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Whatever the verdict, it's headache for BBI backers

By Brian Otieno | July 4th 2021

Court of Appeal judges during the hearing of the Building Bridges Initiative (BBI) appeal case on Thursday. [Collins Kweyu, Standard]

Proponents of the Building Bridges Initiative (BBI) Bill have to wait until August 20 for the Court of Appeal verdict, denting hopes of a referendum in good time before next year’s General Election.

Stacked against them are strict timelines to beat, and grueling campaign to convince ordinary Kenyans on the need to change the 2010 Constitution.

Drivers of the Bill had hoped to have the proposed changes apply in 2022 elections. Their proposal to add 70 new constituencies tied their hands constitutionally.

Article 89 of the Constitution requires any boundary review process to commence 12 months before a general election of members of Parliament.

The Independent Electoral and Boundaries Commission (IEBC) has affirmed that it will hold next year’s poll on August 9, being the second Tuesday of August in the election year as directed by the Constitution.

However, BBI Secretariat Co-chairman Dennis Waweru said the Bill had addressed that legal barrier. “BBI provided for a waiver of the said timeline for the new constituencies,” he said yesterday.

Given that the BBI case – regardless of the appeal outcome – may end up in the Supreme Court, time is not on the promoters’ side.

Court of appeal judges, from left, Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyot. [Collins Kweyu, Standard]

If the case goes their way, constitutional timelines may force them to abandon some of the goals they wanted through the amendments.

A referendum may still be on the table for them, but more hurdles for a plebiscite await at every turn.

“If the matter ends up in the Supreme Court, then it will be in abeyance until it is heard and determined,” said Bobby Mkangi, one of the framers of the current Constitution.

He said the matter would take similar timelines at the higher court, if not more, dragging the BBI case three to four months on.

Bill sails through

“Even if the Bill eventually sails through a referendum, the results can still be a subject of litigation that can go on and on. Proponents of the Bill pegged themselves on timelines they were never in charge of,” said Mkangi.

On the timelines, observers foresee a three-month time frame within which the IEBC would conduct a proper referendum.

Within this period, the IEBC would prepare for the vote through formulating a referendum question or questions, coming up with symbols for the respective parties involved, hiring and training staff, conducting voter education, preparing ballot material, among other activities.

“Any election requires adequate preparation and resources,” said Mulle Musau, the national coordinator of Elections Observation Group.

Court of Appeal court judges during the second day of hearing of BBI at the Appellate's court on June 30, 2021. [Denish Ochieng, Standard]

Besides the strict timelines is the logistical nightmare of running an election. “We may not have enough resources to conduct the General Election, what of the referendum?” asked Musau.

He said holding a referendum before the General Election would adversely impact next year’s exercise.

“Imagine having a referendum, political parties’ nominations and a general election. That is too much for our country to take, and something will give,” he warned.

“Perhaps the most practical window may be having a possible referendum with the General Election,” said Mkangi.

Before a five-judge High Court bench slammed the brakes on the BBI Bill, it had glided effortlessly through the earlier stages in County Assemblies and Parliament.

High Court justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresiah Matheka, declared the BBI process and the Constitution of Kenya (Amendment) Bill 2020 unconstitutional, null and void.

Supporters of the Bill remain optimistic that they will get a favourable verdict from the Court of Appeal and finalise the process in good time.

However, Murang’a Senator Irungu Kangata said the BBI Bill cannot be changed. “The legal opinion which Parliament endorsed is that one cannot sever the BBI document. It is an indivisible whole document,” he said.

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