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BBI: Supreme Court verdict to change political pacts, landscape

Former Prime Minister Raila Odinga appends his signature during the launch of the collection of signatures for the Building Bridges Initiative (BBI) at KICC in Nairobi on November 25, 2020. [Stafford Ondego, Standard]

Kenya is at a political crossroads as the Supreme Court prepares its verdict on application that seeks to overturn Court of Appeal ruling against the Building Bridges Initiative.

Whatever decision the top court makes on the Building Bridges Initiative (BBI), it will have a significant effect on the political landscape -- careers will be made or broken and alliances on thin ice will find solid footing.

Nonetheless, Kenyans remain in the dark as to when Chief Justice Martha Koome and the bench comprising Deputy Chief Justice Philomena Mwilu, Justices Isaac Lenaola, Smokin Wanjala, William Ouko, Njoki Ndung’u and Mohammed Ibrahim will deliver the judgment.

The High Court last year halted President Uhuru Kenyatta and ODM leader Raila Odinga’s plan to amend the 2010 Constitution.

Some of the proposals included expanding the Executive by introducing the positions of Prime Minister and two deputies. 

The Court of Appeal upheld the ruling nullifying BBI, further dealing a blow to the initiative. 

The Attorney-General v David Ndii and Others, also known as “the BBI Case," was heard before the seven-judge bench of the Supreme Court in January and the verdict is expected soon.

A lot is hinging on what the court decides, especially for Deputy President William Ruto and Raila, the leading presidential race contenders.

The ODM leader transformed the BBI from an impediment to his political career to Azimio la Umoja Movement which has become his political vehicle.

Ruto, on the other hand, has reveled in the defeat of the initiative he opposed and has built his campaign around the idea that Raila and Uhuru were intent on seeing the BBI through to dish out Executive positions to the elite.

Obviously, political analyst Herman Manyora said, a positive verdict would empower Raila and Uhuru's Azimio la Umoja Movement, specifically in alliance building.

He said that such a ruling would be the factor that prods Kalonzo to support Raila again.

“We know that he will eventually end up with Raila but the ruling brings them together much faster,” he said.

It might persuade potential partners who are on the fence to join Azimio, especially those in One Kenya Alliance.

The expanded Executive that BBI promises would increase the allure of the Azimio la Umoja Movement as well as the Kenya Kwanza Alliance which will have chips to bargain with as they build their alliance, he said.

It would be easier for Kalonzo if he will tell his people that “we are coming together and we will push for the BBI and I will become Prime Minister.”

But his opinion is that it would be a double-edged sword for Ruto.

“Ruto's reaction to the High Court and Court of Appeal rulings show that it was a victory for them when the court stopped the process. If the Supreme Court overturns that judgment, it would mean that Uhuru and Raila have had the last laugh which is not good for him,” Manyora said.

But he said that in the same way, a positive verdict would give Raila something to attract allies, it would have the same effect on Ruto.

If the Supreme Court overturns the ruling, it will be a win for Kenya Kwanza as it will offer positions to attract more coalition partners.

It could also present Ruto with an advantage in negotiations with his coalition mates since he would have more to offer to the regions such as Mt Kenya.

ANC leader Musalia Mudavadi can give concessions now and Ruto can ask for votes from Western while telling them that their man would be Prime Minister, Manyora said.

But legal experts are wary of the rife speculation on social media regarding the direction the court will take. 

Lawyer Ahmednassir Abdullahi has speculated that the court would toss out the basic structure doctrine after which Parliament could amend the Constitution and create the offices of Prime Minister and the two deputies.

Ahmednassir's tweet prompted a response from lawyer Nelson Havi, who is allied to DP Ruto and is running for Westlands MP seat.

Havi said if it was true “it will be confirmation that the Supreme Court has failed in its role to determine matters before it without interference from the Executive."

Lawyer Charles Kanjama said such comments were sub-judice. He however said that he was confident that should the court decide that the process continues, the election timeline was protected.

"It would be impractical to think that a referendum will happen before the election.

"The electoral body is already preparing for the election and we are within the six-month window. It would be impossible to amend the Constitution before the election," he said.

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