12:221, the choice of a new generation

Jun 03, 2011

Thomas Jefferson once opined that the constitution should be rewritten every two decades, since each generation has “a right to choose for itself the form of government it believes most promotive of its own happiness.” This radical notion was rejected by his contemporaries, of course, and no country on earth has adopted such a policy (at least not intentionally).  But Jefferson was correct that the process of revising a constitution can stir profound changes in society that force outmoded patterns of government to crumble, while new, more vibrant ones take their place.  Nearly two hundred years after Jefferson penned those words, Kenya’s new constitution is showing signs of living up to his greatest hopes, as citizens seize on the document to push for greater participation and accountability.

Somewhat surprisingly, the Kenyan budget process has taken center stage at this phase of tearing down the old and constructing the new.  The new constitution establishes a timetable for the presentation of the executive’s budget proposal by the Ministry of Finance to parliament.  According to that timetable, the proposal should be tabled at least two months before the end of the fiscal year, which in Kenya terminates on June 30.  This would require the proposal to be sent to Parliament no later than the end of April.  Instead, Kenya’s Finance Minister, Uhuru Kenyatta, released the budget estimates only a few days ago (end of May, instead of April).   Furthermore, he is still planning to make the annual budget speech to Parliament on June 8.

If the courts allow him, that is.

Kenyan activist Mr. Ndung’u Wainaina of the International Centre for Policy and Conflict has filed a lawsuit aimed at curbing Mr. Kenyatta’s enthusiasm for upholding the quaint tradition of reading the budget, arguing that he is in violation of the new constitution.  Mr. Kenyatta for his part (see his open letter here) accepts the new law of the land, but claims that it was impossible to adjust the budget schedule in the middle of this transitional year, that he requested a 30-day extension and met it, and that the budget will be delivered on time next year, in full compliance with the constitution. (He accepts, however, that there is no explicit mention of postponing implementation of this part of the constitution in the section on transitional issues, writing in his letter that “there probably should have been.”)

The exciting thing about this controversy is that, regardless of whether Kenyatta’s explanations are reasonable or not, citizens are using the constitution as a point of departure, rather than a port of arrival.  Few Kenyans probably read Chapter 12, Article 221 of the document before they voted for the new legal framework last year.  But they are getting a free education about the document’s contents courtesy of Mr. Wainaina.  He may lose the battle, but he has already won the war: he has used the new constitution to put forward an unassailable argument about the importance of parliamentary and public participation in the budget process.  And the dust this lawsuit kicks up is likely to alert a lot of Kenyans to other developments around the budget, such as the new Public Finance Management Law that the Ministry of Finance has been drafting.

When all the dust settles, the result will be a Treasury that is no longer a juggernaut in budget matters, but must defer to parliament and the public in ways that were inconceivable even a few years ago.  This is the choice of a new generation.  So it is written, so shall it be done.

Note: the budget estimates are still not on the Ministry of Finance website, meaning that even if Parliament has them, the public still does not.  A one-page summary of expenditure is available, as are some highlights.

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