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BBI battle between pragmatists and legalists leaves Kenyans in limbo

By Elias Mokua | Dec 16th 2021 | 3 min read

President Uhuru Kenyatta and ODM leader 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]

What is it in the Bridging Bridges Initiative (BBI) that is refusing to die? The High Court announced BBI was a dead horse. The Court of Appeal conducted an intensive examination and concurred with the High Court that the initiative was an offshoot of an illegality. Now the Supreme Court is interrogating the document to judge if there is any life left in it.

President Uhuru Kenyatta, on the one hand, has been very keen to remind us that BBI was not as bad as we were made to believe. His deputy William Ruto, on the other hand, reminds us at every occasion that the government’s development agenda stopped once someone started reggae (BBI). Deep down the hearts of the two antagonists, BBI troubles them.

BBI dominated the national debate for such a long time that even with Covid-19 setting in, the debate raged on in our media spaces. So, when the Court of Appeal decided that reggae stops, we thought we had moved on. Indeed, political parties that were beginning their formations on the prospects of an expanded executive collapsed. As a result, we now have two protagonists headed for the presidential contest neck-to-neck.

Why then does the BBI agenda keep reappearing?

Well with the benefit of time-lapse, we now clearly see that there were two schools of political thought at play: pragmatists and legalists. It is very difficult to reconcile a contest between the two worldviews. Pragmatics get things done. Their main limitation is that when pressed with what appears achievable, they disregard the law even if a bit of consultation would still lead them to the desired outcome.

The strength of the legalists is their ability to pay attention to processes to ensure fairness. Their weakness is that high tempo political events melt their capacity to enforce the very law they live for.

On BBI, pragmatists argued that Kenyan general elections were divisive. Were it not for the Handshake following the strongly contested 2017 presidential results, the country would have blown off as another failed African state with two presidents, one legally sworn in and the other “sworn-in” as the People’s President.

The ever-repeating history of chaotic, fatal, contested elections, especially for the presidential seat, led to a desire for a long-term solution. It is this search for a solution that led to the now infamous BBI. In the heat of the moment, everyone praised the two “presidents” for putting the good of the country before their own fanatical followers.

Not long after peace was finally restored that the legalists jumped in. They combed through the Constitution to generate evidence that the process was invalid. I happen to have attended several sessions where the Learned Friends tore into the whole BBI process, showing danger signs all over the document that had been generated by the BBI Task Force. In their submission, Kenya was headed in the wrong direction if a referendum was held and the proposals in the embedded referendum question approved.

All said and done the legalists carried the day. The pragmatists are back to where they were: An impending election with more or less the same “disabling environment” in which tensions characterise poll outcomes. Interesting how things change. The legalists are now pushing the pragmatics to be “pragmatic” and ensure “some form of enabling environment” is created so we can have a peaceful election.

Religious leaders called for an all-inclusive process but since the politics of the moment promised winners and losers, each side dug in. Now we are worse off as we head to the August 2022 elections than if we had listened to the voice of reason.  

BBI will soon emerge as an opportunity lost to make our electoral process fair and credible. Another moment will surely come but not until we have run over each other again. We pray that the upcoming elections are peaceful. However, should problems arise, I am not sure whom we shall turn to for blame.

Dr Mokua is Executive Director, Loyola Centre for Media and Communications

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