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How and why BBI may not require a referendum after all

By Kamotho Waiganjo | February 6th 2021
ODM leader Raila Odinga popularizing BBi in Lodwar Barasa Park. [Emmanuel Wanson, Standard]

The BBI train finally entered its critical stage last week with the transmission of the Constitution of Kenya (amendment) Bill, 2020 to the County Assemblies. The assemblies have three months to either reject or accept the Bill in its entirety.

Baba’s County did him proud by being the first assembly to say yes. I would be surprised if the Bill does not get approval by the requisite 24 counties in the next few weeks.

Even if there were no car allowance sweeteners, there are enough goodies to make it attractive, including MCAs being appointed to county cabinets and the constitutionalisation of the Ward Development Fund.

This being a popular initiative, the next step is submission to Parliament where the Bill needs only half of the members of each House to pass.

Kenyans have assumed that the Bill will then naturally go for referendum after it goes to Parliament and have already taken positions for and against it. It may never go for the plebiscite.

It can actually go from passage in Parliament to assent by the President and then become part of our constitution. I suggest that there are at least four reasons why the amendment may never go to a referendum.

Firstly, the Bill would need a referendum if it is rejected by more than half of the members of both Houses.

This is a near impossibility. If government manages to use its resources to get an approval by more than a thousand MCAs, three hundred odd members of Parliament will be easy picking.

Secondly, the Bill would be required to go for referendum if it contained any of the ten protected provisions set out in Article 255.

I have read and re-read the amendment Bill and I am not convinced that it expressly contains any of these protected provisions, unless one argues that the removal of the Cabinet approval provisions affects the functions of Parliament or that the appointment of the Judiciary Ombudsman offends judicial independence.

These are arguable points and the promoters of the BBI may prefer to take a risk and only go for a referendum if it is decreed by the courts.

Thirdly and most importantly, there are political reasons for not subjecting the matter to a referendum.

The current political mood in the country is generally anti-establishment, despite all the infrastructure and other development programmes initiated by government.

The Hustler narrative, both as a political and a socio-economic movement has gained ground. It is increasingly finding acceptance across the social spectrum in a country where “we” all feel excluded by “them”.

Interestingly, the anti-establishment brigade is led by the ultimate establishment man, a Deputy President who has been in Parliament and in Cabinet for decades! Such is the nature of politics.

Remember Donald Trump, an insider billionaire, won the hearts of the poorest whites in America by presenting himself as the ultimate anti-system!

Knowing of these political headwinds, why would BBI’s promoters run the risk of a contested referendum in which they may lose or win but leave grievously wounded?

There are also serious financial considerations to be taken into account. Government is limping with severe revenue constraints. Why spend an extra Sh15 billion on a politically expensive referendum whose result is uncertain and whose constitutional necessity is at best contested?

Of course the danger with avoiding a referendum is that the consequent amendments may have legal validity, and that is assuming that our courts do not declare them procedurally incompetent, but lack legitimacy.

Kenyans passed the 2010 constitution in a referendum and they expect to have a say when it is adjusted fundamentally.

The promoters of BBI have also consistently promised a referendum and a “betrayal” of this promise may have a political cost in the 2022 elections.

The next few weeks should be interesting as the owners of BBI weigh all these options. If I was placing a bet, my money would sadly be on no referendum, assuming of course that the Bill passes the county assemblies and Parliament.

But unlike Prof Makau Mutua, I will not ask you take this to the bank.

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

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