It would be foolhardy for the BBI promoters to fully reopen the document to incorporate the myriad wish-lists being bandied about by various protagonists. While some are reasonable and would improve the product, a good majority are self-seeking antics that have no place in a constitutional review process while others are sideshows intended to do no more than jettison the entire project.
Having said that, it would be just as foolhardy to proceed on the mantra that the BBI, like the biblical law of the Medes and the Persians, cannot be changed. Two perspectives inform this latter position.
On one hand, the politics of today do not lend themselves to a “my way or the highway” approach. The post 2010 Constitution is a participatory Kenya where people need to feel they have been listened to.
The alternative is just bad politics. The other challenge with the “can’t be altered” approach is that the document has some substantive defects that require, at the minimum, some “editorial” work.
While the BBI technical team must be congratulated for producing a largely acceptable document, but for the politics, it still requires some work to ensure it does not regress our constitutional development and that it achieves what it says it seeks to achieve.
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Three issues stand out. The proposal to have the IEBC comprised of a majority of direct political party representatives severely poisons the electoral management process.
In hotly contested elections, direct partisans overseeing the elections is recipe for disaster because those who sit in the Commission purely as “candidate representatives” have no incentive to support an outcome in which their candidate loses.
Welcome to the age of results being rejected by losing candidates supported by portions of IEBC.
A more reasonable proposal would be to enhance the role of political parties in the selection process but have the appointed persons, be, and at the very minimum appear, as independent.
The other challenge with the draft is its impact on “winner-take-all” politics.
To cure this malady, the BBI amendments propose inter alia an enhancement of the role of the runner up to the Presidential election by allocating them the position of the Leader of the Opposition.
This progressive proposition however failed to recognise that Kenya’s politics are coalition politics.
A presidential candidate offers his candidacy with leaders of communities and allocating a position solely to the runner up leaving out their top coalition partners only partially resolves the exclusion question.
If that position is also meant to strengthen the oppositions’ ability to hold government accountable, the runner up alone has only so much political muscle to keep government in check.
It may have been more prudent to include two positions of Deputies for the Leader of the opposition to manage community concerns about exclusion and also increase the political muscle of the opposition in the House.
Thirdly, the ease with which the Prime Minister and Deputies can be fired by the President makes them no more than glorified Cabinet Secretaries.
That lowers the profile of those positions and weakens the raison detre’ for expanding the Executive. Raising the threshold of their sacking to involve both the House and the President may ease this concern.
My final concern with the initiative is the gender proposal. Granted, the proposed changes are an improvement from our current position.
But more could have been done to raise the profile of this issue by including the “not more than two thirds” in the top five positions and converting the “shall consider” to “shall appoint” in the gubernatorial seats.
Finally, while one appreciates that BBI has increased the absolute numbers of women seats, there is legitimate concern that most of these seats are in the Senate, the weaker of the two Houses.
While one is not looking for the perfect document and while some of the above and other concerns can be considered in the inevitable next round of review, I do believe that some alterations are necessary before the document comes to the people for a vote. It is, at the minimum, good politics.
-The writer is an advocate of the High Court of Kenya