The courts have fatally deflated President Uhuru Kenyatta and ODM leader Raila Odinga’s 2022 game plan — annulling the BBI process— a central pillar in their succession strategy.
The Building Bridges Initiative, among other proposals, sought to expand the executive, introducing the office of the Prime Minister with two deputies.
This was a radical configuration of the executive seen by critics to accommodate the big boys.
However, Uhuru and Raila consistently argued that Kenya was bleeding from a winner takes it all system of government, with the country spending almost two years after every election on conflicts.
The BBI was therefore meant to among others, create inclusivity in the national executive.
However, the process was also seen to be at the heart of Uhuru’s political strategy to cobble a behemoth political machine to face Deputy President William Ruto next year.
Uhuru and Ruto do not see eye-to-eye.
The powerful positions created in the bill could easily bring together opposition heavyweights for a mega alliance to face the DP.
Already, Uhuru and Raila have held two closed-door meetings with the One Kenya Alliance leaders – Musalia Mudavadi (ANC), Kalonzo Musyoka (Wiper) and Moses Wetangula (Ford Kenya) – for 2022 talks at State House in Mombasa.
Prior to the historic ruling, Raila said they would not appeal the ruling should it go against them.
In a statement to newsrooms Friday, the former PM termed the judgement remarkable but predicted it’s not the end of the conversation.
“It’s likely that this is not the end of the conversation and the parties involved will each make their own decision on how to proceed from the decision that has been delivered today. That is welcome as the issues involved need to be deliberated to the fullest extent,” Raila stated.
For his team, however, Raila said they “have to move on”.
“We feel that we must now see the forest for the trees, and pursue the bigger goal f setting the rest of the issues facing this country right. The Building Bridges Initiative was never a destination but a journey in an ever-evolving way of life,” he stated.
We shall deal with all the issues in the months and years that will unfold onwards, Raila promised.
The Court of Appeal on Friday handed Uhuru and Raila a stinging political blow at a time they had escalated their 2022 succession plans against Ruto’s Hustler Nation movement.
The bench headed by Court of Appeal President Daniel Musinga tore into the BBI process, declaring several stages and actions unconstitutional and unlawful.
“The whole process was null and void and in the end am happy we have kept the constitution sound and safe up and until this moment and may it remain as such,” Justice Patrick Kiage said.
The Judges also appeared to raise the bar on amending the Constitution through popular initiative and making it even harder to amend the country’s supreme law.
The majority faulted the President for riding on a popular initiative – an avenue reserved for the common man – to instigate constitutional changes.
“The popular initiative was meant for the people, not their representative. The promoter must be an ordinary citizen, not a politician,” Justice Hannah Okwengu said.
The Judges ruled that the basic structure doctrine was applicable to the Kenyan constitution as it sought to interfere with the certain eternity clauses of the Constitution that cannot be amended.
“I will not accept for criticism levelled against the high court judges on their interpretation of the constitution. Those who swear by the Constitution must be ready to live with its requirements or else give such offices a wide berth,” Justice Kiage said.
The Judge, in his lengthy judgement, shred the views of those claiming that the doctrine of basic structure was not applicable in Kenya saying they must have had a problem in understanding the issue.
“The Constitution calls on judges to be warriors in the defence of human rights and the rule of law, averse judges are part of a global community and are enjoined to borrow and apply progressive ideas and practices from other jurisdictions in their work,” the judge said.
Musinga termed an unlawful proposal to introduce a Judiciary Ombudsman saying that the move would be a terror to judges, magistrates, registrars and all judicial staff.
“This is an ingenious claw back to the independence of the judiciary,” he concluded.
The Judges made a finding that there was no proper public participation by the county assemblies’ prior to their rushed approval of the constitutional amendment bill.
On public participation, Justice Musinga faulted the promoters for publishing in their website only English version of the Bill despite the fact the constitution identifies Swahili as the national language
The judge said the MCAs rushed to pass the BBI bill without conducting public participation.
He faulted the Salaries and Remuneration Commission for handing them Sh2 million car grants in the middle of a pandemic as if the country was in a state of emergency.
“There was a mad rush by MCAs to demonstrate party loyalty…the people didn’t matter. They received Car Grants and acted as if Parliament was in a state of Emergency,” Justice Kiage said.
The majority also declared that the IEBC was not properly constituted to conduct a referendum as it lacked a quorum.
In their wisdom, the Justices said the electoral body needed at least five commissioners to ratify and kick start the referendum journey.
Sources intimated to the Star that Raila, said to be the President’s preferred successor, now considers promising the country a referendum 90 days after the August 9, 2022 polls.
This is on the assumption that he wins the Presidential contest.
However, politicians and political observers poured cold water on the possibility of conducting a referendum, with less than a year to the general elections.
“We have run out of time,” Makueni Senator Mutula Kilonzo Jnr, a proponent of the changes. We can’t have the election and referendum within a year of the election. The referendum must give way,” Makueni senator Mutula Kilonzo Jr said.
The position is backed by lawyers Mutakha Kangu and Paul Aol who said the IEBC would need time to prepare.
“I don’t think there would be a referendum. There would not be enough time to do that. A referendum is an election and it still requires registering voters and all the others.
“The truth of the matter is that we are now less than 365 days to elections and the IEBC is planning for the general election,” Kangu told the Star.
By The Star