cord and the ruling Jubilee coalition of President Uhuru Kenyatta and Deputy President William Ruto, but Raila Odinga is tailoring his initiative to gain support on the Jubilee side of the political aisle by exploiting an existing turf battle between the Senate and the 47 county governors. Cord needs the governors’ support because, to obtain a referendum, it not only needs a million signatures on a petition (it says it plans to start collecting signatures this week), but also the support of 24 out of the 47 county governments.

Cord has yet to lay out the exact draft amendment to the constitution that it intends to put to the vote, but it increasingly seems that the opposition wants to focus on devolution and on granting more powers to the county governors at the expense of Parliament, especially the Senate. Spending at county level has been disappointing: over the past three quarters, the Controller of Budget has found a disproportionate amount of spending on recurrent expenditures and too little on development spending. In the third quarter of the fiscal year, the Controller announced in June, all county governments spent 86% of total expenditures on recurrent items, and 14% on development. In response, Mr Kenyatta signed the County Government Amendment Act in late July, which creates County Development Boards (CDBs) chaired by Senators, to oversee development spending at the local level.

The governors, unsurprisingly, are unhappy about the Senate’s new say in local-level spending. There is talk of court action to challenge the new law, and Mr Odinga quickly announced that his constitutional amendment would boost devolution, which seems to have resonated with governors. To further sweeten the deal for governors, Mr Odinga proposed that education functions be devolved to county government; this has resulted in a push back from the Kenya Union of Post-Primary Education Teachers (Kuppet), which “urge[s] Mr Odinga to keep a distance from education matters if he wishes to remain relevant in Kenyan politics,” and which promised that the referendum would “fail” if it touched on education. The governors’ clear support for Cord has also resulted in a reaction from their county assembly members, who complained at a forum on Monday, August 18, that the governors were pushing for more devolution without consulting the assemblies. Members of the County Assemblies (MCAs) are to hold a consultative forum this coming weekend, at which they will elaborate their position.

Jubilee has reacted in other ways. A Jubilee Member of Parliament (MP) has tabled a motion in terms of which Cord will have to pay the costs of the referendum – which the Independent Electoral and Boundaries Commission (IEBC) estimates at up to KSh8bn – if it fails. Jubilee MPs also said they intend to hijack the referendum initiative by introducing an age limit for presidential candidates specifically tailored to prevent Mr Odinga from running for president in 2018, when he will be 72. As we understand it, this cannot prevent Cord from introducing the amendment it wants, as the constitution specifically introduced the referendum mechanism to allow civil society to go around an unresponsive Parliament, but it shows how, as we had feared, Cord’s push is turning Parliament into a battleground between political coalitions.

Why do we care? This referendum issue is counterproductive in the extreme. Devolution so far has been wasteful and has not resulted in enough development spending at a local level, and the County Government Amendment Act was a sensible response to this problem. Mr Odinga will work against the interests of Kenyans in all counties if he removes Senate oversight over this spending. The very issue of the referendum, meanwhile, is dividing the political class and threatening to increase tribalism. The whole business is very distracting and contrary to the spirit of the negotiations that yielded the new constitution in the first place, and looks set to drag on for several months at least.

Analyst: François Conradie

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