Instead of reforms, BBI report promotes political enclosure

The trigger for the Building Bridges Initiative (BBI) was the disputed results in the 2017 presidential elections, the third in a row. The first disputed results, in 2007, triggered a major political crisis that needed international mediation. That mediation yielded a programme of far-reaching electoral reforms, calculated to prevent future electoral violence.

The dispute in the following elections, in 2013, benefited from the reforms that had been undertaken after the 2007 election, which now included the enactment of a new Constitution. While parties to the 2013 electoral dispute entrusted their fate to the newly-established Supreme Court, established by the new Constitution, the underwhelming performance of the court when called upon to manage the dispute, demonstrated that even a reformed Judiciary is inadequate to manage such disputes. After enduring a five-year pummelling from the public over its mismanagement of the 2013 electoral dispute, the Supreme Court rose to the occasion and annulled the 2017 presidential results, ordering that fresh elections be held. However, the quality of the fresh election was demonstrably poorer than the one the court had annulled, even though they upheld its results.

Under these circumstances, the BBI was created as a personal initiative by President Kenyatta and Opposition leader Raila Odinga, out of concern over the destabilising nature of electoral disputes. While the history of electoral instability generally, and the dispute resulting from the 2017 election in particular had triggered the BBI, its report contains surprisingly little content about how future elections will be made safe from political violence.

The headline-grabbing recommendation in the BBI report is for the expansion of the national executive by establishing the office of Prime Minister in addition to that of president and deputy president. The nearest that the report comes to the subject of elections is a recommendation for the dismissal of current members of the Independent Electoral and Boundaries Commission. If this recommendation is implemented, it will be the third time that the country would be clearing out its electoral commission, and would mean that the disputed elections have culminated in the removal of the electoral commissions that ran them.

The country first attempted comprehensive electoral reforms through the Kriegler Commission which carried out an extensive investigation of the problems of the 2007 elections. By contrast, even though failed elections were central to its mandate, the BBI process was not equipped to investigate the failures of the 2017 elections, and its report has sidestepped the subject of electoral reforms altogether.

The decision not to address electoral reforms is not unrelated to the decision by the BBI process to recommend an expanded executive. The 2017 elections confirmed, once again, that there are no consequences attached to the failure of elections. If state repression is needed to quell citizen anger over failed elections, the state will liberally administer such repression, as happened in Western Kenya during recent elections.

In three successive elections, Odinga made a credible attempt at using the ballot to gain political office. While his failure the first time triggered a major crisis, he was brushed off the subsequent two times. Cumulatively, the three failures have crystalised a realisation that the ballot is no longer available as a method of accessing political power. With the ballot closed the political elite, including Odinga, have accepted that a boardroom negotiation is a more certain pathway to political power.

While the handshake promised political reforms, it soon degenerated into a boardroom negotiation for power between Kenyatta and Odinga, out of which Odinga hoped for a political enclosure that would give him guarantees for 2022, copying what happened in 2013 and 2017. Obviously, this greatly upset William Ruto with whom Kenyatta already had a deal. Odinga needed a referendum before the 2022 to consummate the enclosure. The failure by the BBI to recommend a referendum leaves the deal between Kenyatta and Odinga unconsummated and, therefore, vulnerable, giving Ruto hope that Kenyatta can come back to him for 2022. That is why Ruto quickly embraced the BBI report out of which Odinga has emerged empty-handed.

By expanding the national executive, the BBI creates enough space at the top for co-opting (ethnic) elites who will be told to support the establishment in exchange for a piece of the action, or oppose the establishment and risk banishment out of the enclosed politics.

Rather than recommend reforms that would make the ballot count again, the BBI process promotes political enclosure, the capture of political leadership. The momentous decision for the country, during a previous era, was between single party politics and multi-party politics. The choice now is between preserving Kenya as a multi-party state where the ballot is the only means of transferring power or leaving the country in the hands of a small power elite who, decide among themselves who should rule the country. 

- The writer is the executive director at KHRC. [email protected]

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