How Supreme Court verdict on BBI will impact August elections


Chief Justice Martha Koome follow proceedings at the Supreme court building on Wednesday, January 19, 2022, during the second day of the BBI appeal case hearing.[Collins Kweyu,Standard]

Irrespective of which way it goes, today’s judgment by the Supreme Court on the fate of the Building Bridges Initiative (BBI) brings back to the political menu the dicey subject that could shape the structure and pace of campaigns ahead of the August 9 elections.

According to Jubilee Party Secretary General Jeremiah Kioni, the return of BBI is “bad news” for Deputy President William Ruto and his allies.

“Whether or not the Supreme Court rules in favour of the initiative, the truth is that BBI is back on the political discourse and we are now going to deal with the facts around it – what we shall get or miss,” he said.

There are seven issues which the seven judges are expected to rule on today, and four of them directly affect BBI, while the others deal with constitutional issues and the question of whether a president can be sued in their private capacity while in office.

Unlike Mr Kioni, Makueni MP Daniel Maanzo was more cautious, arguing that a return of “reggae” - a moniker for BBI - was like the proverbial saw which cuts both ways.

“A favourable ruling may appear like a blessing to those of us in Azimio and One Kenya Alliance, but our rivals can easily twist this to suit their narrative that we are only preoccupied with sharing out top political positions,” said Mr Maanzo with reference to the proposal to expand the Executive and Legislature to include a prime minister and two deputies as well as a leader of the Official Opposition.  

Presidential front-runners William Ruto and Raila Odinga have taken opposing positions on BBI, with today’s judgment expected to hurt one of the two competitors’ campaigns and bolster the other’s depending on which way it goes.

While Mr Odinga has maintained that “reggae is on half time” – meaning BBI has taken a momentary break – Dr Ruto has repeatedly poked holes at the campaign, claiming Kenyans have wasted valuable time and money “dancing to reggae at the expense of executing the Jubilee administration’s Big-Four agenda. This was part of the government pledge to improve food security, affordable housing, manufacturing and healthcare. 

According to Dr Ruto - the Deputy President and UDA presidential nominee - his rivals’ focus is more on sharing out political seats as opposed to service delivery to the people. 

Kericho Senator Aaron Cheruiyot doubted whether BBI would have any political significance now.

“Whichever way it goes, we will be politically just fine. However, as a matter of principle, we still remain opposed to the contentious issues that we have raised publicly, including the appointment of a Judiciary ombudsman by the Executive.”

Critics say giving the Executive power to appoint such an ombudsman erodes judicial independence.

Nominated MP David Ole Sankok said today’s ruling will be inconsequential. Arguing that BBI was an underhand process by President Uhuru Kenyatta and Mr Odinga to elbow out Dr Ruto from ascending to the presidency, Mr Sankok maintained that the BBI question was “history” and that even if the Supreme Court were to revive it, there is no time left for it to be implemented.

Expensive referendum

We in Kenya Kwanza Alliance shall re-bury it once Dr Ruto ascends to power in September. Admittedly, some of the proposals in the document are good and we shall implement them at policy level without necessarily going through the long and expensive referendum route,” he said.

The highest court in the land is expected to deliver its verdict this morning on the BBI appeal filed by Attorney-General Kihara Kariuki and two others. The appellants had challenged the Court of Appeal’s August 20, 2021 decision that threw out BBI, which seeks to initiate changes to the Constitution, including increasing the number of constituencies by 70.

And although the Raila-led Orange Democratic Movement did not appeal the Court of Appeal's decision, the party’s secretary general, Mr Edwin Sifuna, said ODM is nonetheless keen on the progress of the case owing to the national interest in it.  

“We are specifically interested in getting direction from the senior court on how to safely navigate through instituting amendments to the Constitution,” said Mr Sifuna.

Yesterday, his counterpart in the United Democratic Alliance (UDA), Ms Veronicah Maina, similarly expressed her party’s “keen interest” in today’s ruling. Noting that the decision will be a final one, Ms Maina hoped that it would finally clear the air on the way forward with regard to constitutional amendments. 

“As a party, we wanted the reggae music stopped but in the event that it is restored, then we will adapt accordingly. We can choose to dance to the music or just listen to it without making any body movements depending on the extent it has touched or excited us politically,” she said. 

A political scientist, Dr Richard Bosire, said that all political parties will be following closely the events at the Supreme Court today because they have a direct bearing on the electioneering process ahead of the August 9 General Election.    

“If, for instance, the court upholds the earlier judgments, the action will embolden the DP and his UDA fraternity who will confirm to all that they have been vindicated in their stand that BBI was aimed at enhancing selfish interests and that it was not meant for the public good,” said the University of Nairobi lecturer.

However, if the judgment overturns previous verdicts, he said, this will embolden Azimio La Umoja, who, after a series of legal losses, will project the initiative as beneficial to the country.

“Even if the proposals therein will not be implemented now, such a judgment will hand the Raila-led team a political weapon with which to push through to the ballot, with the promise of implementing the BBI once in power,” Dr Bosire said.

BBI proponents are toying with the idea of pushing through a referendum alongside the General Election to enable implementation of some of the proposals, including the clause on the expansion of the Executive.

“We shall only ask the electoral body to present an additional seventh ballot, so we can do it alongside the August poll and in the process save money and time,” said Mr Kioni.  

Pointing out that 27 constituencies risk being phased out from Kenya’s electoral map because of having a relatively low population, and stressing Mt Kenya region’s rallying call for “one-man, one-vote, one-shilling,” Mr Kioni described BBI as a project that must be implemented.

“The only reason I am in Azimio La Umoja and why I am supporting the candidature of Baba (Raila) is because of BBI,” he said.

And while noting that the two-third gender rule will be difficult to realise at the ballot even in the forthcoming polls, Mr Sifuna argued that in the event the Supreme Court gives BBI the green light, ODM will prioritise execution of three main issues; the two-third gender rule aimed at increasing representation of women in Parliament and in other appointments, increased allocation of funds to counties and establishment of the ward fund.

In the event that the judges toss out BBI, Mr Kioni said if Azimio wins, its legislators will make it “the first agenda in the 13th Parliament to return it to the table for discussion and execution.”  

However, Mr Maanzo was pessimistic that the court will overturn the earlier verdicts made by the junior courts.

Mr Maanzo, a lawyer, envisioned legal clean-ups aimed at offering clarity on constitutional amendment “and in particular, amendment by popular initiative as well as the whole question of the basic structure doctrine.”

Before being subjected to the court process, the Independent Electoral and Boundaries Commission had verified 1,140,845 supporting signatures for the BBI referendum Bill on January 19, 2021.  Following the verification, IEBC Chairman Wafula Chebukati submitted the draft Bill to all 47 counties for approval. All except Baringo, Nandi and Elgeyo Marakwet voted in favour of the Bill.


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