Abridged Report of the BBI Steering Committee i Abridged Report of the Steering Committee on the Implementation of the Building Bridges to A United Kenya Taskforce Report

October, 2020 His Excellency the President of the Republic of Kenya and Commander-in-Chief of the Defence Forces, Hon. Uhuru Kenyatta, C.G.H., State House, Nairobi. 16th October, 2020

Your Excellency,

You appointed this Steering Committee by Gazette Notice No. 264, published on 10th January, 2020. It was our privilege, as per the mandate, to conduct validation of the Task force Report on Building Bridges to a United Kenya through consultations with citizens, civil society, the faithbased organizations, cultural leaders, the private sector and experts; and propose administrative, policy, statutory or constitutional changes that are necessary for the implementation of the recommendations contained in the Task force Report, taking into account any relevant contributions made during the validation period.

We conducted comprehensive validation of the Task force Report using the following approaches: Reviewing the contents of the Taskforce Report; holding a total of 93 stakeholder validation meetings at the K.I.C.C., Laico Regency Hotel and at our offices in Nairobi. These meetings were attended by representatives from civil society, faith-based organisations, women’s groups, youth groups, persons with disability (PWD) groups, cultural leaders and government institutions; participated in regional delegates’ meetings where we received written validation submissions from the leaders at the end of each of the meetings; participated in regional public meetings where we received written submissions from Kenyans through their leaders.

Your Excellency, the committee also hosted governors from the Rift Valley region in Nairobi on 20th March, 2020 where they presented memoranda from their counties following postponement of a regional meeting due to the Covid-19 pandemic. The committee also processed a total of 124 hand-delivered memoranda and 223 emailed memoranda, invited external experts and drafters to provide technical information, and also undertook desktop review of relevant documents and international good practices to inform and enrich the report.

The result is the following policy, administrative, statutory and constitutional instruments that addresses the national challenges outlined in the Joint Communiqué of ‘Building Bridges to a New Kenyan Nation.’

We now have the honour to submit our report, and to express our gratitude for the privilege to be of service to the Nation and to express our highest esteem to your Excellency. Senator Mohamed Yusuf Haji (Chairperson & Member)

Acknowledgements

The Steering Committee would like to acknowledge the positive engagement of this consultative process by thousands of Kenyans through memoranda and verbal submissions. Thanks goes to the many experts in Government, academia, civil society and the private sector who lent their knowledge and experience to the task of translating Kenyans wishes for change into practical proposals. Gratitude is expressed by the Steering Committee to the many Governors, Members of Parliament, and Members of County Assemblies who contributed to the process in constructive and positive ways. The leadership of the religious sector and the private sector also deserve recognition for their proactive and forward-looking role in bringing BBI to this stage. Lastly, but certainly not least, the Steering Committee would like to acknowledge, with thanks, the critical role played by the experts attached to it, and the staff who worked daily to allow us to operate effectively.

Abridged Report of the BBI Steering Committee iii iv Abridged Report of the BBI Steering Committee Validation Statement the role could be effectively undertaken by the proportionate to the population. This has led to National Cohesion and Integration Commission. high levels of poverty and the growth of informal This section presents a summary of the validation They said the commission should be mandated to settlements that have been under-served, and outcomes for each of the nine thematic areas. carry out diversity and ethnic audits in the various sometimes marginalised, from service provision institutions within the public sector in Kenya to by the public and private sectors. NATIONAL ETHOS, RESPONSIBILITIES correct regional and ethnic imbalances to meet AND RIGHTS Constitutional requirements. Stakeholders wanted Kenyans living in urban slums and peri-urban serious action to be taken against hate speech, informal settlements told the Steering Committee In the Taskforce Report, Kenyans decried the fact particularly in the context of political campaigns that the definition of marginalised groups should that Kenya lacked a sense of national ethos and is that they identified as the major driver of division. be expanded to include under-served people or increasingly a nation of distinct individuals instead communities living in informal settlements so of an individually distinct nation. And we have Other recommendations on ethnic antagonism they can be given a voice in decision-making to placed too much emphasis on what the nation can include criminalising hate speech and use of improve their wellbeing. They wanted equal service do for each of us – our rights – and given almost no violence especially prior to, during and after provision with other Kenyans, and an equal share attention to what we each must do for our nation: elections. Kenyans further recommended the in national revenues. our responsibilities. implementation of past Commission and Taskforce reports, including the Truth, Justice People Living with Disability (PWDs) Stakeholders proposed that in addition to the and Reconciliation Commission (TJRC) report, recommendations made in the Taskforce Report, People Living with Disability have passionately and the need to address historical injustices and decried the widespread and systemic exclusion the Government should promote Kiswahili, boost land reforms once and for all. the study of local literary works in our educational that they face and made recommendations to address this. They include a review of the Persons institutions, support research in written and oral INCLUSIVITY literature, and increase efforts to rally Kenyans to with Disabilities Act, 2003 to align it with the support local industry by purchasing Kenyan-made Kenyans expressed a keen desire for greater political, increased opportunities and gains for PWDs in the goods. economic and religious inclusivity. They want Constitution, fast-tracking the enactment of the fairer and more equitable planning and sharing of Kenyan Sign Language Bill to ensure that PWDs The proposal to transfer ethics, cohesion and national revenue, and strongly recommended that are able access information and public services, integration mandates to a new Commission was the Commission on Revenue Allocation review the formulation of a Learners with Disabilities Bill, supported by stakeholders. Stakeholders also revenue-sharing formula to come up with a more affirmative action for political inclusion, and agreed to address concerns regarding indiscipline equitable formula. Likewise, they proposed that the strengthening of Commissions and bodies of children, breakdown of marriages and general the objective for the Equalisation Fund be reviewed established by the legislation relating to people erosion of cultural values in today’s society by to take into account minorities and marginalised with disabilities to enforce the law. mainstreaming ethics training and awareness in communities. mentoring and counselling sessions in religious PWD representatives made passionate remarks on activities and through community outreach The Marginalised, the Under-served their desire to directly choose their own elective programmes. They stressed the importance of and the Poor representatives, and that political party electoral integrating ethics and responsibilities as part of The validation process overall revealed that there and nomination mechanisms should take this the school curriculum. is a deep and extensive feeling of being left out by into account. It was submitted that though the millions of Kenyans. There were those who recalled Constitution requires the State to ensure the On responsibilities and rights, submissions revealed the negative impact of past Government policies progressive implementation of the principle that that stakeholders perceived a more significant role on their families and communities. Yet other at least 5% of the members of the public in elective for parents/guardians, teachers, the clergy, media, Kenyans suffered so greatly from extreme poverty and appointive bodies are persons with disabilities, elders and political leaders and the media. that they felt the urgent need for an immediate progress had been very slow. helping hand and employment opportunities to ETHNIC ANTAGONISM AND help them survive. In every single part of Kenya Youth COMPETITION there were people who felt marginalised and under- Young people participating in the validation In the Taskforce Report, it was noted that ethnic served, and who know crippling poverty. All these process wanted employment opportunities for antagonism and competition are a major threat created a feeling of urgency for extensive efforts to them to be vastly increased while still appreciating to Kenya’s success. To strengthen social ties address these profound concerns, mainly among that the enormous number of jobs may not be and promote unity among all the communities, the following distinct categories of Kenyans: immediately available. Most youth and their stakeholders recommended that the Ministry representatives welcomed the BBI Taskforce Report of Education, through the Kenya Institute of Historically Marginalised Communities recommendations related to them, but urged that Curriculum Development, review the curricula The Steering Committee heard about the call they be implemented with greater urgency. to integrate teaching of national unity, character, for inclusion, including delivery of services and and cohesion to learners during their early years. resource allocation by specific communities, mostly Most young people speaking during the validation They also recommended the review of policies in hailing from the ASALs, border communities and period exhibited frustration with the job market. the education sector to promote social integration, informal settlements in towns and cities. Problems They proposed that entry requirements for jobs in especially in regards to admission to schools and highlighted included the need for protection from the public and private sector, at least at the entry institutions of higher learning. aggression by neighbouring communities, redress levels, be made more accessible for those entering for historical injustices, official recognition as the job market for the first time. On teacher recruitment, the Ministry should an ethnic group, improved access to citizenship adopt policy guidelines that discourage local documents, affirmative action in employment and In the interim, youth representatives made proposals recruitment and staffing of teachers, depending greater representation in the form of independent for the full implementation of the Kenya Youth on the circumstances. Stakeholders further said Counties or Constituencies. Development Policy 2019 and the development of that programmes should be put in place for cultural policy, legal and administrative structures to give exchange and integration between different schools. Specific communities from which the Steering young people greater consideration in employment, Committee received such submissions include elective and appointive leadership positions and During validation, Kenyans called for urgent the Ogiek, Ijara, Suba, Ajuran, Turkana and Wajir business opportunities. reform of the electoral system to make the South among others. Executive structure more inclusive and end ethnic Stakeholders spoke of the difficulty in accessing violence caused by the winner-take-all system. The Under-Served and the Poor the 30% public procurement provision, and the existing youth funds and called for the issue The Steering Committee heard that in the decades to be addressed. They also called for a Youth Some stakeholders agreed with the Taskforce since independence, many Kenyans have moved Report that the mandate of cohesion and Commission to be inserted into the Constitution, into urban areas in search of employment even reflecting their conviction that their priorities integration should be undertaken by the proposed while the growth of decent jobs, particularly Ethics and Integrity Commission while others felt needed to be much more seriously engaged with resulting from manufacturing, has declined by the State and national leadership.

Abridged Report of the BBI Steering Committee 1 Women and Girls Government agencies, in consultation with the During validation, stakeholders cited the first-past- The Steering Committee was struck by the Public Service Commission, should develop the-post (FPTP) system as a leading cause of the deep and widespread feeling of exclusion and policies on workplace diversity to attract diverse highly divisive elections, and robust discussions marginalisation among the women of Kenya, communities into the public service. They proposed were held regarding various submissions in who felt that mainstream socio-cultural and that the Ethics and Integrity Commission should favour of a proportional representation system. political arrangements prevent them from fully be mandated to monitor and report to Parliament There were, however, mixed views among experts accessing their rights under the Constitution. A on issues of workplace diversity. responding to the BBI Report and to stakeholder specific concern of stakeholders was the entrenched views, on whether to: political marginalisation and particularly the lack Mental Health a) Sustain the status quo or of implementation of the two-thirds Gender Rule. The BBI Taskforce Report identified mental health b) Adopt a Pure Proportional Representation as a matter of increasing concern to Kenyans and system or To correct this and a wide range of other issues, recommended that a special taskforce should c) Adopt a Mixed-Member Proportional women have made the following proposals: be formed to find solutions on making mental Representation system for election of MPs a) Adoption of a political representation system healthcare accessible, lowering the stigma against in the National Assembly that will also replace to implement the two-thirds Gender Rule in those suffering, and support for home caregivers. the current nominated seats while taking into Parliament; The taskforce was indeed appointed on 11th account the two-thirds Gender Rule and the b) Ensuring the executive structure of the country December 2019 and its work is ongoing. The Constitutional requirement that electoral adheres to the two-thirds Gender Rule; taskforce members appeared before the Steering boundaries should progressively work towards c) Creation of a strict monitoring system in the Committee and recommended fast-tracking ensuring that the number of inhabitants in implementation of the two-thirds Gender the enactment of the Persons with Psychosocial each constituency and ward is, as nearly as Rule and execution of sanctions for non- Disabilities Bill, development of legislation on possible, equal to the population quota. compliance; mental health, and development of a National d) Adopt a multi-member constituency model, d) Implementation of section 2 (b) of the Happiness Index. or adopt this model in the alternate systems, Basic Education (Amendment) Act, 2017 to equalise the representation of high on the provision of free, sufficient and high- DIVISIVE ELECTIONS population constituencies. quality sanitary towels to girls in public basic In the Taskforce Report, it was noted that we have Implementing multi-member constituencies allows education schools; forged a politics that is a contest of “us versus them”. e) Fast-tracking the enactment of the Menstrual Kenya to retain constituencies which they are And we have chosen our “us” and “them” attached to, and a direct link to their representatives. Health Management Bill and up-scaling of on an ethnic basis, especially in competing for funding for social protection to protect It is noteworthy that elected officials with a the Presidency. Lack of inclusivity is the leading geographic base retain greater influence than their children from teenage pregnancies, early contributor to divisive and conflict-causing elections. marriages and Sexual Gender-Based Violence. nominated counterparts. For the sake of equality Kenyans associate the winner-take-all system with of representation, it may be best that every elected divisive elections and want an end to it. A majority The Elderly official be attached to a specific area, thus the appeal of Kenyans supported the adoption of a hybrid of the multi-member constituencies. During the validation process, the Steering between the Presidential and Parliamentary systems. Committee heard about the urgent need to address They supported the BBI Report’s recommendation On recruitment of IEBC commissioners, some the needs of elderly Kenyans, who feel forgotten for an inclusive national Executive comprising a Kenyans said the Constitution and IEBC Act in their time of need despite their contribution to President, Deputy President, Prime Minister and should be amended to allow Parliamentary political national development during their active days. To two Deputy Prime Ministers. parties and coalitions to nominate commissioners, help them cope with the grinding poverty some while others said the current expert panel model of them currently face, they recommended the Stakeholders agreed with the BBI Report’s should be expanded to include either Members of following measures to be undertaken: recommendation that the President appoint an MP Parliament representing Parliamentary political a) Development of a suitable retirement benefits from the largest party or coalition in the National parties and coalitions or the Political Parties Liaison scheme in both private and public sectors; Assembly to be Prime Minister. They also wanted Committee. b) Finalising the implementation of the Pensions the roles and functions of the Prime Minister to be Management Information System (PMIS) clearly defined so as not to create two conflicting Stakeholders demanded that the Commission of the Pensions Department to reduce the centres of power similar to the power-sharing should review its systems to ensure, among backlog of pensions and other benefits claim model of the 2008 Coalition Government. Apart other things, transparency in hiring; timely and cases; from creation of the Prime Minister post, Kenyans transparent procurement of election materials; and c) Enhancing the capacity of the NHIF to roll supported the establishment of the office of Leader the security and integrity of electoral management out free and comprehensive medical cover for of the Opposition with a Shadow Cabinet. systems (Kenya Integrated Elections Management people over 65 years of age across the country; System, KIEMS). d) Establishing a social security fund where the With regard to representation, the Taskforce noted aged receive a monthly stipend; and that whatever form that reforms take, they should Stakeholders urged IEBC to ensure strict e) Development of policies and legislation by be in line with the following principles: enforcement of the code of conduct for candidates County Governments to provide for the • That the people’s choice, including in Party and parties contesting the elections. According to establishment of County recreation and social primaries and nominations, shall be upheld some sections of Kenyans, IEBC should lower centres to support older persons. through fair, free and transparent elections. nomination fees which limit the effective and • Ensure each Kenyan vote has the same status meaningful participation of marginalised. Public Participation and power, as envisaged in the Constitution. Many Kenyans emphasised the fact that the essence • Parties should be compelled through to meet Stakeholders also emphasised that the Office of of public participation is not only to involve the the Gender Rule and other Constitutional the Registrar of Political Parties has a key role to public in policymaking but to also provide a measures of inclusion through their party lists. play in promoting political participation of women platform for policymakers and implementers to be • Party lists for Members of County Assemblies and other special interest groups by enforcing accountable to the public. Public participation fails shall follow the same principles and processes compliance with the Political Parties Act. Other key to achieve this goal where the public has no access of public participation, elections and vetting recommendations include the need for the review to relevant information at the appropriate time. as the National Assembly. of campaign financing laws to regulate the amount • The existing constituencies will be saved, and sources of funds to be used during elections and Employment in the Public Service including the protected seats, because they introduce recall clauses to instill party discipline. have become key for representation of sparsely Kenyans who gave their views on this matter populated areas. SHARED PROSPERITY feel that employment in the public service is not • The nomination lists through parties should be inclusive. Different sections including young completed in a transparent process governed The Taskforce Report noted that the single most people, women, those living with disability by the political parties, overseen by the important matter facing Kenyans when it comes to and marginalised communities feel that they Registrar of Political Parties and the IEBC. shared prosperity is generating sufficient jobs and are excluded. Stakeholders recommended that employment, particularly for the youth. During the

2 Abridged Report of the BBI Steering Committee validation, Kenyans indicated that much needed to a) Implementation of previous reports by g) Regulatory oversight of escrow and nominee be done to grow sectors of the economy that would taskforces and land-related commissions, accounts held or managed by professionals lead to high employment, such as manufacturing including the Ndung’u Land Commission on behalf of their clients. industries, and to open up our borders for import and the TJRC. h) Full implementation of the Bribery Act in and export. b) Expeditious formulation of a policy addition to adoption of measures to prevent framework under Article 159 of the 2010 and curb corruption in the private sector. Stakeholders called for a long-term economic Constitution, to expeditiously resolve i) Accountability mechanisms to be put in place development plan in which industrialisation is land disputes and encourage communities to monitor, on a regular basis, those given the aggressively and consistently encouraged and to resolve land disputes through methods duty and privilege of accounting for public promoted. They also advocated increased social such as Alternative Dispute Resolution resources. protection for those who may be left behind or are mechanisms and Traditional Justice Systems. j) Laws that compel the disclosure of the vulnerable as private enterprise grows. c) Security and robust protection of land rights beneficial owners of corporate entities including issuance of title documents. where such entities are under investigation Stakeholders welcomed the BBI Taskforce’s d) Allocating leases in settlement schemes to for corruption and other crimes. proposal to build the economy from the create an enabling environment for ease of grassroots and undertake development activities access to land for agricultural production by DEVOLUTION in every County at the Ward level. young people, women and PWDs. Devolution is one of the key discussion points from e) Reversion of ownership of land to the the 2010 Constitution. However, concerns were During validation, Kenyans called for a tax policy community upon expiry of leasehold raised that various obstacles hinder devolution, that looks at taxation as an incentive to production ownership by non-citizens. like wastage of resources and theft; divergent and consumption rather than the disincentive it is f) Registration of communal land under the views on the revenue allocation formula; spending presently. They concurred with the following BBI community’s name. that has failed to trickle down to the grassroots; Taskforce recommendations: g) Reviewing taxation on land to ensure that poor planning; misdirected priorities; inadequate a) broadening the tax base; poor Kenyans are not paying tax on their capacity to implement budgets; and ineffective b) directing tax revenues towards development small portions of land, oversight mechanisms. outcomes that benefit taxpayers; h) Restrictions on the smallest allowable land c) simplifying taxation and avoiding over- demarcation size. Other views were that devolution has led to taxation; i) Serious punitive action to be taken against marginalisation in Counties where some groups d) reducing the number of permits; public officials who have been involved in find themselves discriminated by the majority. e) eliminating double taxation and regulation the processing of fraudulent title documents Kenyans therefore proposed the following specific at the national and County levels; j) Establishment of a Commission/Taskforce interventions: f) developing a policy that attracts and on Historical Land Injustices and Contested a) The increased allocation of funds to the augments remittances from Kenyan diaspora; Communal Land Claims. County Governments. g) proper and coordinated land use planning k) Amendment of the law to empower the b) Periodic costing of national and County throughout the country Ministry of Lands to revoke fraudulently functions, by the Commission on Revenue and unlawfully obtained title documents. Allocation, National Treasury and Controller Stakeholders also pushed for an economy with the of the Budget. means to enable the country to be able to offer Regarding the environment, Kenyans supported c) Complete transfer of functions from the the kind of social and economic protections and the restoration, protection and expansion of National Government to Counties including support referred to in Article 43 of the Constitution. forests in the country. Some proposed that the restructuring or winding up of parastatals that forest and environment function be devolved still carry out County Government functions. They also commented on the right to education and local customary structures given a hand in d) Initiate reforms to ensure that Counties for all Kenyans and specifically among the its management. become centres of growth and economic marginalised communities in ASALs, to which development. Include Governors as part of end they recommended that the National Council In addition, communities living on either side of the security structure within the Counties. of Nomadic Education in Kenya (NACONEK) rivers, lakes, etc. have called for the formulation e) On healthcare, it was generally agreed that be given body corporate status with autonomous of polices that ensure sustainable exploitation, there was a need to restructure NHIF and funding from the Ministry of Education to utilisation, management and conservation of the initiate reforms to improve service delivery spearhead the implementation of school meals environment and natural resources. They also in the Counties, curb unrest in the sector and nutrition, low-cost boarding schools, sanitary proposed the establishment of a comprehensive and enhance professionalism. There were towels for girls, adult and continuing education, policy on mitigating the effects of climate change. divergent views, with one group pushing ICT for education in remote learning and strongly for a Health Service Commission, Alternative Provision of Basic Education (APBET). CORRUPTION while others were strongly for a regulatory, The public recognised corruption as the principal statutory body to regulate and oversee the Stakeholders submitted that more effort was threat to the existence and wellbeing of Kenya. The employment and deployment of specialised needed for the promotion and implementation overwhelming perception was that the vice, like an medical staff who are in short supply. In of Technical Vocational Education Training advanced cancer, has undermined public trust in addition, there was support for the rolling (TVET) and Science, Technology, Engineering our institutions and shattered the hopes, dreams out of universal healthcare and upgrading of and Mathematics (STEM) education among young and aspirations of entire generations of Kenyans. referral services and emergency response and people. In addition, they emphasised the need to paramedic services. formulate a policy framework for harnessing, Consequently, Kenyans passionately recommended promoting and marketing the creative potential several measures to tackle graft cartels, including: SAFETY AND SECURITY of young people in sports, music, dance, arts, ICT a) Speedy prosecution and conclusion of cases The general view was that members of the public and other creative industries generally. involving corruption and criminal wastage are grappling with a range of issues, among them of public resources. natural hazards and disasters, food insecurity and Kenyans called for specific legislative measures to b) Stiffer sentences and punitive fines for all drought, land fraud and forceful dispossession, properly regulate betting and loan apps. Many took found culpable of corruption. resource-oriented conflicts occasioned by boundary the view that private betting should be outlawed and c) Protection of whistleblowers. conflicts and competition for water and pasture, replaced with a Government-run national lottery d) Aggressive recovery of stolen public resources. violent crimes, unsolved murders, terrorism, cyber- that uses betting proceeds to uplift the youth. e) Restricting Public Officers from conducting crimes, runaway theft and the proliferation of sub- any business with the Government. standard goods. As regards security and certainty of land rights, f) Digitisation of all Government services, the Committee received numerous complaints which will not only help curb corruption Kenyans proposed a number of solutions, regarding fraudulent land dealings all over the but also bridge the gap in accessibility of including: country. Kenyans, particularly those in areas with services to historically marginalised and a) Modernisation of police systems. long-standing land problems, called for: sparsely populated Counties.

Abridged Report of the BBI Steering Committee 3 b) Improved work environment for disciplined Stakeholders who appeared before the Steering Chapter Two of the Constitution on formative forces. As a matter of priority, put in place Committee called for the establishment of a single aspects of the Republic to address regional accessible and well-resourced mental health unit handling all roads in Kenya. Citizens also called integration, cohesion, shared prosperity and the and wellness counselling and treatment for for redefinition of the roles of bodies involved in the centrality of the economy. The proposed changes police officers. management of public finance as they believe this will enhance the harnessing of regional trade c) Redistribution of policing, investigation and will lead to fair and timely distribution of funds. and investment, and improve people-to-people prosecution resources to address the delay in There were calls for empowering the Commission links to increase our prosperity, opportunities for delivering justice to the poor. on Revenue Allocation (CRA) to manage IFMIS investment and enhance our security. d) Strengthening of County and community between the two levels of Governments, Judiciary, participation, such as the nyumba kumi Parliament and Independent Commissions and Chapter Three on Citizenship to strengthen the initiative, in security issues. Offices. national ethos by outlining the responsibilities e) Citizens also advocated for review of a of citizens. The amendment is informed by the number of national sectoral strategies that Commissioners understanding that the current Constitution has target resource-oriented and boundary Through their submissions, Kenyans expressed rightly imposed various socio-economic duties on conflicts, rapid response mechanisms to concerns over the growing public wage bill. the state but does not envision any responsibilities address disasters and hazards, counter- They called for mechanisms to reduce wage bills on the part of the citizen. terrorism, border security, sexual and gender- specifically with regard to commissions. Some based violence, alternative dispute resolution sections were of the view that the Constitution Chapter Four on the Bill of Rights to provide and food safety and security. should limit the membership of commissions and a constitutional underpinning for the privacy that commissions whose membership is not set in of citizens’ personal data as an emerging area in Other views were that the roles played by the the Constitution be limited to a maximum of five human rights owing to significant technological correctional services and the Kenya Coast Guard members. developments in this area. Service be recognised in the Constitution and that the National Government Co-ordination Act be Consolidating administrative tribunals Chapter Six on Leadership and Integrity reviewed to empower the Office of the Chief to to intensify the fight against corruption by oversee public safety and security at the grassroots. Kenyans were generally of the view that there is strengthening the relevant institutions. This a need to bring all tribunals under one unified includes providing a mechanism for more COMMISSIONS AND CROSS-CUTTING structure. Others were of the view that a tribunal expeditious conduct of investigations, prosecution should be established to handle all health matters and Kenyans submitted their views on areas that either and trial of corruption-related matters. that chairpersons of tribunals possess qualifications cut across the nine thematic areas in the Joint equivalent to those of a High Court judge. Communiqué or act as their enablers. These areas Chapter Seven on Representation of the People to resolve issues of divisive elections arising from include the special status of Nairobi; the status of Judiciary the Senate and National Assembly; strengthening electoral processes. The proposed amendments investigative arms; the rationalisation of public Kenyans emphasized the need to protect the seek to: entities’ mandates; consolidating administrative independence of the Judiciary while holding it i. Enhance the transparency and fairness of tribunals; the Judiciary; and remuneration. accountable to the people of Kenya, which will build representation in the electoral system. the people’s confidence in the system and enable it to ii. Reform the management structure of the Nairobi effectively carry out its functions. They agreed with Independent Elections and Boundaries the BBI Report’s proposal to create the position of Commission (IEBC). The majority of the stakeholders recognised that a Judiciary Ombudsman and specialised courts to iii. Promote electoral competition based on though Nairobi is the capital city and a major address the increasing volume of cases and special ideas, values and our shared humanity rather diplomatic hub, including being a global United crimes, such as corruption and terrorism. They also than the common-enemy identity politics Nations headquarters, its management had been agreed with the proposal to expand the mandate of that have defined our electoral cycles to date. neglected and hence should be accorded special the Judicial Service Commission to discipline judges. iv. Promote gender equity in governance by status and its growth and development must be actualising the Constitutional provision of given due attention. Remuneration the two-thirds Gender Rule on elective and appointive office. Parliament Overall, Kenyans yearn for fairness and equality. They told the Steering Committee that remuneration v. Implement the provisions of Articles 81(d) Stakeholders were largely content with the should be based on the services offered, regardless and 89(7) (b) of the Constitution, which representation that Kenyans enjoy by having the of the status of the Government office. To this mandate that the electoral system is to two houses of Parliament. To this end, they said the end, they asked for harmonisation of salaries in the comply with the universal principles of fair Senate and National Assembly should be retained. three arms of Government, state corporations and representation, equality of the vote, and However, they asked for clarity on roles of the two commissions. the requirement that the IEBC, in setting houses with regards to bills and resource allocation. constituency and ward boundaries, should The general overview of the current functions of progressively work towards ensuring that the the two houses is as follows: Proposed Changes number of inhabitants in each constituency and ward is, as nearly as possible, equal to Strengthening Government’s investigative arm The Steering Committee has undertaken the the population quota. Concerned about the high level of corruption daunting task of listening to a multiplicity of and crime in general, stakeholders called for the voices responding to the BBI Taskforce Report. Chapter Eight on the Legislature to undertake strengthening of law enforcement and investigative As per its mandate, the Steering Committee has the following: Remodel the Parliamentary system agencies, including the Office of the Director of made recommendations on the implementation of by bringing the Government back into the House, Public Prosecution and the Directorate of Criminal the Report, which are structured in the following including the Prime Minister, Deputy Prime Investigations (DCI). thematic areas: Constitutional, Legislative, Policy Ministers, Cabinet Ministers, the Attorney- and Administrative. General and the Leader of the Official Opposition, Rationalisation of Government-Owned Entities being the person who was the runner-up in the (GOEs) The following is a brief overview of the proposed Presidential election. changes in regard to constitutional and legislative On 23rd July, 2013 H.E. the President appointed reforms: As a result, the membership of the Senate will a Taskforce on Parastatal Reforms charged be increased to ninety-four, with each County with reviewing and recommending policies on 1. Proposed Constitutional Reforms being represented by two members, one man, one management and governance of State Corporations. woman. This is aimed at ensuring gender parity The taskforce recommended, among other things, Following the analysis of the views presented in representation and also ensure compliance to the rationalisation and consolidation of some and thereafter validated by Kenyans, the Steering the two-thirds Gender Rule. There will be no State corporations to ensure they address national Committee proposes to amend: nominated members in the Senate. development priorities, including Vision 2030.

4 Abridged Report of the BBI Steering Committee The proposed changes further seek to scrap the iii. Carry out rigorous audits that inquire into until such time that the loanees start position of County Women’s Representative in value for money and ensure that sound earning an income. the National Assembly. The National Assembly principles of public finance management will have three hundred and sixty members. Out apply to every arm of Government and every 2. The Prompt Payment Bill, 2020 of this, 290 will represent existing constituencies public institution. The proposed Bill provides a legal framework (while there was an option to eliminate some of iv. Facilitate, promote and enable ethical for the prompt payment of invoices for goods them that do not meet the population threshold, conduct and responsibility in public resource and services procured by public entities and care was taken to retain them so that no region management. mechanisms for settling disputes over invoices. loses), while 70 extra members will cater for This will address the issue of delayed payments the populous constituencies in a multi-member Chapter Sixteen on General Provisions to and ensure open government contracting processes. constituency model. define new terms introduced by other proposed amendments. 3. The Micro and Small Enterprises Chapter Nine on the Executive by expanding the (Amendment) Bill, 2020 National Executive to promote greater inclusivity, Third Schedule on National Oaths and The Bill seeks to amend the Micro and Small and mitigate the drawbacks of the winner-take-all Affirmations to make provision for the oaths to be Enterprises Act, 2012 to give youth-owned electoral formula. This recommendation proposes administered in respect of state officers for whom enterprises a seven-year tax break, and to establish the introduction of the office of the Prime Minister such requirements had been omitted. business incubation centres across the country and two Deputy Prime Ministers. It also provides for the purposes of providing business advisory that Cabinet Ministers may be appointed from 2. Legislative Proposals services, which includes access to capital and among members of the National Assembly. The BBI Taskforce Report made several Government contracts. Further, the Authority will The Committee makes this recommendation recommendations that require legislative register and certify enterprises owned by young cognizant of the provisions of Article 77(1) of the interventions. The Steering Committee has people, women and people with disabilities. Constitution of Kenya, which bars state officers considered the input obtained during the validation from receiving emoluments for more than one role. process and has drafted relevant amendment bills. 4. The County Wards Development Fund Bill, 2020 Chapter Ten on the Judiciary to enhance judicial Below is an overview of the bills. The objective of the proposed Bill is to provide a accountability to the people of Kenya. This means legal framework for the operationalisation of the that while the independence of the Judiciary 1. The Public Finance Laws (Amendment) Bill, Ward Development Fund that is intended to must be protected as a fundamental principle, 2020 be introduced through an amendment to the the Judiciary should equally be accountable in a The Public Finance Laws (Amendment) Bill, 2020 Constitution. clear manner to the sovereign will of the people of seeks to make amendments to various finance- Kenya. It is, therefore, proposed to introduce the related laws, such as: 5. The Health (Amendment) Bill, 2020 independent office of the Judiciary Ombudsman, a. The Public Finance Management Act, The Bill seeks to amend the Health Act to establish who shall sit on the Judicial Service Commission. 2012 (No. 18 of 2012) the Health Services Commission. The commission The Bill seeks to amend the Act to provide shall make recommendations to the National Chapter Eleven on the Devolved Government for offences relating to the handling of Government on national policies for management by making the following changes: public monies by Public Officers or of healthcare workers; monitor implementation i. Creating a County Ward Development Fund Accounting Officers, and liability arising of national policies for management of healthcare to be governed by statute. This is meant to out of loss of public funds. workers by county governments and recommend spur development at the ward level. appropriate action; and set and regularly review b. The Public Procurement and Asset ii. Increasing the resources to the Counties norms and standards on health matters. Disposal Act, 2015 (No. 33 of 2015) from the current 15% to at least 35% of the last audited accounts and ensuring that The Bill seeks to amend the Act to 6. The Election Laws (Amendment) Bill, 2020 the focus is on service delivery in the settled obligate Accounting Officers to ensure The Bill seeks to amend various election-related and serviced areas, including for people living that procurement of goods, works laws, to deliver an electoral system that is near the furthest boundaries of each County. and services is done transparently and transparent, accountable and democratic and The increment is aimed at strengthening with strict adherence to the approved promotes the will of the people. The Bill contains devolution. procurement plans and that money is amendments to the following statutes: iii. Embedding the monitoring, implementation available for payment of goods or services 1. The Elections Act, 2011 (No. 24 of and impact assessment of Article 43 rights being procured. 2011) in the President’s State of the Nation address c. The Public Audit Act, 2015 (No. 34 of 2. The Political Parties Act, 2011 (No. 11 and in the budgeting process. This will 2015) of 2011) guarantee Kenyans’ access to economic and The Bill seeks to amend the Public Audit 3. The Independent Electoral and social rights anchored in the Constitution. Act, 2015 to empower the office of the Boundaries Commission, 2011 (No. iv. Ensuring greater inclusivity, fairness, equity Auditor General to recruit its own staff. 9 of 2011) and accountability in the distribution of d. The Controller of Budget Act, 2016 4. The Election Campaign Financing Act, resources. (No. 26 of 2016) 2013 (No. 42 of 2013) The Bill seeks to amend the Act to require 5. The Election Offences Act, 2016 (No. Chapter Twelve on Public Finance to streamline the Controller of Budget to carry out 37 of 2016) public finance principles and processes to due diligence on all ongoing projects, promote efficiency and ensure expenditures are to ascertain whether money previously 7. The Anti-Corruption and Economic Crimes directed to maximising utility. The proposals approved for the project has been (Amendment) Bill, 2020 give special attention to the actualisation of the utilised prudently, before the Controller The Bill seeks to amend the Anti-Corruption and rights guaranteed under Article 43 as well as authorises release of more funds for the Economic Crimes Act, No. 3 of 2003 and touches strengthening devolution. projects. on matters such as: enhanced penalty for economic crimes and corruption offences; the procedure for e. The Higher Education Loans Board Act, Chapters Thirteen, Fourteen and Fifteen to hearings and sentencing on economic crimes and 1995 (No. 33 of 1995) ensure that the Public Service, National Security corruption matters; and an offence of concealment The Bill seeks to amend the Act to give agencies and Commissions and Independent of corruption. The bill also seeks to ensure effective loanees a grace period of four years from Offices are not only strengthened but also: and expeditious investigation and prosecution of the date of completion of their studies i. Are accountable to the people of Kenya. corruption cases. before they can commence repayment of ii. Have internal accountability systems that loans advanced to them. The proposed clearly and transparently separate the power It provides for the duty to report any knowledge amendments further exempt loanees of appointment and promotion from that of or suspicion of instances or acts of corruption or without a source of income from paying interdiction and censure. economic crimes. interest on the loans advanced to them

Abridged Report of the BBI Steering Committee 5 8. The Ethics and Integrity Laws (Amendment) 13. The Persons with Disabilities Act, No. 14 3. Policy Reforms Bill, 2020 of 2003 Following receipt of submissions, the Steering The Ethics and Integrity Amendment Bill, 2020 The Persons with Disabilities Act, No. 14 of 2003 Committee on the Implementation of the Building seeks to make amendments to various statutes was enacted pursuant to the recommendations Bridges to a United Kenya Taskforce and the team relating to ethics and integrity. The Bill contains of a Task Force appointed by the Office of the of experts evaluated proposals from the various proposed amendments to the following statutes: Attorney General. Since enactment in 2003, a state and non-state stakeholders. An appraisal 1. The Leadership and Integrity Act (No. 19 number of amendments have been made to the of existing policies as outlined by Government of 2012) Act and some 32 additional proposed amendments Ministries, Departments and Agencies was also The Bill proposes to amend the put forward, to reflect the rights declared under conducted to identify challenges, areas that require Leadership and Integrity Act to: (i) Article 54 of the Constitution of Kenya, 2010, but new interventions and gaps that need enriching. provide a detailed framework for dealing not enacted. Among the key proposed amendments This process informed the development of several with public funds and personal wealth which have been subjected to public participation guidelines which are expected to outlive successive and making financial declarations pursuant to Article 118 of the Constitution of administrations and shape policymaking in the by state officers. (ii) prohibit state Kenya, 2010 as read together with standing order long term. officers and Public Officers themselves 140 (5) of the Standing Orders of the Senate is or through proxies from engaging the Persons with Disabilities (Amendment) Bill, 4. Administrative Reforms in business with a public entity or 2019, Kenya Gazette Supplement No. 5 (Senate Bills No. 1), Senate Bills, 2019 (6th February, The Steering Committee devised administrative engaging in public collection of funds. implementation measures that include actions 2019). On 14th August, 2018, the Cabinet passed Resolution No. 3 approving a Cabinet Paper on establishing and/or revamping systems and 2. The Public Officer Ethics Act (No. 4 of structures in the Public Service. Others are 2003) the Persons with Disabilities’ Bill, 2018. The committee recommends that the said bill be tabled designed to enhance citizen education and The Bill proposes to amend the Act to in Parliament for debate and enactment without inculcate a culture of responsibilities at individual bar Public Officers from participating further delay. and leadership level; and to strengthen our familial, in public collections and streamline the cultural and education systems. filing of wealth declarations by Public 14. The Statute Law (Miscellaneous Officers. Amendments) Bill, 2020 Having listened to broad categories of Kenyans The Bill contains minor amendment proposals during the validation exercise and expert 9. The Contribution to Charity Bill, 2020 relating to the following statutes: consultations, the Steering Committee was The Bill seeks to repeal the Public Collections a. The Interpretation and General particularly struck by the sense of frustration Act, Chapter 106, with the principal objective Provisions Act (Cap. 2) among Kenyans due to non-responsive public of providing a modern framework for regulating The Bill proposes to amend the systems and structures: a situation which in public collections or harambees and providing a Interpretation and General Provisions turn created a worrying deficit of public trust in clear demarcation between public collection for Act (Cap. 2) to harmonise the government. For this reason, considerable focus charitable purposes and public collection for definition of ‘Cabinet Minister’ was put on transforming systems and structures private benefit. with the proposed Constitutional within our governance set-up and making them Amendment amongst others. compliant with a ‘people-first’ approach in public 10. The Devolution Laws (Amendment) Bill, governance. 2020 b. The National Intelligence Service Act, The principal goal of this Bill is to amend No. 28 of 2012 the County Governments Act, 2012 and the The Bill proposes to amend the Act Conclusion Intergovernmental Relations Act, 2012, to align to expand the definition of the words various provisions of the Act with multiple court ‘vettable position’ to ensure the The BBI process offers Kenya a chance to enact decisions on matters relating to devolution and to Service vets all applicants to public ambitious reforms that will allow us to safely incorporate lessons learnt in the implementation offices. navigate our way to a more stable, fair and inclusive of the Acts. Further, the Bill amends the County c. The Mutual Legal Assistance Act, No. Kenya. Kenyans understand this opportunity and Governments Act to include a provision requiring 36 of 2011 are looking into how they can take advantage County Governors to designate to their Deputy The Bill proposes to amend the Mutual of this opportunity to reform the way they are Governors County Executive Committee Legal Assistance Act, 2011 in section governed. portfolios. 2 to harmonise the list of mainstream competent authorities with the The consultation period, both by the initial 11. The Public Participation Bill, 2020 provisions of section 7(2) of the Act. Taskforce and the Steering Committee that has The Bill seeks to provide an effective public d. The Commission on Administrative compiled this report, was extensive. This is the first participation framework both at the National and Justice, No. 23 of 2011 national consultation of its kind since the founding County Government levels. The Bill seeks to amend the Act to of Kenya to consult Kenyans from every region and provide that after having concluded an county. The Taskforce and the Steering Committee 12. The National Economic and Social Council investigation or inquiry and found a toured all the 47 counties to hear or validate views. Bill, 2020 Public Officer guilty of gross violation This Bill provides a comprehensive legal framework of the Constitution or the law, the The Steering Committee humbly submits this on how the identification of Kenya’s socio- Commission shall be able to recommend report, as per its mandate, to the Government in economic development priorities will be done that such an officer is unfit to hold order that the Kenyan people can see reflected back and provides for a body that shall be in charge of public office. at them their stories, desires and frustrations turned general coordination of national planning. into instruments of change.

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