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Don’t take blindly what they tell you on BBI, it’s just political posturing

By Kamotho Waiganjo | October 31st 2020

Coined as far back as 1758, the quote, which in its original form reads “...among the calamities of war may be jointly numbered the diminution of the love of truth, by the falsehoods which interests dictate and credulity encourages..” is as true now as it was then. Nothing approximates a season of war like a season of political contestations.

As we head to Kenya’s big contest in 2022, all elements of war, sans physical violence exist. And even the latter may not be far off. We have troops and their generals. We have resisters, loyalists and continuous recruitment. And most of all we have the ultimate weapon of all war, propaganda.

The reality that we are in some form of war explains the various contending positions taken on the BBI report. The large majority of opinions are based not on facts and truth but on people’s political persuasion.

If you listen to supporters of the “handshake”, the BBI amendments guarantee political nirvana. No longer shall we fight after the elections. Kenyans, including women, will no longer feel excluded. Power will now be effectively shared.

As for the opposite “Hustler” side which includes those who can’t stand the Uhuru government, the document is a fraud. It “imperialises” the Presidency, captures the Judiciary and only shares jobs for the dynasties. 

The two sides are effectively supported by a host of professional pundits giving different interpretations of the same provisions leaving most commoners confused.

Today, I want to debunk two favourite arguments by the Hustler coalition. Next week, I will challenge two positions argued by the handshake team. First, the alleged return of the “imperial Presidency”.

Those who lived in the Moi regime must be shocked to hear that the Kenyan Presidency, as adjusted by the BBI amendments, is imperial. Let me briefly describe the pre 2010 Imperial Presidency. The President appointed, and could fire, the Chief Justice and all judges. The President appointed, and could sack, all heads of the security agencies.

The President appointed, and could fire Attorney General who was also the Head of Public Prosecutions. An opposition to the President could legally land you in detention without trial. The President decided on the terms of Parliament and could adjourn or dissolve the House at any time.

More than 50 per cent of Parliament comprised of Cabinet members, guaranteeing the President a favourable vote in the House on any issue he was interested in. The Presidency decided on the budget hence single handedly determining allocations; hence “siasa mbaya maisha mbaya”.   

The President decided on the election date; President Moi called it his “secret weapon”. The President appointed and could fire members of the electoral commission. I could go on and on.

What is the basis for the allegation that the imperial presidency is back? That Cabinet Ministers and Permanent Secretaries will not be approved by Parliament. This is idle thinking at its best. The second curious attack on BBI relates to the Judiciary. According to Hustler-think, the President appointing an additional member to the JSC is tantamount to capture of the Judiciary.

As the Brits would say what poppycock! The new JSC would have 12 members of which 3 would be appointees of the President, and these three, including the Ombudsman, are subjected to Parliamentary approval, a process similar to the way members of independent organs are currently appointed into commissions.

Incidentally, the same people arguing that removing approval by Parliament for Cabinet Ministers results in an imperial Presidency, see no contradiction in arguing that approval by Parliament means nothing when it comes to the Ombudsman!

Furthermore, the Ombudsman has no prosecutorial powers.

He can only investigate and take his recommendations to the JSC which makes the final decision on disciplinary matters. So assuming the JSC is 9/12 independent, how will the President capture a Judiciary where the ultimate decision on all matters is still made by the JSC? 

Granted, there are tweaks that can be made to the BBI to improve it, but do not be cheated; most of the vehement opposition to it is not fact based. It just reflects our season of political war.

-The writer is an advocate of the High Court of Kenya

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