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Premiership post: A realistic shot or 2022 campaign ruse?

By Oscar Obonyo | September 19th 2021

Attempts by Parliament to create positions of prime minister, two deputies and an additional deputy president have run into fresh trouble – thanks to the conflicting positions of DP William Ruto and ODM leader Raila Odinga.

The deputy president is categorical the efforts spearheaded by the Constitutional Implementation Oversight Committee (CIOC) under the leadership of Ndaragwa MP Jeremiah Kioni, are tantamount to sneaking back proposals contained in the Building Bridges Initiative (BBI), which have so far been rejected by the High Court and the Court of Appeal.

Speaking in Bungoma during a whistle-stop campaign on Friday, Ruto urged Members of Parliament to shoot down CIOC’s move to “reintroduce BBI through the backdoor”.  

The DP’s protest came barely two days after Raila, while on a tour of Kiambu, reassured residents that the reggae beat (BBI) would not stop until the enactment of laws that take into account “the one-man, one-shilling” policy was finalised.  

The clash of interest between the two politicians on the CIOC push was expected. Raila is a confessed BBI crusader, but Ruto, who views BBI as a tool for the former PM to ride on to State House, has fought the product all way and publicly celebrated its fall.

Kioni is however unhappy by the action of the DP singling him out as a man on a mission to hoodwink Kenyans: “That the DP is calling on MPs allied to him to shun Mr Kioni and his team amounts to politicising the constitution-making process. Let us not personalise this process but rather critique it on its merits”.

The Kioni-led committee plans to create five new offices of prime minister and his two deputies, and an additional position of deputy president. The PM, according to the draft Bill prepared by Parliament’s legal office, will be appointed by the party with the highest number of MPs.

Ndaragwa MP Jeremiah Kioni. [David Njaaga, Standard]

Yesterday, Kioni told the Sunday Standard that members of his team had just returned from a retreat in Mombasa, where they had pieced together thoughts of Kenyans into legislative pieces “that will guarantee a peaceful poll and political co-existence thereafter”.

“Our technical team is currently fine-tuning the amendments, before we embark on the next course of action,” he said.

Before the Mombasa retreat, some members of the CIOC indicated to journalists that the proposals, if passed by Parliament, would be presented to Kenyans for endorsement in a referendum to be held on the same day as the polling day on August 9th, next year. Besides cutting the cost of the referendum poll, the logic behind the move is to execute the changes in the new government to be elected next year.

“If we succeed on this front, then we shall greatly reduce toxicity levels in our campaigns as well as reduce the high voltage life-and-death type of campaigns. Instead, politicians will engage at coalition and not individual level. This reduces animosity and encourages issue-based campaigns,” argues Kioni.

Separately, the proposals mooted by the Kioni team have direct political implications, which could directly influence pre-2022 campaigns and political re-alignments.

Creation of more slots within the Executive would, for instance, make it easier for political players coalescing around President Uhuru Kenyatta and the BBI exercise to share power under one entity.

Coalition interests

On the flipside, this could hurt the team that revolves around Ruto in the United Democratic Alliance (UDA), if the current alignments remain the same. This is because of the likelihood of UDA facing off with a united force of Raila, Musalia Mudavadi (ANC), Kalonzo Musyoka (Wiper), Gideon Moi (Kanu) and Moses Wetang’ula (Ford-Kenya).

This possibility, according to political pundits, is probably the reason why Raila is keen on an expanded Executive and Ruto is for retention of the status quo. In other words, a scenario where all the political bigwigs go it separately is better for the DP.

However, dismissing the proposals on the Executive as “wishful thinking”, Senate Minority Whip Mutula Kilonzo claimed that the CIOC venture was a sheer waste of time: “This is one of the proposals that caused the collapse of BBI. It will not go far.”

This view is shared by a host of constitutional lawyers, including Rarieda MP Otiende Amolo. Going by the High Court and Court of Appeal rulings on BBI, Otiende opines that it is unconstitutional to introduce amendments that could change the basic structure of Constitution.

“The expansion of the Executive and inclusion of members of the Legislature in the Cabinet are bound to be flagged up as developments that ultimately tinker with the structure of the Constitution,” he says.

Noting that next year’s polls will be anchored on the current Constitution, the lawmaker argues that one cannot participate in a poll exercise under one Constitution and exercise power under different legislations.

“And lest we forget, we have a law in place which prohibits us from setting in place governance structures tailored to directly benefit us or serve our interests,” says Otiende, who served as a member of the Committee of Experts, the technical team that reviewed and pieced together the 2010 Constitution.

Nairobi-based lawyer Harun Ndubi attributes the approach by the CIOC to the notion that the BBI exercise was halted because of procedural reasons and not the substance of the BBI document. “This is probably why they want to initiate the changes through Parliament instead of a repeat of the popular initiative route. But this will still flop if we mix up the content,” warns Ndubi.

Until the Supreme Court pronounces itself on the question of “basic structure of the Constitution”, Ndubi advises that it is imprudent to kick off a process that may eventually be declared null and void.

Ndubi separately posits that holding elections on the same day as the referendum is unconstitutional. Noting that efforts to put in place a substantive referendum law are yet to bear fruit, the lawyer warns that such an approach would confuse voters as politicians would manipulate the exercise.

“Why should we congest the August 9 poll exercise, which is already burdened by six ballots? The plausible thing to do is separate the two polls and undertake the referendum later, considering that there is ample time for the same,” reacts Otiende.

But the biggest hurdle for the Kioni team is raising the requisite two-thirds majority of House members to support the proposals. This means the team needs support from at least 233 MPs in accordance with Article 255 of the Constitution. This is not an easy threshold to achieve, considering the hard stances and political rivalry in the House.  

Parliament way

Appointments of a PM and two deputies, argues Otiende, can still be made by the President, but not in the manner and with the influence envisaged in the BBI proposals: “These ones can be appointed provided they are not assigned roles by the President or Parliament that are in conflict with the Constitution. A good example currently is the elevation of Interior Cabinet Secretary (Dr Fred Matiang’i) who chairs Cabinet committee meetings.”

Alive to the impediments ahead, the CIOC appears to have softened its stance on the execution timelines in the draft Bill. According to Kioni, not all proposals are pegged to next year’s polls as some can be implemented thereafter.

Nonetheless, the CIOC boss maintains that the ruling by the courts against the BBI “is bad and unfortunate precedent” which must forever and repeatedly be challenged in court.

“You cannot tell us that we can never change our own Constitution because of concerns of altering its basic structure and other excuses. This is just how the Judiciary is encouraging us to entertain other avenues of change, which I fear could include revolutions,” protests Kioni.

In the meantime, the ODM leader holds that BBI is a good idea but going by the resistance from the courts, the best way forward is to focus on next year’s polls and meticulously make the necessary amendments as directed by the courts. After all, according to Raila, this is an ongoing exercise and not a one-day event.

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