There’s no crisis, BBI referendum push bound to fail

The Kenyan political scene has been an interesting one since President Uhuru Kenyatta and Raila Odinga shook hands on March 9, 2018. In the event, famously known as ‘handshake’, the two leaders made a declaration to cease all hostilities between them and find common grounds in the interest of the country. A document signed by both leaders titled ‘Building Bridges to a new Kenyan Nation’ was launched in the same month, highlighting nine issues to be addressed with the aim of creating a united nation.

A programme commonly known as Building Bridges Initiative (BBI) was established to assist in the implementation of the shared objectives. BBI, made up of 14 members and two co-chairpersons, was officially gazetted on May 31, 2018, with a term of one year. The team commenced their task from the first week of June 2018, and in May 2019, had their term extended by five months.

The handshake ended the acrimonious political rivalry between Jubilee and National Super Alliance (NASA) coalitions. The presidential election of August 2017 caused bitter rivalry between the two coalitions, throwing the country into turmoil especially after Kenyatta’s victory was nullified by the Supreme Court. He subsequently won a repeat election in October 2017 which was boycotted by his opponents.

Imminent betrayal

The post ‘handshake’ politics have seen political realignments and shifts of loyalty caused by jitters of imminent betrayal of Jubilee political promise and alleged MoU between President Kenyatta and DP Wiliam Ruto. The entry of Raila into the Jubilee boat and the trust he has earned from the President, real or imagined, has led to speculation the President harbours the intention of abandoning his political ‘bestie’ through the BBI initiative in the guise of uniting the country.

It’s October 2019 and the BBI team is yet to present its findings to the President. This has escalated speculation on what could be the content of its report. What is evident however is the inevitability of a constitutional referendum in view of the architecture of the BBI public hearings, the content of the views presented and the frustrations and hostilities the Ekuru Aukot-led Punguza Mizigo referendum drive faced.

The question that political scientists and commentators alike are asking in view of the history of comprehensive constitutional reforms across the world is: Is there a crisis in Kenya of significant magnitude to trigger a constitutional change? In my view, the political turmoil experienced before and after the 2017 general elections did not elicit issues that warrant change of a constitution that is only eight years old.

Kenya has undergone two major constitutional reforms since independence in 1963. The first was in 1969 and saw the federal and parliamentary system, with a bicameral legislature, replaced by a unitary, semi-presidential state with a strong presidency and unicameral parliament. The changes also curtailed some of the protections of the bill of rights. Another amendment in 1982 effectively instituted a single-party government.

External pressure

With the end of the Cold War in the 1990s, popular pressure led to amendments to the Constitution, and ultimately a more inclusive and democratic system. In 1992, these changes and external pressure from donor countries led President Daniel arap Moi to allow multi-party elections, which his party ultimately ended up winning.

However, since multi-party elections were restored in 1991, many of them have been fraught with tension. The violence that followed the 2007 elections, much of which was related to ethnic tensions, was serious enough that it led to a coalition government and ultimately built crucial support for the adoption of a new constitution, the second major reform in Kenya’s history.

The 2010 Constitution is still in its infancy, having barely lived a life of over nine years. Jurists, politicians, academicians and indeed most informed citizens wonder if it is opportune to have a rethink on the new constitutional order.

The contentious issues raised by Uhuru and Raila for consideration by BBI are legitimate as for the first time, Kenyans have began having serious conversations about inclusivity, strengthening devolution, sustainability of debt portfolio, corruption and building of strong accountability institutions. 

The lie, however, that has been told too many times, is that changing the Constitution is the magic wad to resolve our problems. In reality, Kenya’s problems are a direct result of systemic failures and national attitudes towards good governance, accountability, electoral justice, the rule of law often perpetrated by Kenya’s political elite, and not a fault of the constitution.

The BBI proposed constitutional changes is an elitist model of maximum reform that will only give the political class another opportunity to rebrand and reintroduce themselves and their proclivities. The forest may change, but the monkeys will remain the same.

Mr Mbiti is an advocate of the High Court of Kenya.