NCCK MEMORANDUM TO THE NATIONAL DIALOGUE COMMITTEE

MEMORANDUM BY THE NATIONAL COUNCIL OF CHURCHES OF KENYA TO THE NATIONAL DIALOGUE COMMITTEE ON ISSUES OF CONCERN TO THE PEOPLE OF KENYA

OCTOBER 3, 2023

Hon Kimani Ichung’wah, MGH, MP

Delegation Leader

HE Dr Stephen Kalonzo Musyoka, EGH, SC

Delegation Leader

National Dialogue Committee

Parliament Buildings

P. O. Box 41842

00100 Nairobi

Preamble

Honorable Chairs,

We are grateful for this opportunity to present this memorandum to this honorable committee. What we will share with you today is a summarized version of the full memorandum we submitted to yourselves via email on September 15, 2023. We will be glad to clarify on any areas you may require further information on as regards our memorandum or the overall state of our nation.

Introduction

The National Council of Churches of Kenya is a family of Christian Churches and Communions established in June 1913. This makes NCCK the oldest and the largest umbrella body for Churches in Kenya, bringing together 32 member Churches and 18 Christian organisations. NCCK has presence in all the 47 counties, bringing together 16 million Christians organsied in over 50,000 congregations.

Structurally, the NCCK has devolved to the grassroots, with governance organs that comprise of Ward Committees, County Coordinating Committees, Regional Committees (a region combines 4 – 6 counties), Executive Committee, and a triennial General Assembly.

The Council endeavours to fulfill the Vision “One Church; United in Faith and Mission witnessing to Jesus Christ and Transforming lives”, being guided by the Mission: “Holistic transformation of lives for a just, resilient and sustainable society”.

The NCCK mantra is for Mwananchi – For the people, which is why we spearheaded community development in the 1960s and 1970s, opposed the mlolongo voting system in the 1980s, lobbied for the repeal of section 2A of the Constitution to re-introduce multiparty democracy in the early 1990s, and clamored for the overhaul of the Constitution through a people driven process. NCCK has indeed been a champion for peace, democracy and justice in Kenya for more than 100 years. It is for these reasons that NCCK is a Nominee for the Nobel Peace Prize 2023.

Centrality of Dialogue

Honorable Chairs,

We commend your committee for the progress you have made in reaching agreement on the agenda for the bi-partisan consultative process that has been bestowed on you, recognizing that the Bible puts great credit on sincere dialogue, as we read in Philippians 2: 4:

Each of you should look not only to your own interests, but also to the interests of others.

Recommendations on the Agenda Items Set Out by the Committee

Having keenly considered the 5 Agenda items outlined in the Notice for Public Participation, we submitted the full memorandum with more details and justifications. Allow us to highlight the following recommendations:

a. Outstanding Constitutional Matters

The Cost of Living and related issues

To address the spiraling cost of living, we strongly recommend that the Finance Act 2023 be reviewed to reduce the tax burden imposed on the people. This will provide incentives to micro and macro investments, which are the core drivers of economic recovery of the nation.

Further to this, we recommend a forensic audit of the national debt to ensure that Kenyans pay back only those debts that were legitimately taken and used for the benefit of the people of Kenya.

Implementation of the two thirds gender rule

Having considered the measures and proposals made for attainment of the two thirds gender rule over the last 13 years, we recommend that the government prepares a comprehensive report detailing the measures taken to comply with the provision in Article 27 (8). The report should show laws, policies and strategies developed and implemented, as well as reporting on actions taken when state bodies, organs and committees have failed to adhere to the rule.

Governance issues, including promoting national unity and inclusivity in public appointments

To promote national unity and inclusivity in public appointments, we recommend that appointing authorities shall ensure the face of Kenya and ethnic balance is respected and seen to be done, Constitutional Commissions be accorded genuine financial and operational freedom, and that their decisions be respected and adhered to. To entrench the rule of law, the Executive and Parliament should stop the blatant disregard and disobedience of Court Orders, and desist from disparaging the Judiciary.

Adequate checks and balances

Recognizably, Honorable Chairs, the future wellbeing of Kenya is predicated on constitutionalism and the rule of law. We strongly recommend that reading of the Constitution of Kenya be included as a unit in the Basic and Tertiary Education curricula.

b. Electoral Justice and Related Matters

Restructuring and reconstitution of the Independent Electoral and Boundaries Commission (IEBC)

Honorable Chairs,

The current state in which Kenya does not have a properly constituted elections management body is risky.. This must be remedied with utmost urgency.

Towards this end, NCCK recommends that agreement be reached soonest for the reconstitution of the IEBC Commissioners selection panel so that the process is completed soonest.

Boundaries Delimitation

As provided for in Article 88 of the Constitution, the boundaries delimitation exercise is limited to:

Review of boundaries of constituencies to balance population quotas, and change of names of constituencies where necessary
Review of boundaries, names and number of wards

Towards this end, NCCK advices that this honorable National Dialogue Committee urgently complete the process of recruitment of IEBC Commissioners so that the process commences without delay. It is now clear that the deadline of March 2024 for delimitation will be violated creating a constitutional crisis. NCCK recommends that an advisory opinion be sought from the Courts with consideration of extending the timelines for delimitation process by 2 years.

Audit of the 2022 presidential election

Honorable Chairs,

Despite the provision of principles of elections and democratic elections in Article 81 of the Constitution, the results of each presidential election since 2007 have been questioned, at times with devastating results. To work towards a longstanding understanding of the shortcomings in the elections and how to enhance their credibility, we recommend the enactment of legislation to establish a Judicial Commission to carry out an audit of the 2022 General Elections to ensure the process promotes peace, stability and national cohesion.

c. Entrenching Funds into the Constitution

Honorable Chairs,

In your communication, reference was made to intention to entrench three funds in the Constitution, these being:

National Government Constituency Development Fund
National Government Affirmative Fund
Senate Oversight Fund

We observe that these funds would be managed by Members of National Assembly, Women Representatives of Counties in the National Assembly, and Senators respectively.

Nonetheless, we do note with emphasis that the Constitution does not allocate any funds management responsibilities to the two houses of Parliament. This would offend and in essence negate the principle of separation of powers.

We therefore recommend that the three funds are not established, and the existing Constituency Development Fund be terminated, as they are in contravention of the Constitution.

d. Establishment and Entrenchment of State Offices

The Office of the Leader of the Official Opposition
The Office of the Prime Cabinet Secretary

Honorable Chairs,

The National Council of Churches of Kenya is on record recommending that measures be taken to provide for a dignified opposition. The proposal for creation of the Office of the Leader of Official Opposition is therefore a step in the right direction.

Quite notably, there was appointed a holder of the office of the Prime Cabinet Secretary, a position that currently does not exist in the Constitution. The proposed establishment of the office is therefore a move to legalize what already exists.

Recognizing that the establishment of the two positions would change the structure of government as outlined in the Constitution, we recommend that a people driven process be created to run in which Kenyans debate about the two proposed positions to determine their scope, mandate and implications.

e. Fidelity to Political Parties / Coalitions and the law on multiparty democracy

Preventing interference with political parties / coalitions

Honorable Chairs,

Article 4 (2) of the Constitution provides that: “The Republic of Kenya shall be a multiparty democratic State founded on the national values and principles of governance referred to in Article 10”.

It is therefore inimical to the Constitution for any person or organ to engage in any actions that would offend the democratic nature of the republic.

We further recognize that the Constitution in Article 38 accords Kenyans the right to hold and change political opinions, and to join or exit political parties at wish. Nonetheless, a person who changes or is deemed changed the party that nominated them for any position, they should lose that position.

To address the concerns that have been raised with regard to interference with opposition political parties by the government, we recommend implementation of the processes and procedures provided for in the constitutions of the political parties as well as the Political Parties Act.

Proposals to Amend the Constitution

Honorable Chairs,

Allows us in closing to specifically recommend against any proposals to amend the Constitution. Instead, we urge you to identify and drive legislative and policy measures to address the issues set out in the agenda. It will not be prudent, at this moment in time, to subject the country to the polarization and politicization of life that accompanies constitutional amendment discourse when there is a potentially divisive boundaries delimitation process coming up in a short while and an economic meltdown.

Conclusion

In conclusion, we in the NCCK commend this National Dialogue Committee for the process you have engaged on. However, the timeframe provided is rather short, which has the risk of forcing the Committee to adopt a political settlement with minimal public participation. NCCK recommends that the Committee engages Kenyans at the County level to ensure no Kenyan is left unheard. We recommend that the term of the Committee be extended for this purpose.

On our part, we remain committed to the betterment of Kenya, and will continue promoting dialogue at all levels so that Kenyans can build a common vision for a just, resilient and sustainable future, being inspired by the scripture in Amos 3: 3

Do two walk together unless they have agreed to do so?

Signed on this 3^rd day of October 2023 at Jumuia Place, Nairobi, on behalf of the Member Churches and Organizations (attached) of the National Council of Churches of Kenya:

Archbishop Timothy Ndambuki

CHAIRMAN

Rev Canon Chris Kinyanjui

GENERAL SECRETARY

NCCK MEMBER CHURCHES