BBI Court Of Appeal Ruling, A Win Or A Loss For The People Of Kenya?

The President of the Republic of Kenya, H.E. Uhuru Kenyatta, and the opposition leader Rt. Hon. Raila Odinga met for the first time on 18th March 2018 since the disputed presidential election that was held in 2017. In a bid to bury the political hatchet and cool the political temperatures in Kenya, the President and opposition leader shook hands on the steps of the president’s office, Harambee House,  in what has now been termed as ``the Handshake”.

In order to achieve their end goal of promoting national unity, the two formed The Building Bridges Initiative, also set up to provide a framework for achieving positive outcomes for youth and families served in residential and community programs. The initiative included a sequence of 78 proposed amendments to Kenya's Constitution. 

Since its independence in 1963, the constitutional amendment has been a key issue. The country’s 1963 independence constitution supported a parliamentary system of multi-partyism. In 2005, a constitutional referendum prevailed over the constitution proposed and reinforced by the government.

The independence constitution was replaced in 1969 with a new text that firmly established amendments already made to the system of government that the independence constitution had thoughtfully looked at. The changes included: changing the structure of the state from a federal, or Majimbo system, to a unitary system; creating a unicameral instead of bicameral legislature; changing from a parliamentary to a semi-presidential system with a powerful presidency; and reducing the protections of the bill of rights. The demand for a more democratic constitution increased with time calling for a comprehensive review of the 1969 Constitution. 

Following the post-election violence, a body of arbitrators, guided by Kofi Annan, the then Secretary General of the United Nations proposed a new constitutional review proceeding, after which a harmonised draft constitution was proposed and written in 2009.

The Parliamentary Select Committee revised the draft and the Committee of Experts published a Proposed Constitution on 23 February 2010 that was presented to Parliament for final amendments. After failing to incorporate over 150 amendments to the proposed constitution, parliament unanimously approved the proposed constitution on 1 April 2010. The proposed constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010.

In August 2010, a 67% margin in a national referendum ratified the draft constitution text, and October 2010 saw the parliament establish the Constitutional Implementation Oversight Committee, commissioned to guide the whole implementation and reform process, and hence the Constitution of Kenya, 2010. 

The Building Bridges initiative sought to introduce 74 amendments into Kenya's Constitution through a method known as the “popular initiative”. Some of the amendments include; expand the executive and legislative branches, adding the post of prime minister, adding two deputies, adding official leader of the opposition, reverting to selecting cabinet ministers from among the elected Members of Parliament, creating at least 70 new constituencies; and adding an affirmative action clause that would create the possibility of up to 300 unelected new members of Parliament, potentially creating a Parliament nearing the size of the United States Congress.

The High Court of Kenya on 23rd May 2021 proclaimed that the Amendment Bill, 2020 was unconstitutional, as it was found to contradict the principle of constitutional amendments and the doctrine of the basic structure of the constitution. The court denied the existence of the doctrine as a constitutional fait accompli: Parliament and the County Assemblies given that the court has the obligation and jurisdiction of the petitions.

The court ruling has made the prerequisite obligations and jurisdictions invalid, ex post facto unless the petitions of the court are favoured. In reliance on Munya Case (supra), the court ruling allowed for the conservatory orders on the Constitutional Amendment Bill of 2020 dubbed BBI. The Court of Appeal on August 20, 2021, sustained a ruling proclaiming that the Building Bridges Initiative was unconstitutional.  It is also worth noting that according to the BBI taskforce report released by the Bomas of Kenya, the actual cost of the report was less than Ksh 100 million, and not Ksh 10 billion as hypothesized in various online reports.  

So how is the ruling a win for Kenyans?  If executed, the suggested BBI reforms would have weakened the Governance Institutions of Kenya. The initiative would have also led to the implementation of different reforms that if mismanaged, would lead to the delay of the 2022 national elections. The government expenditure would also increase causing unsustainability in implementing key government projects.

The expansion of the executive would have increased political stability but on the other hand, significantly increased graft. According to the case of Hon Kanini vs. Okoa Kenya Movement & 6 Others (supra), the legislative processes in the County Assemblies and Parliament ought to consider that the court can use relevant laws to safeguard the Constitution of Kenya 2010 and hence ensuring that the constitutional mandate is attained provided there is justification and circumstances. 

The BBI would also have not only intimidated judicial independence but also eradicated opportunities for the establishment of an efficient opposition to the government. Interfering with the independence of the judiciary means severely eroding democracy in the country, and at the same time, pervading any endeavours to adhere to the rule of law.

Therefore, the BBI Court of Appeal judgement exhibits an exemplary performance by the judiciary, as well as indicating its independence. Nevertheless, this arm of the government is still confronted by various challenges, such as the great need to design professional capacities and expand its infrastructure, and, more importantly, ascertain the integrity of judges.

The BBI initiative had worrying proposals for the judiciary. For instance, the BBI envisaged positioning the judiciary under the executive via a judicial Ombudsman, who is appointed by the president, a move that would have certainly extirpated whatever remains of judicial independence. Consequently, it would have been vastly hard to create the kinds of national ruling coalitions that could promote the interests of the common mwananchi, rather than just particular ethnolinguistic factions.

So did Kenyans have anything to lose? Considering the country’s history of political violence surrounding elections, this shifting landscape calls for great consideration. Even though a window of opportunity has been generated where inheritance of political violence in the country can be prevented, political leaders must commit to challenging past injustices and put forward significant change. Ultimately, without leaders accepting that some societal aspects like impunity, the arrangement of state institutions, and socioeconomic aspects have been sanctioned for political violence, and therefore the occurrence of earnest change is unlikely.

The youth in Kenya have become cynical of primeval political narratives and savvy regarding the cost of the government’s liberality geared towards voter mobilization. More importantly, it is quite impressive and comforting to know that Hon. Raila Odinga, one of the core proponents of the BBI initiative is satisfied with the ruling and now all his efforts are on the forthcoming national elections which will be in 2022.

This is a good indication that the country is heading in the right direction. In addition, the main opponent of the initiative, deputy president of the Republic of Kenya H.E William Ruto asserted that the attempt to amend the constitution under the BBI move is "the most dangerous project in Kenya’s history". The D.P also maintained that the BBI initiative was going to “install an imperial president who would control the Judiciary, the Executive and the Legislature. It was simply dangerous.” 

What is next after the ruling? All is not lost for the Attorney General,  Kihara Kariuki and BBI secretariat's co-chairs, Dennis Waweru and Junet Mohammed, as they have plans to present an appeal to the Supreme Court against modifying the constitution. The three plan to appeal the judgement as they believe that more than 4 million Kenyans supported the BBI initiative.

The parliament must scrutinize other proposals presented in the BBI document and try to pass some of the ‘legal’ amendment bills such as introducing the HELB grace period, and the 7-years tax holiday for youth in business. The youth in Kenya will therefore feel more represented.

The Youth Café, as a centrist non-governmental organization, therefore, calls upon all young people in the country to be not only critical examiners of government proposals but also active players in all democratic processes. Youth engagement in democracy not only promotes active citizenship but also strengthens social responsibility. The Youth Café believes that young people must get engaged in formal political processes and give their voice in drawing both today’s and tomorrow’s politics. 

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