BUILDING BRIDGES INITIATIVE – PROPOSALS TO THE PROBABLE CONSTITUTIONAL AMENDMENT(S) REFERENDUM

Preamble:

Kenyans living outside Kenya also commonly referred to as “The Diaspora” are a key constituency that has proven a key asset to Kenya’s economic growth. Our collective contribution to our national growth can never be overstated. However, there is a major disparity between our economic contribution and the representation of community at the decision table; our situation is the classic “Taxation without Representation” wherein our only value to the Kenyan government is the cash we remit, nothing else. Even with this renewed effort to amend the constitution just shy of ten years of the last change, we in the Diaspora are apprehensive of the any value the any proposed changes will bring because the last changes specifically mandated to benefit the Diaspora were frustrated by the government. We are ver mindful of that, we hope you are as well. This MUST change 

It is more like we as the Diaspora Community are on the menu and not at the decision table despite of the Billions we remit to the country. We are the epitome of a “marginalized community” and if this is truly a “building bridges initiative” then we expect the bridges to be build between the Diaspora community and its governance be a part of the equation as well. Not token mentions but substantial inclusion in not only the process but also governance – this is the 48th County

Equally, we strongly believe that this initiative should have been a people driven initiative and that you should have started with the people themselves, collate their wishes and compile them. Instead the Building Bridges Initiative started at a Boardroom, it is members are appointed by the President Uhuru Kenyatta and the Right Honorable Raila Odinga who have publicly declared the end goal of BBI, and that is to in effect preserve their political and career interests, specifically creating new political positions at the executive and legislative levels to accommodate them. So you can appreciate our skepticism as to whether this is genuinely an initiative for “Wanjiku” or yet another ploy by the political elites to bamboozle the masses to sign off on what the elite want. In this instance, no real effort has been made to reach Kenyans in the Diaspora who are a major constituency and make significant contribution to the country’s economic growth. We feel, just as in the past changes, we in the Diaspora have once again been left out, intentionally marginalized if you will. That MUST change. Notwithstanding, we are submitting the following views in the hope that you will incorporate them in your final report so the public at large to consider.

Diaspora Specific Proposals

Diaspora Voting & Representation We are one of the most if not the most marginalized Kenyan community that there is and this is perhaps one of the most tragic and egregious cases of “historical injustices” committed against a community unnecessarily. It boils down to “taxation without representation”. Even after the constitution specifically mandated that the Diaspora have a voice through the ballot box, and the courts affirmed just as much multiple times, ten years later we are still voiceless and struggling to get our voices heard. Just recently the government, without the requisite law or constitution backing, decreed that ALL Kenyans including the Diaspora MUST register for HUDUMA number as a way to enhance service delivery, the government demanded that we register in a record 45 days using the same company, tools and infrastructure that has been used to register Kenyans to vote and actually conduct elections in the last two election cycles. So understandably you can imagine our struggle to reconcile the distinction between the two, why and how is it that when the government is advancing an agenda favorable to its interests it makes these tools available instantaneously but when it is for the people, the Diaspora in this case, it drags its feet? We do know that the motive behind the HUDUMA number push is to generate tax and add more people to the tax base and most Diaspora will not be opposed to the idea of paying taxes provided we are part of the process and decisions at the table and we get value for what we contribute.

Remove Dual Citizenship Impediments – We have seen instances of needless impediments to Kenyans in the Diaspora unlike in any country on earth. We saw Kenya “deport” a natural born Kenyan who had just run for county governor, Miguna Miguna in one of the most abhorrent and indefensible abuses of authority by the state ever witnessed. As recent as several months ago Parliament refused to confirm Ms. Mwende Mwinzi, President Kenyatta’s nominee for ambassador to South Korea on account of her dual citizenship of both the United   relegates them to second class status by denying them equal access and protection under the law, snatching away their full rights and participation from right under their feet on the flimsy pretexts. If the United States had similar restrictions she wouldn’t be the superpower she is today, she wouldn’t have won WWII. Almost every nation on earth is represented in the US Military by their nationals/citizens who help secure their adopted land, America. During World War II, German scientists immigrated to America and helped build the Atomic Bombs that ultimately ended the war in America’s favor. Most American businesses and successful enterprises were founded and are run by immigrants. My point is that if the world’s superpower would embrace other nationalities to participate in their military, arguably the most secretive and sensitive undertaking of any country, Kenya has no reason to disqualify its own citizens from serving in innocuous positions such as Ambassadors or any other role that benefits the country. It is absurd, just silly. 

Cabinet Level Diaspora Department – It is time that Kenya’s Diaspora had a full-fledged dedicated Ministry to attend to its unique interests and needs. Preferably, this should be run from the Office of the President so restore Diaspora’s confidence in the government as genuinely interested in the welfare of its Diaspora. The current model where a moribund department is embedded in the Ministry of Foreign Affairs with figurehead titles certainly hasn’t worked for us, frankly it is a JOKE, a SHAM.  We remit more than enough in foreign currency to warrant the establishment of a Cabinet Level Diaspora Ministry; the fact of the matter is our remittances surpassed tourism revenues; we do have a full-fledged Ministry of Tourism to handle Tourism and so it would stand to reason that a Ministry of the Diaspora will be in order, it will be self-sustaining from taxes generated by remittances. Diaspora should no longer be treated as foreigners whose interests are handled by the Ministry of Foreign Affairs. The Diaspora Ministry will be charged with administering, among other responsibilities, the “Diaspora Bill of Rights” which include the following:

  1. Diaspora Secretariat – This is absolutely vital and key to the success of any partnership between the Diaspora and Kenya. We would like to use the Diaspora Convention as an opportunity to formally launch the Diaspora Secretariat. Traditionally Kenyans have relied on Embassies and consulates as their only way to get services. More often than not these embassies resources limit them to government to government interaction and services to the Diaspora are ancillary and tenuous to them. The needs of the Diaspora cannot be condensed to a bucket of isues that staffer at the embassy can handle of tackle, ours are unique and expansive and it is foolhardy/unrealistic to expect the Embassies to double as representatives of Kenya to the government they are accredited to and serve Kenyans in host countries. To properly address Kenyans needs, we need an independent Secretariat that liaises with disparate Diaspora Groups and entities to formulate a framework upon which our interaction with the government(s) as the case might be can be channeled. This Secretariat must necessarily be adequately funded to cater operations as part of a budgetary allocation by the government. We pay more than enough in taxes that this should be a very simple and easy fix.
  2. Establishment Diaspora Business Development Framework (ECONOMIC DEVELOPMENT COUNCIL) – The Diaspora is a key economic engine that the country depends in the form of remittances. Even as colossal as these remittances are, running close to KSH 250 Billion Shillings annually, these capital flows are too informal because they are primarily person to person and a small percentage of the remittances, an estimated 20%,  is used for investments while 80% is used for consumerism for food, school fees, weddings, etc. We need to reverse this and have more of this flows invested in income generating and job creating investments. To that end we need a government sponsored formal Economic Development Framework purposely geared toward achieving this goal. A corporate Model of economic development is desperately needed to help move Kenyans capital flows from an informal setting to an orderly and organized format to help grow the economy. A Business Council of Stakeholders should be constituted to handle this from Concept to inception. Other Countries such as Israel, China, India, have developed advanced economic development models where they partner with their Diaspora to stimulate capital flows and investments. Kenya needs to adopt that model to create good paying jobs, grow the economy and end the country’s dependency on China’s debt and other foreign aid. We need the country to create a conducive environment for the Diaspora to do business in Kenya, to remove barriers and replace them with incentives. Let’s create an ECONOMIC DEVELOPMENT COUNCIL of all stakeholders to create the proper framework to realize this goal.
  3. Support of Diaspora Business Enterprises – Kenya is NOTORIOUS for its tax regime that taxes just about everything. The Diaspora hasn’t been spared, Kenyans in the Diaspora contribute a minimum of 50 Billion shillings in direct taxes to the government in the form of VAT (sales taxes), import duty taxes and remittance taxes. We get ABSOLUTELY NOTHING in return. As the “48th” and most affluent County, truly there are ways to ensure that the Diaspora gets value for it is contribution to the country. We don’t need roads, hospitals, schools or any of the typical infrastructure the government spends tax payers money on but in line with the business development idea above, the Kenyan government should be at the forefront of creating incentives to demonstrate in DEED (not just words or mere mentions) that it truly values its Diaspora.
  • Improvement of President Kenyatta’s tariff-free importation of Cars from Left Hand Drive Countries such as the USA. When the President announced the new policy, he intended it to give relief to those of us who want to import vehicles from the US and Canada so we can buy and import directly from third countries without the hustle of taxes and to even the playing field but instead of making it easy, then Treasury Secretary announced counter-measures against the President’s policy that in effect reversed that policy and so we are in limbo and back to square one. This policy should be revised and standardized so ALL Kenyans returning home after an absence of at least let’s say six months or a year have a standard exemption amount of let’s 2,500,000.00 shillings in value exempt from import duty and they pay the difference. In this case if someone imports a 5,000,000.00 shillings vehicle for example, they will only pay taxes on the differential in value, i.e. 2,500,000.00. This will straighten a lot of these issues and in fact generate more taxes to the government.
  • In line with a) above, the government must set a maximum standard fee (not a percentage) that vehicles appraisers can charge and must not be based on the value of the imported vehicle. We have had many cases where the Diaspora is exploited by unscrupulous “Valuers” who charge exorbitant fees on assessed value and wreck in profits from others’ sweat and that’s not fair at all. We are not opposed to folks making money or a living but let them make an honest living and not on the backs of hardworking Diaspora. We would much rather these fees be paid to the government as import duty as opposed to private Valuers. Alternatively and even better, let the valuation be taken over by the government itself.  All import must be based on credible valuation determined at the country of origin and NOT in Kenya. There are widely available tools and sources such as the Kelly Blue Book used widely in the United States to value vehicles. There is no rhyme or reason why Kenya should be valuing vehicle imports at a different value (usually higher) than the declared value where the vehicle is manufactured and imported from, I don’t get it.
  • A Diaspora Welfare Fund for Diaspora who fall on hard times through no fault of their own such as death, arrests and incarcerations, victims of violence (domestic and workplace), Immigration proceedings, etc. Right now there is ZERO policy to assist Kenyans who fall on hard time and we struggle to reconcile why a government that generates so much money from us in taxes doesn’t care or even seem concerned enough to ensure that our welfare is at the very minimum being looked at. This is a low hanging fruit that’s an easy fix.
  •   Speedy Services provision that are brought to the people. In the United States for example, we can hardly access any services whether it is issuance of IDs, Passports or basic services and even when finally do, it is a hassle. The staff is either incompetent or simply act as if we are bothering them – in most cases it feels like we should cater and answer to them instead of the other way round. The cost of chasing after basic government services is an onerous burden on the Diaspora, this needs to change.
  • )     A Diaspora Welfare Fund for Diaspora who fall on hard times through no fault of their own such as death, arrests and incarcerations, victims of violence (domestic and workplace), Immigration proceedings, etc. Right now there is ZERO policy to assist Kenyans who fall on hard time and we struggle to reconcile why a government that generates so much money from us in taxes doesn’t care or even seem concerned enough to ensure that our welfare is at the very minimum being looked at.
  • Speedy Services provision that are brought to the people. In the United States for example, we can hardly access any services whether it is issuance of IDs, Passports or basic services and even when finally do, it is a hassle. The staff is either incompetent or simply act as if we are bothering them – in most cases it feels like we should cater and answer to them instead of the other way round. The cost of chasing after basic government services is an onerous burden on the Diaspora, this needs to change.  
  • End Bureaucratic tape, Remove onerous and unduly burdensome requirements of provision of basic government services – Kenyans in the Diaspora are needlessly subjected to face untold huddles by their government for basic services such as issuance of IDs and passports. It appears that the process and requirements have gotten more burdensome and expensive. It appears as if the government is purposely going out of its way to make life harder for its citizens in the Diaspora instead of easier and that is simply unfortunate. This must be streamlined and not only services brought to the people as opposed to burdening us with onerous costs and demands that serve little to no valid purpose. For illustration purpose, below are some of the ASININE requirements that the government places on passport renewal applicants in the Diaspora. Someone please explain to me what value or purpose the so called “recommender” serve in obtaining a passport? And as if not enough, the recommender better not be a relative and you better have a copy of the recommender’s Kenyan ID! Can you believe such STUPIDITY! For a renewal of a passport??? Shouldn’t an already government issued passport that you are replacing be sufficient to identify who you are as an applicant? What about your birth certificate? Not sufficient?  Never mind that these are actually government issued documents that identify you, the government has no faith in its own documents and so you must to go look for a stranger to vouch for who you are? Who comes up with these stupid ideas in the first place and why is he on the taxpayers’ payroll in the first place?

Requirements for replacement of passport (Current holders of passports being phased out)

  1. A duly filled application form
  2. Copy of Birth Certificate
  3. Copy Certificate of Registration if Kenyan by Registration
  4. Adults 18 years and above – Original Kenyan ID and a copy
  5. 3 (Three) passport size photos
  6. Copy of the recommender’s Kenyan ID
  7. Duly filled Consent form for Minors
  8. Old passport and a copy
  9. 2(two) payment invoices for the prescribed fee
  10.  

**The recommender in Section 7 should be a Kenyan citizen, who personally knows the applicant but not an immediate relative.**

Public Policy in General:

Corruption

End Corruption by Introducing emolument clauses  – There needs to a constitutional safeguard against corruption. The new constitution must contain both domestic and foreign emoluments clauses that simply bars public servants from accepting any emolument for gain or trust while in public service without consent from parliament (“emolument” is defined as an “advantage, profit, or gain received as a result of one’s employment or one’s holding of office.” – Black’s Dictionary). Public servants must be required to declare their wealth immediately upon passage of this amendment and immediately upon hire. The declarations will be in in the custody of a government record custodian and available for public review on demand. These declarations must be updated annually. Any discrepancies between declared wealth and observed wealth held by the public servant directly and indirectly by proxies must be investigated. Corruptly obtained wealth must be recovered and restored back to the public and the responsible party and any accomplices punished appropriately.  The obscene wealth currently amassed by career public servants on the backs of taxpayers must be recovered and perpetrators severely punished.

Governance:

Retain the “Presidential” system in the Executive – Changing the basic structure of government as it currently constituted to accommodate the political elites and oligarchs is a NON-STARTER. Retain the Presidential form of Government. The executive MUST be led by a president elected by the people and must wield power directly commensurate the people as a whole. He or she must be directly answerable to the people and not by proxy as is with parliamentary systems which are fraught with too many risks, fraud and collusion among the few political elites to disadvantage the masses. Additionally, repeal the “running mate” requirement and the attendant security of tenure because it is wrought with abuses and it hamstrings the President’s ability to discipline or even replace his/her deputy in cases of dereliction of duty, insubordination or for cause like we currently see. It effectively created two centers of power. When Hon. Raila Odinga pushed for its inclusion in the current document, he did so in reaction to the Kibaki/Musyoka détente that saw Hon. Kalonzo Musyoka become Kibaki’s vice on heels of a hotly contested election. As we now know, the negative consequences of this ill-informed inclusion have been far and wide ranging on the country. REPEAL this provision. Do not dilute the people’s power as expressed at the ballot box through universal suffrage; we do NOT need multiple centers of power at the Executive and the people’s power should be manifestly reside with the president who is accountable to them.

Winner take all is the hallmark of democracy, we can’t be giving “participation trophies” Rewarding election losers with high level positions in government dilutes democracy, creates conflict and makes a mockery of elections, we cannot have it both ways. If winners recruit opponents into government, it should be discretionary as an accommodation and not mandatory. Election losers should go back to the drawing board. Post-election conflicts are caused by election rigging, so that needs to be addressed. Strengthen the integrity of the vote, count and validate each and every vote as the voter intended it so the public has 100% confidence of the election outcome as announced. No amount of constitutional changes and accommodations will safeguard against public discontent of election malfeasances that trigger violence.

Election Dispute resolution – Presidential election petitions and disputes must be resolved on the basis of law and evidence within a reasonable time. However, placing an arbitrary timeline to resolve presidential election disputes (10 days currently) places undue pressure on the Supreme Court to a rrive at a rushed judgment. Let the evidence guide the court’s opinion and not arbitrary timelines. Similarly, all other election petitions must be guided by evidence so we can avoid the “Martha Karua” situation where election litigants are denied an opportunity to be heard because of arbitrary timelines. Justice and fairness should trump all else.

Cut the Wage bill – Eliminate dishonest wealth transfer – There must be a constitutional threshold of public wage, for both local and national government that must not exceed let’s say 27% of the national budget. Pay increases will be pegged to GDP growth – economy grows 5%, the wages increase correspondingly and if the economy stagnates, no wage increase for government employees. Let’s the current wage model what it is, an unabashed wealth redistribution from the hardworking masses who can least afford it to the very few in society. Let the representatives and civil servants earn an honest living that’s is at par with the people they serve, no public servant should earn more than 5 times the country’s median wage. We recognize it is a significant pay cut for most of these legislators but they are more than welcome to find other more lucrative employment elsewhere, taxpayers shouldn’t be compelled to foot their opulent lifestyles.

Balanced Budget amendment – The Country must live within its means, pure and simple. It is also very possible to do so especially given the fact one third of national budget is swallowed by corruption and wasteful spending. End the confiscatory tax regime that stifles economic growth so we can expand the tax base. Deficits must come to an end and debt brought under control.

Reduce the Size and scope of government – too many commissions & parastatals – we have seen a proliferation of the so called “independent” commissions and parastatals with overlapping roles and functions are just insane. That need to end. The National Transportation Safety Board for example is basically doing policy work rather than focusing on Highway safety in form of road design, policy creation, etc. but instead it is conducting traffic enforcement function which generally is reserved for the police, the National Land Commission is another example of a sham entity that has served to corrupt land ownership and titling, the point is there are severe misalignment and redundancies in these bodies. 

Reign in Local governments (Counties) – These are NOT autonomous units of government notwithstanding their posturing as such. Measures must be put in place that severely curtail Counties discretion in spending, service delivery choices to reign in the wanton waste of resources. The national government must reserve the right to step in when alerted or is aware or has reason to suspect waste and/or plunder of resources by suspending county operations and taking them over until confidence in their operations is restored.

Restore our Defaced Currency, it’s our heritage – The defacing of our currency in the current constitution was a bad idea. The changes were born out of odium of past presidents and it was simply wrong. Can you imagine an American Dollar note without George Washington or Benjamin Franklin faces for example? Of course not, these men were not necessarily the most beloved during their reign and yet they are part and parcel of America’s heritage. Jomo Kenyatta, Daniel Arap Moi, Mwai Kibaki, Uhuru Kenyatta and future Presidents are part of Kenya’s heritage and history. They may not have been the most beloved during their reign but that in no way erases their place in our nation’s history. Our currency is the one place that this national history and heritage is amplified notwithstanding our varied opinions of the people on those faces. The notion that we are substituting our leaders with animals and inanimate objects on our currency is preposterous and MUST be REPEALED.

Tort Reform, Unclog our courts of frivolous suits– Our courts are clogged with endless and frivolous actions filed by people who have no real interest or standing in those actions. Courts have become the theater of the absurd and the blatant abuse of the judicial process is preventing timely disposition of otherwise merited and time sensitive cases. Now is time to streamline the system. Filers of court actions MUST have standing to bring cause of action before the courts unless it can be convincingly be demonstrated that irreparable harm would result if action is not taken on behalf of someone or an entity unable to undertake the action on their own such as disability, incapacity or under limited special circumstances as determined by law.

Penal & Civil Justice Reform; Trial by a jury of peers –  A jury system especially on capital offenses and other serious crimes as well as high value cases, too much power and discretion rests on individual judges. It is the right thing to do whose time has come.

Repeal Special Interest Groups; reduce the size and scope of government – The proliferation of special interests groups for purposes of representation in parliament creates a permanent underclass of people. The so called “marginalized” groups, imagined or real, for purposes of creating special seats in parliament is an untenable and unnecessary expansion of the size and scope of government. The current experiment has clearly demonstrated that such positions add no real incremental value to the groups they purpose to represent and in some cases actually work against the interests of said groups. Many of these needs can be adequately addressed at cabinet level and departmental levels in ministries without

Eliminate “nominated” Reps, MPs, MCAs – The abuses we have witnessed in these “nominated” positions by politicians and political parties at taxpayers’ expense over the years MUST come to an end. They are an undue and onerous burden on the country needlessly and serve no real value in a democracy. They are counterintuitive to democracy especially in a bloated form of government we now have. It is no secret that these positions are tools for party leaders to exert their influence to reward cronies and girlfriends/boyfriends. End this practice, especially at a time we need to cut costs, size and scope of running the government, now is the time. 

Repeal One-third Gender Rule- this includes Women rep positions as well as the one third gender rule for elective office. Justice Njoki Ndung’u, as she later admitted, inserted this clause in the constitution just for giggles and of course everyone in the so called “committee of experts” went along not really vetting or interrogating its implications but as we have seen in the current constitution, this is not only impractical to achieve but also counterintuitive to democracy. Democracy is about choice, not dictated choices but driven by the people themselves where candidates compete for votes, male or female. It is about candidates’ ideas that have nothing to do with gender.  REPEAL.

Repeal Educational/Academic Requirements for elective offices – This elitist provision that that was sneaked into the current constitution is antithesis of democracy. An absolute mockery of what is supposed to give people the freedom to elect leaders of their choice. Leadership is not about academic degrees or diplomas, the world has been transformed by leaders such as Bill Gates, Mark Zuckerberg, etc. who have NO academic degrees or diplomas to speak of and who, by going by this provision, wouldn’t qualify for elective leadership positions in Kenya.  Kenyans themselves should decide who’s qualified to lead them through the ballot box and frankly it is condescending to take away that choice from them by placing an academic caveat or speed bump to their right to choose. Additionally, as we have seen in the current constitutional dispensation, this requirement has led to more instances of fraud wherein leaders have corruptly obtained fake academic credentials for purposes of running for elective offices, the constitution shouldn’t be a conduit of fraud nor a tool for the elite to carve special positions in office, it MUST be for everyone. Simply put, IF YOU CAN VOTE YOU CAN LEAD, simple as that.