Since the launch of the Building Bridges Initiative (BBI) report, a few but critical issues have been clarified on what Uhuru Kenyatta and Raila Odinga’s plans are in shepherding the next phase of BBI. One, they have confirmed that BBI will go through the popular initiative and not the parliamentary amendment process. Two, they have unequivocally stated that the period of consultation on BBI has ended, so what is left is to walk the proposed amendments through the popular initiative process to the referendum.
Their proposals on how they will process the BBI amendments are problematic. The Constitution created two pathways for constitutional amendments. The parliamentary and the popular initiative. The parliamentary process essentially requires a Member of Parliament to table a constitutional amendment Bill in Parliament in the same way a statutory Bill is tabled. However, a constitutional amendment Bill that is based on a parliamentary process must garner at least two-thirds support from parliamentarians at the second and third readings for it to pass, even if it involves issues that require a referendum.
But the Constitution also provides for a popular initiative process. Essentially any person, in their private capacity, can initiate an amendment through a popular initiative. The Constitution provided this pathway as it was aware that citizens may desire certain changes to the Constitution that their representatives – the MPs - may not be too enthusiastic about. It, therefore, made sure that people’s fate to change the Constitution did not hinge exclusively on the willingness of their MPs to initiate amendments.
Think about it – if, for example, the people wanted a constitutional amendment that caps salaries of Members of Parliament or indexes it to a percentage of the gazetted minimum wage, it is almost impossible for MPs to initiate such amendments, leave alone vote for them. Another example: If people desired to have a constitutional amendment that outlaws the hefty perks that MPs get through committee allowances or unnecessary trips abroad in the name of benchmarking, it is unlikely MPs would support such amendment.
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However, to make sure that people did not misuse the popular initiative route of amending the Constitution, the supreme law created an initial onerous process for the sponsor of the amendment to surmount. This initial process requires the collection of one million signatures from voters who support the Bill. It is only after the sponsor has managed to get the one million signatures - through use of his or her own resources - that the formal process is initiated and public money can be used to support the amendment process. The first formal step is the verification by IEBC of the signatures before forwarding the amendment proposals to county assemblies.
So far, BBI is a private affair, which says a lot about it. First, Uhuru and Raila in creating BBI as a vehicle to amend the Constitution through a popular initiative and supporting it through public resources – estimated to be in billions - have abused power and the popular initiative process.
And this is why BBI is both illegal and unfair. Other Kenyans have attempted to amend the Constitution through a popular initiative, among them, Ekuru Aukot through the Thirdway Alliance. Similarly, Okiya Omtatah also has a draft constitutional amendment bill he hopes to push through the popular initiative.
Thirdway had to privately find resources to support its Punguza Mzigo amendment proposals and impressively managed to collect and have IEBC verify its one million signatures. Impressive because Raila Odinga with the entire NASA Coalition had failed, in 2015, to collect the one million signatures needed to initiate their Okoa Kenya popular initiative.
There is another illegality and unfairness in Uhuru using the popular initiative on BBI amendments. Both Uhuru and Raila have (and control) many MPs in Parliament, which gives them direct access to a legal and less expensive option of amending the Constitution through the parliamentary initiative process, an option that was not available to Thirdway Alliance. Essentially, through BBI, Uhuru and Raila have stolen the amendment tool the Constitution gave to the people and are making the public pay heavily for their loot.
The Constitution strongly emphasises public participation. At the top of the hierarchy of things that require genuine, adequate and broad public consultation are any proposals to amend the Constitution. This is because changes to the Constitution are meant to be enduring – and at times even intended for eternity. Moreover, the 2010 constitution was created through a very long participatory process. It is only fair that if it has to be amended, the people – not just the ruling political elite and their relatives – be accorded sufficient and genuine opportunity to offer their views.
Importantly, neither Uhuru nor Raila have the legal power to decree that amendment proposals through BBI will not go through further consultation. The law on the constitution amendment is that both county assemblies and Parliament have a mandatory obligation to genuinely consult and incorporate the views of the public when considering BBI proposals.
An emphasis is important before I end: The journey walked by BBI as a vehicle to effect constitutional amendment through the popular initiative is – this far - a private one, mostly illegal and therefore constitutionally inconsequential. The true and legal process will only start when BBI presents its proposal for amendment and the supporting signatures to IEBC.
The symbolism of presentation of BBI proposal to IEBC will be to convert what is now a private initiative to a public issue, that should be strictly regulated by the Constitution onwards. A critical part of that formal journey by BBI –and way before any referendum (assuming there will be one) - will be to gather public views on how much, if at all, of what Raila and Uhuru propose should see the light of day.
Mr Waikwa is a constitutional lawyer. @waikwawanyoike