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Raila's viable escape route besides BBI in ride to Canaan

By Special Correspondent | May 23rd 2021

ODM leader Raila Odinga during the commissioning of Ugunja Kenya Medical and Training College in Siaya county on February 26, 2021.[Collins Oduor, Standard]

Raila Odinga is no stranger to setbacks in politics and before the courts. He has taken many hard knocks over the years and has frequently touched the canvass, only to come back and continue fighting, bloodied but unbowed.

Resilience, reincarnation and return would seem to be the mantra in his engagement in public life.

Raila has also had the energy to keep running, the charisma to carry his followers along, regardless of where he is taking them, and the courage to stand alone when need be. It is within this framework that pundits will be looking at the ODM leader in yet another return effort, after the Building Bridges Initiative (BBI) was scuttled in the High Court on May 13.  

Will the mercurial political mastermind known to his Luo compatriots as Agwambo (the slippery one) pull yet another rabbit out of his bag, to give himself yet another lease of life? Or is he eventually floored for good? Does he still have the stores of energy and robust health to draw from? What are his options in a legal and political environment that seems to have suddenly piled heavy odds against him?  

Raila has placed all his hopes for the tenure after President Uhuru Kenyatta’s exit next year on BBI. From the Handshake moment in March 2018 to the subsequent BBI spinoff and beyond, Raila has exercised extreme restraint. He has refrained from anything that could upset the Handshake applecart and derail the BBI success. Asked about his plans in the post-Uhuru dispensation, he has always been cagey.

“I will make my position known after the referendum,” that has been as far as he has gone.

He has also refrained from any direct criticism of the Uhuru government, even where it has seemed to go off the rails. It is only in the ended by-elections in Bonchari that he has come out to lambast “state functionaries” which he said were “taking for granted my handshake with President Uhuru.” 

It has been a policy of appeasement and walking softly. Then, suddenly, the five-judge Bench of Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Mumbua Matheka detonated a bombshell. The 21 orders against the BBI are a veritable death warrant. Alongside President Kenyatta, Raila must strive to overturn the orders.

However, if he cannot overturn them, he must find an escape route to the destination he desires BBI to take him. Of course, like the president, Raila always positioned BBI like an altruistic assignment. It was his gift to future generations, founded on the nine principles of the Handshake.

Some of Raila’s cronies have, however, consistently let the cat out of the bag. Cotu Secretary General, Francis Atwoli, and Jubilee National vice-chairman.

David Murathe have been outstanding. It takes the slightest provocation for them to tell Kenyans that the people they see around the BBI will form the next government.

Murathe has repeatedly told Kenyans to be prepared for a Raila presidency. He equates Raila to South Africa’s first African president, Nelson Mandela, and says that Raila has fought for democracy in Kenya the same way Mandela fought against Apartheid in South Africa. Accordingly, Kenyans owe Raila the highest office in the land, he says.  

Rescue plan

Separately, Raila has less need to focus sharply on overturning the High Court’s decision than Uhuru. The president has been condemned for “breach of article 73(1)a(1).” He has been placed in impeachable space, “for acting against the responsibilities of leadership in line with responsibilities assigned to a State officer.”

Raila has no such baggage. If the burden of appeal court processes should prove heavy and the movement painfully slow and perilous to his political goals, Raila will face the dilemma of choosing between standing with a friend in his time of need, on the one hand, and pursuing what seems more practical and expedient, on the other. 

The expedient thing for Raila to do would be to let BBI fly away, and to seek constitutional amendment through Parliament, as the most practical avenue of salvaging what remains in the BBI package. The trouble is that there can be no successful constitutional amendment process through Parliament at this stage without the President.

Although any member of either House can introduce a Bill, the process is neater when managed through the Attorney General’s office. This would carry the president along, and the 235 MPs who voted for the BBI Bill, against the 83 who rejected it, while two abstained.  

Auditing and levelling of the issues to be taken through a parliamentary constitutional amendment effort also requires the joint energy of the two leaders. And with the possibility that some of the issues could still end up in a referendum, the need for sustained cooperation between them remains strong.

They need to enact a referendum law, to constitute a complete IEBC that they can trust and to mobilise the numbers to vote for the Bill at the referendum. In short, there can be no useful movement in the BBI process for as long as the harsh court verdict against Uhuru remains in place. Uhuru and Odinga are joined at the hip, as they say.  

Already the two leaders have begun cobbling up their legal teams to appeal against the BBI judgement. IEBC is also getting set. It is likely that each team will focus on specific areas of the judgement. For the President the most critical will be to prove that he has not broken any law. For Raila it will be to show that none of the rest of the 21 points is valid.

In essence, if the Court of Appeal determines that the president is not in breach of the law, and yet goes on to condemn BBI on any one of the other grounds, Uhuru will be off the hooks even as BBI stands condemned. At this point, Uhuru can decide to carry on with the effort to salvage what is left of BBI, or to leave Raila to his own amendment designs and devices.  

But even before matters get to that pass, it is critical for Raila to ponder the rest of his political way forward. The beginning point is the assumption that the Court of Appeal will sustain the High Court verdict against BBI. Does he go all the way to the Supreme Court? Does he have the luxury of time?  What would be the political merits of further appeals while running out of time to the next election?

Already, the General Election is around the corner. Nothing in BBI stops the country from fulfilling this constitutional obligation. IEBC is being reconstituted. It should shortly begin preparing for the elections, regardless that there is a BBI tussle out there. Is it time for Raila to think of Plan B outside BBI? Should he pull out the plan if one already exists? Plan B must assume that the country goes to next year’s elections on the current constitution. There is, therefore, no room for an expanded Executive with mouth-watering political carrots to dangle around.  

Repair bridges

The Handshake season has this far witnessed warm relations between Raila and the President while also bridges with other key political players have been damaged. Most impaired is the once healthy compact between Raila and Deputy President William Ruto. The past three Handshake years have witnessed a steady deterioration of relations.

The two often trade harsh brickbats in public. Raila has also had a bad season with his former NASA allies – Musalia Mudavadi (ANC), Kalonzo Musyoka (Wiper) and Moses Wetang’ula (Ford Kenya).

Both sides have given as much cheek as they have received. Is it time for them to rethink the hostility that has ruled their relations around political party funds and about whom to support for President in next year’s race? 

A collective dilemma for this class is how it will address its strongholds, should the decision be reached to allow someone else to carry the presidential ticket. Raila and Ruto have recently been speculated to be holding hushed exploratory talks on working together.

The Constitution bars the DP from holding that office beyond the current term. Will Raila accept to play second fiddle to Ruto? How will his core constituents take it? And can Ruto support Raila and stay out of the race altogether? It seems highly impossible. It looks like both must run. 

For the remaining NASA principals, and Kanu Chairman Gideon Moi, the choices do not seem to be that many either. Any one of them who does not run next year is likely to kiss his political career goodbye. It is especially unlikely that Mudavadi, Kalonzo and Moi can carry their ethnic bases to any formation in which they are not the flagbearers.  

In the end, the BBI court saga has become the proverbial rat trap. It has put insiders and outsiders on hot bricks. If the higher courts do not overturn the verdict in good time for a referendum – and if the referendum does not go through – then each one of the big five must prepare to run for president, or seriously think about retirement from politics altogether.  

If they all run, the likelihood of a presidential election rerun is real. That will be the season to trade horses and to build alliances.

Meanwhile Raila must join Uhuru in attempting to overthrow case No. E282 of 2020, even as they recognise that time is out of joint. It is also a less robust Raila on the stage today. He will also have to reflect about rebooting his energy levels, besides managing emerging dissent and discord in his own party.

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