Weekly Newsletter - Issue No 328
12th September - 18th September 2022


Democracy beyond the ballot

Since 2007, the world has been observing the International Day of Democracy every 15th September following a resolution passed by the United Nations General Assembly. In those 15 years, Kenya promulgated a new Constitution (2010) and held four general elections that have since shaped Kenya’s democracy.

The Constitution, under Article 38, grants every eligible Kenyan the freedom to make a political choice through the ballot. While voting is considered one of the most effective ways that a citizen can exercise their democratic right, many Kenyans are slowly losing faith in the ability of causing effective change through the ballot. A reflection of the recently concluded general elections proves this much, from a poor turnout during the mass voter registration drive conducted by the IEBC in two phases to an estimated 35% of the registered voters snubbing the election.

In fact, this election registered the lowest voter turn out in 15 years. The likelihood that this will be repeated in the next election is very high given the sentiments shared by citizens over time. Many cite lack of trust in the electoral process and little evidence on elections being a catalyst of change as some of their reasons to stay away from the elections. Rightfully, so.

The recent election, in a way, validates non-voters. Outside issues of electoral malpractice and electoral corruption, elections in Kenya have, unfortunately, and historically, yielded some questionable leaders. An article on the Nation revealed that at least 12 Members of this 13th Parliament are battling court cases with charges ranging from murder and fraud involving billions of taxpayers’ money. These are individuals who had been flagged either civil society organizations (CSOs) such as National Integrity Alliance (NIA) or the EACC with the hope that IEBC would block their candidature. Yet somehow, a section of Kenyans saw it fit to vote them in.

However, before and beyond the ballot, citizens must remember that they still can and should exercise their democratic rights. Article 1 of the Constitution vests all sovereign power in the people and the people ought to exercise it in full. Citizens, therefore, have a duty to vet and question their leaders, whether or not they voted for them. Citizens have a duty to call for the strengthening and funding of the Judiciary and other institutions of justice to nab those who violate the law.

Citizens have the duty to refuse to be used as pawns that stand in the way of justice when a leader from their region or community is facing charges and terming it as witch-hunt. Citizens have a duty to influence policies and laws made on their behalf. Citizens should vet and evaluate the performance of their leaders using sound indicators that will then inform their decision to retain a leader or recall one.

The citizens, however, cannot fully realize their democratic freedoms if responsible institutions do not undertake their mandate faithfully.
A whistleblowing citizen, for instance, needs to be guaranteed that there will be mechanisms put in place for their protection. Same goes for the citizen who may wish to file a petition to recall a member of Parliament or County Assembly. The voting citizen needs to instead be faced with the task of picking the best not the lesser evil on ballot. Institutions in charge with ensuring that the Chapter on Leadership and Integrity is actualized, therefore, need to up their game.

A citizen involved in the law-making process needs to have a proper public participation framework in place.

The extent to which a citizen will exercise their democratic rights largely depends on certain enabling factors being in place. Whether it’s through executive orders or introduction of laws and amendments to Acts or through judicial petitions, effort needs to be put in empowering mwananchi.
With a new government in place, constitutional institutions are faced with the hard task to shift the narrative to encourage the citizen to take a more active role in their governance.  

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News of the Week

Businesses warn of job cuts in KRA tax adjustment plan

Traders in the alcohol value chain have protested plans by the Kenya Revenue Authority (KRA) to adjust excise taxes for various products from October 1, claiming the step will kill more than 35,000 jobs and lead to a loss of Sh15.7 billion in income by workers. KRA has indicated excise duty on the products will increase by 6.3% effective next month in line with average annual inflation.
In a series of memoranda, farmers, bar owners, and entertainment outlets said raising excise duty on commodities including beer, spirits, and wines, will raise their overall tax burden by Sh20 billion and disrupt the sector, with sorghum and barley farmers expected to lose up to Sh588 billion. They also complained that 300 direct jobs will be lost, 864 jobs along the alcohol distribution chain, and 30,600 jobs in trade.
They said it was unfair to plan another raise on taxes, when they have not recovered from the tax review tied to the Finance Act since July 1.

Taxpayers to foot SGR bill following President Ruto's port order

An order issued by President William Ruto reverting cargo clearing services to the Mombasa port is set to shake up the revenue performance of the standard gauge railway (SGR), shifting the cost of financing the Chinese loan used to build the line to the taxpayer. While Dr Ruto indicated that reverting the operations would restore thousands of jobs that were lost in Mombasa, the overall implication will be on taxpayers.
The expected immediate impact of reverting port operations to Mombasa will be a shift to road haulage, slashing cargo business for the SGR. This will come with implications for the taxpayer since the SGR has debt obligations that the National Treasury would have to foot through public coffers.

Gender rule to cost extra Sh 298m annually

Taxpayers will have to spend an extra Sh298.2 million every year in salaries for additional MPs required to meet the controversial two-thirds gender rule if lawmakers approve proposals by President William Ruto. To comply with the requirement, Parliament must craft a formula to accommodate an extra 34 women while the Senate needs one female to comply with the rule as enshrined in the Constitution.
Each of the 416 member-bicameral Parliament earns a monthly salary of Sh710,000. This means that the 35 MPs needed to comply with the gender top-up rule will earn a monthly salary of Sh24.85 million or Sh298.2 million every year. The Sh298.2 million excludes other perks such as Sh5,000 committee sitting allowance, mileage allowance as well as car loan and mortgage.
The National Assembly requires 116 female lawmakers to meet the two-thirds-gender rule. However, 29 women were elected from a single-member constituency and 47 women representatives on August 9. Six were nominated bringing the total number of female MPs in the National Assembly to 82. This means that the National Assembly will require a total of 34 women to meet the two-thirds gender rule.
At the Senate, three women were elected while 18 were nominated bringing the total number to 22. The Senate requires one more woman to meet the requirement. If the 35 top-up MPs make it to Parliament, Kenya will have a total of 453 lawmakers including the Speakers of both Houses.

Ruto oversees swearing in of six judges

Six judges appointed by President William Ruto were sworn in on Wednesday in an event that he oversaw at State House. President Ruto appointed Korir Weldon Korir, Aggrey Muchelule, George Odunga and Joel Ngugi as judges of the Court of Appeal, while Makori Evans Kiago and Judith Omange were appointed as judges of the Environment and Land Court.
Justices Muchelule, Odunga, Korir and Ngugi were nominated by JSC for promotion to the Court of Appeal in August 2019 while Mr Makori (Chief magistrate) and Ms Omange (High Court Registrar) were recommended for promotion to be judges in the Employment and Labour Relations Court. The President also promised to allocate an additional Sh3 billion to its annual budget every year. 

Ruto backs push for the rich to pay more to NHIF

President William Ruto has backed the push to have the rich pay higher monthly contributions to the National Hospital Insurance Fund (NHIF), months after a similar proposal was shot down by Parliament. Dr Ruto said that NHIF contributions will be pegged on the monthly pay of workers, in a bid to increase the funding pool of the scheme.
NHIF early this year proposed that contributions of workers earning more than Sh100,000 should be calculated as 1.7% of their pay. But this was rejected by the outgoing Parliament, forcing the insurer to go back on the drawing board. The move by Dr. Ruto, who now has the backing of most members of parliament to support the NHIF proposal, comes as a major relief to the national insurer which has been looking for ways to increase its funding to implement the universal health plan. Currently, workers earning over Sh100,000 pay a fixed monthly contribution of Sh1,700 to NHIF.

Public Participation

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