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 Why BBI Is A Stamp Of Approval On Perpetual Discrimination Of Marginalised Communities

By Hassan Adow

Finally, the much-awaited BBI report was unveiled by the steering committee led by the Garissa Senator Hon Yussuf Hajji. It was received by President Uhuru Kenyatta and the former Prime Minister Hon Raila Odinga on Wednesday 21st October 2020 at Kisii Lodge. 

The Building Bridges Initiative popularly known as ‘THE HANDSHAKE” was as a result of the famous handshake between President Uhuru Kenyatta and Orange Democratic Movement Leader Hon Raila Odinga following the hotly contested 2017 general elections. The two leaders agreed to bring Kenyans together under a 9-point agenda including inclusivity, devolution, ethnic antagonism, lack of national ethos, divisive elections, shared prosperity, corruption, safety and security, responsibility and rights.

The steering committee proposed a raft of amendments to the constitution of Kenya as well as key policy changes that are geared towards inclusivity and a shift from winner-takes-all governance system. On the general outlook the document has good proposals that can bring substantial benefits to the ordinary Kenyans if implemented. 

The steering committee has smartly inserted some ‘enticing’ clauses in the document to popularize the report among Kenyans and people from all walks of life so that it earns an overwhelming support through both a referendum and parliamentary initiative. For instance, the document is recommending seven-year tax holidays for the youth starting small businesses, four-year grace period for HELB loanees, Ward Development Fund, 35 per cent minimum allocation of shareable revenue to counties inter alia. 

However, beneath the veneer of these attractive recommendations lie some grey areas that if not reviewed can pose serious negative socio-economic ramifications to the historically marginalized communities in Kenya.

To begin with, the document is proposing amendment to Article 203 on the criteria for determining the equitable Share among county governments, by inserting new paragraphs to clause 1.  A new paragraph (n) reads “the need to ensure that the average amount of money allocated per person to a county with the highest allocation does not exceed three times the average amount per person allocated to a county with the lowest allocation”. This paragraph is strategically placed to positively reward the proponents of one-man-one-vote-shilling and victimize the less populous counties by overemphasizing population as a parameter for revenue sharing. The effect of this is that allocation to counties will be tied to the county with the lowest per capita allocation and in this case Nairobi city county. 

In the current FY 2020/21 Nairobi county has been allocated equitable share of kes15.9 bn against a population of 4.397 million meaning a per capita allocation of kes3600. In contrast Lamu county with a population of 143,920 has been allocated 2.7 bn shillings as a share of the 316.5 billion shillings   allocated to counties as equitable share. That is to say a per capita allocation of 18,760 sh making it the county with the highest allocation per person (five times more than Nairobi county). Under the changes to article 203 of the CoK, Lamu county cannot receive more than 1.5 bn shillings meaning it would lose about 1.2 bn shillings if this amendment was to be used on the 2020/21 revenue sharing framework. In other words, less populated counties like Isiolo, Wajir, Mandera, Garissa, Marsabit and the rest of marginalized counties would be disadvantaged by this amendment and even with the 35pc minimum allocation proposal, these counties will have no significant additional resources compared to the populous counties that will reap big from this deliberate revenue sharing model. In simple terms this is akin to giving with one hand and taking away with the other.

The Senate under Article 96 of the Constitution represents the counties and serves to protect the counties and their governments. Under the BBI proposals, the power of the senate has been whittled down as Article 123 is repealed thereby affecting its decision-making capacity. The role of the Senate in Division of Revenue Bill is also watered down as more powers are given to the National Assembly. Kenyans can recall that over 20 counties mainly the marginalized regions risked losing billions of shillings following the introduction of third basis for revenue sharing formula that almost polarized the country. It was through articles 123 and 203 that salvaged the ‘losing counties’ from the jaws of the ‘Deep State’ after some senators in solidarity with the counties that would be affected by the new formula refused to delegate their voting rights even after they were unlawfully detained by the state machinery.  There is fear that by interfering with the powers of the Senate, the State can easily profile some counties and have its discriminative revenue sharing formula go through the Senate and the National Assembly especially under a dispensation where the president wields a lot of powers.

Article 254 of the Constitution of Kenya has established an Equalization Fund which is 0.5 per cent of all the revenue collected by the national government each year. The fund is meant to address historical marginalization and unequal development across Kenya. Despite this provision, the national government has been withholding this money since 2015 and is yet to reach the 14 counties that are beneficiaries. Interestingly, the Building Bridges Initiative Report has not made any reference to this and instead gave this matter a wide berth. The report has also steered clear of the implementation of TJRC report and in this respect, the document is not speaking to the real issues that are faced by the pastoralist and marginalized communities. 

The BBI’s recommendation to Article 97 of the constitution is also meant to perpetuate marginalization. The additional parliamentary seats (70 in number) will be based on proportional representation. This means that vote rich constituencies will have more than one MP in the next parliament. Under this arrangement only 21 out of the 47 counties will benefit and marginalized counties will miss out on this with zero share. For example, Nairobi will have additional 22 members of parliament, Kiambu (10), Muranga (5), Nakuru (6), Homabay, Machakos, Makueni, Kirinyaga, Laikipia, Kajiado, Siaya will each get one additional slot.

The BBI report has not also addressed equitable share of resources at the national level. Despite 85 per cent of the country’s total shareable revenue remaining at the national level, the national government has been allocating billions of shillings to developed counties mainly to Mt Kenya region where most of Jubilee’s flagship projects are concentrated leaving counties that are marginalized with little or no share of the national cake. This skewed distribution of resources has been occasioned by lack of proper and defined resource sharing framework in the existing legislations. The pastoralist communities were expecting the BBI report to speak to this concern by proposing legislations where the national treasury makes budgetary provisions for every county so that the national cake can reach every nook and cranny of this country. It is a crying shame that 57 years after independence, the main road connecting the north eastern region to the other Kenya remains untarmacked in spite of the national government spending trillions of shillings every financial year. Kenya remains one of the most unequal societies in the world. Poverty and underdevelopment are high in Northern region compared with other Kenyan counties and little is being done to reverse this unfortunate trend. 

More importantly, Article 225 of the constitution has been proposed for amendment to give more powers to the Cabinet Secretary for National Treasury. This is a well-orchestrated machination to frustrate devolution since the Cabinet secretary can now stop funds from going to a county government on vague grounds. The tragedy is that the State can use this provision to deny funds from reaching its perennial targets: Marginalized counties. Under imperial presidency and a weak judiciary such a possibility cannot be ruled out. In addition to this, the BBI report proposes that no county government can spend 5 per cent of its budget on a single project without the approval of the Parliament. This is clawing back the gains made under the 2010 Constitution.

 

In a country that is grappling with runaway public debt to the tune of 6.7 trillion shillings and a budget deficit of close to 9 per cent of GDP, one expected the Building Bridges Initiative to come up with ways to manage this challenge. Surprisingly, the document is serving to add more burden on the taxpayer through creation of unnecessary political positions without any plan to get the country out of the financial hole. The proposals are too expensive to finance and implement and there is little doubt that at some point the 35 per cent minimum allocation to devolution will prove hard to come by.

 

By and large, there is a need to review some of the provisions under the BBI report that are discriminative to sections of this country so that the agenda of inclusivity can be achieved. Leaders from pastoralist communities must initiate this discourse and play a leading role in terms of demanding a robust and candid discussion around the grey areas in the report. The revision of the 2019 census results for North Eastern counties, the implementation of the TJRC report, the timely release of equalization fund, fair horizontal distribution of resources among counties just to mention but a few should be our irreducible minimums before we give the Building Bridges Initiative a clean bill of health.  

Hassan Adow, CPA- is an economist and social policy analyst based in Wajir county

The views expressed in this article are solely of the writer.

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