With fall of BBI, Uhuru and Raila must ask hard questions

President Uhuru Kenyatta and Former Prime Minister Raila Odinga look at their signatures during the launch of the collection of signatures for the Building Bridges Initiative (BBI) at KICC in Nairobi on November 25, 2020. [Stafford Ondego, Standard]

Whether we recognise it or not, the legal and political history of our times is being made and written. Future generations will read about this season as the age in which the Kenyan Judiciary found its feet, courtesy of the 2010 Constitution.

Of all the institutions of government, the Judiciary has distinguished itself as a veritable firewall in the rule of law. The final fall of the Building Bridges Initiative (BBI) is only the latest example in the Kenyan judicature’s resistance against political tempests that have attempted to emasculate the rule of law. 

All those who occupy public space must especially take note that they are etching their memory and legacy in history. It will be recalled that when the process began in 2018, this column was concerned about the illegalities and irregularities that informed it. And they were repeatedly unbundled here.

The foremost plea was always that the process should be expanded to be more inclusive, and be institutionalised within the framework of law. Counsel was spurned and ridiculed. Rational voices elsewhere were drowned in political demagoguery. “Nobody can stop reggae,” they said, even as they executed lewd dances and drama around the country. 

Reggae has now stopped. It is dead, kaput. President Uhuru Kenyatta and former Prime Minister Raila Odinga will be reflecting for long about what hit their reggae.

But beyond them, all those in positions of leadership will want to reflect deeply about the quality of counsel they receive from their acolytes, assignees and kowtowing toadies. 

We have watched in utter disbelief over the past three years as senior lawyers have stood on public platforms and uttered untenable things about the reggae process. They misled President Uhuru and Mr Odinga. If they cannot leave the space around the two leaders, they should be made to see the door. If they stay on, the two political giants should prepare for more egg on the face.

Yet it is also possible that President Kenyatta and Mr Odinga do not like receiving advice contrary to their primary thinking. They, accordingly, elect to sit with hagiographers who treat them like saints.

Attention now shifts to Attorney General Paul Kihara Kariuki. What advice does he give the President, as his constitutional principal legal adviser?

Following the death of reggae, can he sit comfortably with his conscience and continue to advise the President?

Is it not about the time the AG and the legal team around the President and Mr Odinga did the noble thing? Should they not create space around the President and allow them to populate the space afresh, for whatever that may be worth?

 Deputy President William Ruto, will be making political capital out of the death of reggae. He was always against the process and, indeed, part of the substance.

When he rose up to express himself at the Bomas of Kenya, the crowds yelled at him. The big lesson is that the right end of the stick does not change, just because of the person holding the stick.

Had the President and Mr Odinga not allowed themselves to be guided by political animus, they would not have come to this embarrassing pass.

We all learn that some things are wrong, eternally wrong, while others are right; eternally wrong. It does not matter who is involved. 

My fellow scholars will also want to ask themselves about the positions they take in public discourse versus their fidelity to their learning. The intelligentsia adds zero value to society when its role is to play the sycophant. 

As an intellectual, please stay with the truth, even if you advise politicians. If the king is naked, please tell him to find a leaf to cover his essentials.

If the zip is down, whisper to him to pull it up. Mercifully, reggae can still be reconstructed. Sometime in future it could return, its owners chastised and wiser. Meanwhile, history is recording itself, regardless.

Dr Muluka is a strategic communications advisor.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021