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Let us focus on the BBI baby, not the bathwater

By Dennis Kabaara | July 25th 2021

Suna East Mp Junet Mohamed and BBI National Initiative Co-chair Dennis Waweru with BBI steering committee during a press briefing.[David Gichuru,Standard]

In legal circles today, the sub judice rule is facing numerous challenges to its very embodiment – the newspapers having become ‘viewspapers’, as former UK Prime Minister Tony Blair once lamented. 

It is that grey corner of the law that courts have traditionally relied on to restrict undue comment and bias on ongoing cases.

While this means that court opinions are not guided by public comment in our social media age, it also means that the court of public opinion matters.

Take the Building Bridges Initiative (BBI) as an example and let us begin with a quantitative perspective.

Following the Handshake between two political leaders, a publicly funded 14 member task force supported by an equally sized secretariat, translated nine issues into 103 recommendations, 128 proposals and sub-proposals, 167 possible solutions and 365 key actions to fix Kenya.

By this time, there was no constitutional moment, and these read like ideas to better implement our 2010 Constitution.

This was in October 2019, and going by their policy and administrative reform mandate, the task force reported that it had spoken to the “face of Kenya”- 7,000 citizens, 400 elected leaders past and present; prominent local voices from the community, an unquantified number of young people, 123 individuals representing major institutions, 261 individuals and organisations who e-mailed stuff, and 755 people who offered handwritten submissions during county public forums.

From these inputs, the BBI Task Force report offered interesting reform possibilities for Kenya.

Then the ham-fistedness began. The task force became a steering committee in 2020, with the addition of 35 technical experts, eight legislative drafters and a constitutional change mandate. 16 constitutions (including Kenya’s two) were reviewed, 15 struggling constitutional amendment bills were perused, 12 outstanding Parliamentary bills were looked into, 39 existing laws were considered, 14 Supreme Court opinions were mulled over, 31 policy documents were reviewed, 16 Commission of Inquiry and Task Force reports were analysed, and there was still enough time to wade through 53 news articles and opinions.

Sufficient public space was accorded to 19 technical meetings, 7 “delegates” and public meetings each, 93 presentations and 328 further individual and corporate submissions.

From all of these, BBI morphed into 74 constitutional amendments as a single potential “Yes/No” referendum, as well as 12 pieces of legislation, another 12 policy framework suggestions, and 38 recommended administrative “super actions” comprising 163 proposed administrative tasks.

The slim task force that morphed into a fatter steering committee had changed the game.

That public money was expended on this enterprise is without doubt. Add to this the subsequent effort to procure four million voter signatures as well as county assembly and parliamentary affirmation.

By this time, only constitutional amendments mattered; the BBI baby of policy, legislative and administrative reform was about to be thrown out with the bathwater of stealthy katiba change.

By example, the prompt payment, public fundraising, MSME and ethics and integrity bills were gone, as were interesting policy thoughts on issues ranging from our heritage, history and identity to tax policy.

To be honest, the BBI agenda itself represented Kenya’s memory loss. A previous 2008 Handshake following our post-election violence had surfaced the long-term issues Kenya needed to deal with. We called it the National Accord that created a Grand Coalition Government. It worked for the short term. 

A new Constitution was simply one of ten issues that our political ceasefire of the time captured. Beyond a new basic law, we created a compact to deal with the police, parliamentary, judicial, public service and land reforms, youth unemployment, national cohesion, transparency versus impunity and inequality. This was our deal with our political elite. It was the demand side of our social contract with leadership.

Because this task remained incomplete, the Handshake offered us hope that BBI might. Unhappily, process incompetence led our High Court into its now contested judgment. To be clear, public, not private, funds were expended on a process that was judged as unconstitutional, illegal, null and void, with a tad of unfortunate presidential misadventure. On August 20, exactly 354 days before the next General Election, we will learn whether our Court of Appeal agrees with that ruling.

Which brings us to the sadness of this uncertain BBI political experiment. Within its hundreds of pages are proposals that never required constitutional change. Kenya is still a vibrantly transactional country that may one day discover policy leaders. 

Here’s a question that we didn’t hear during the appeal proceedings. Was it the entire BBI process that was annulled or only its constitutional amendment escapade? Would proper public participation legitimise the policy, legal and administrative proposals it offered? These are not questions about the quietly whispered “Plan B” constitutional change through Parliament initiative; they are a call to reflect on the other proposals that BBI leads us to.

We may sample a few. In reading the Constitution as a policy, and therefore political, aspiration for Kenya, a heritage and historical policy reflection was suggested that would be neither a reaction to colonialism, nor a ‘forced marriage’ (which is different from the more unhappy proposal for an ‘official national historian’).  Add to this the proposal for a Kenyan identity (‘A theory of Kenyan-ness’) that builds on the African idea of ‘ubuntu’ (the human idea that I am because you are). 

Throw in policy proposals around lifelong education (excluding the citizen education dogma) or health and wellness, as well as more esoteric ideas around national ethos, responsible citizenship, public participation and unity in diversity plus the stuff that makes us weep daily like access to justice, safety and security, productivity and shared prosperity, combating impunity and, guess what, tax policy (which both the National Treasury and KRA have recently promised in their public pronouncements). 

To the extent that policy prevents bad by promoting good, there were seeds here for useful national conversations and dialogues around strengthening constitutional implementation, or constitutionalism. If there is any shortfall in our implementation of katiba, it is in our reliance on law to promote good by preventing bad at the expense of policy that is its positivist flip side.  We did the laws, we forgot policy. A number of these ideas were recently approved by Cabinet, but the approach is episodic, not systematic.

This is not to say that law is, in and of itself, bad. There is a second part to this view. Some 12 legislative changes were offered. By example, the Public Finance (Amendment) Laws Bill proposes to invalidate borrowing outside an Act or any other written law, more clearly specify the coordinating functions of Parliament’s Budget and Appropriations Committee and clarify offences and liabilities relating to the handling of public moneys by public officers or accounting officers.

It calls for greater due diligence on procurement and ongoing projects, while offering a new grace period to university student loanees and offering tax breaks to youth-owned enterprises. The Prompt Payments Bill seeks expeditious payment of invoices for goods and services procured by public entities, or put differently, the answer to our pending bills problem. The MSME (Amendment) Bill puts new pressure on the MSME Authority to actually support real MSMEs.

The National Economic and Social Economic Council (NESC) Bill embeds the NESC, currently a little unit in the State Department of Planning, in law. The Public Participation Bill legislates public participation. Other proposals not requiring constitutional change strengthen or toughen our electoral, ethics and integrity, anti-corruption and economic crimes and devolution laws.

The one controversy may be in creating a statutory, rather than constitutional, Health Service Commission.

The argument here is not about whether or not these policy and legislative proposals were the right ones. Both the task force and steering committee made it difficult to process their reports by failing to link their ideas clearly and consequentially back to the nine issues they started with. The task force saw issues and came up with some ideas.

The steering committee instrumentalised more ideas without linking them back to the issues. There was no “big picture” statement; from issue, to context, to problem statement, to solution options to change instruments–constitutional, policy, legal or administrative.

That is how the content part of change and reform works. Recall that the High Court essentially ruled on process. They didn’t say “no” to content, they said “not good enough” in process.

Yet, within these policy and legislative proposals, BBI contained more than enough to occupy this 12th Parliament, with appropriate public inputs, for the rest of its remaining term. And it is not beyond the wit of our machinery of government to work through the whole range of administrative proposals as Executive Orders that, with a little more imagination, might even have been factored into the 2021/22 Budget year that started this month.

The tragedy is that BBI may, instead, end up as Kenya’s first ever “digital” white elephant; a publicly-funded exercise in public futility; a project without a project.

With our usual political suspects already busy running around with all manner of political, social and economic proposals to fix Kenya from 2022, and without prejudice to the outcome of the Court of Appeal ruling, could we possibly throw out the BBI baby with the bathwater? Food for contrarian thought.

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