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Delicate balancing act as referendum debate rages

By Protus Onyango | Oct 31st 2020 | 5 min read
BBI Mashinani led by Laikipia Woman Representative Catherine Waruguru. [Standard]

The Building Bridges Initiative (BBI) supporters now face the enormous task of ensuring the report goes to the referendum with most of its proposals, but also accommodate views of those opposing it.

Besides, they have to wade through the succession politics, a weary population plagued by the Covid-19 pandemic, diminishing time and deal with the conundrum of an incomplete electoral commission.

During the Monday launch of the report, Deputy President William Ruto pointed out sections on winner-takes-it-all, gender and composition of the Executive and reforming the Independent Electoral and Boundaries Commission (IEBC) as provisions he is not happy with.

But President Uhuru Kenyatta and ODM leader Raila Odinga hailed the document and welcomed those with different opinions to read it and suggest ways to make it better.

The launch has given room for the drafting of Bills and plans by Parliament on how to proceed with implementing what is contained in the report.

Indeed, senators have been in Naivasha where 13 Bills to help implementation of some of the BBI recommendations were discussed.

Senate Majority Whip Irungu Kang’ata said their meeting will come up with a plan on ensuring the report sails through.

“There are legislative proposals in the BBI, such as the ward development fund, which were already tabled in Parliament and this gives us easy time when they come up again for debate,” said the Murang’a senator.

National Assembly Majority Leader Amos Kimunya said MPs are ready to deal with the implementation of the report.

“We have to move forward as there is no way that all Kenyans can agree on a single point. What we need is consensus and this we have. Our duty then is to ensure BBI report sees the light of day,” Kimunya said.

National Assembly Minority Leader John Mbadi said the National Assembly leadership had called for a meeting to agree on the implementation plan of all the Bills.

“We must however be careful as Parliament not to completely water down the Constitution while making changes through the amendments but this is a good document that has little opposition and will pass,” said the Suba South MP.

Purely presidential

The BBI task force also drafted the Constitution of Kenya (Amendment Bill) 2020 that seeks to change the system of government from a purely presidential to a hybrid arrangement that will see reintroduction of the post of official opposition leader.

The Bill also seeks to have Cabinet ministers appointed from among members of the National Assembly, as well as increase the allocation to counties from a basis of 15 to 35 per cent, among others.

Prof Adams Oloo, deputy chair of the BBI task force, said there is still room for improving on what Kenyans find unsuitable.

“We compiled our report after listening to Kenyans who made their presentations as individuals or members of organisations. What is required now is not a blanket dismissal of the report but suggestions on what Kenyans think is contentious,” he said.

Elgeyo Marakwet Senator Kipchumba Murkomen, an ally of Ruto, has poured cold water on the report.

“BBI Constitutional Amendment Bill 2020 is very good for presidential candidates, especially the front runners, but very bad for stability of the country. It creates an imperial president, unstable Executive and expensive governance structure. In the end politicians gain but the people lose,” Murkomen said.

However, Mbadi disagrees, saying the recommendations actually reduce the cost of governance.

“We are saving money by having Cabinet Secretaries who are on the payroll of Parliament as opposed to the current situation where they are none MPs. The proposed structure is similar to what we have now,” he said.

Mbadi said the proposed structure of president, deputy president, prime minister and two deputy prime ministers is similar to the current one of president, deputy president, National Assembly majority leader, deputy majority leader and majority whip.

Makueni Senator Mutula Kilonzo Jnr said there are inconsistencies in the BBI report that should be addressed.

“Truth be told. I have marked several inconsistencies and contentious issues in the Constitutional Amendment Bill 2020. The proposed retreat of Parliament and its leadership should navigate these matters with an open mind,” Mutula Jnr said.

He called for consensus among Kenyans so that the process is inclusive.

“We need to know the implementation matrix so that we tell the time required. This was an oversight on the task force because they failed to tell us when the Bills should be brought to Parliament. We need time to come up with referendum questions,” Mutula Jnr said.

Constitutional lawyer Bobby Mkangi, who was a member of the Committee of Experts (CoE) that drafted the 2010 Constitution, called for dialogue from the opposing sides so that the document is seen as more representative of the population.

Many opinions

“This is a critical document where those dissenting and supporting need to come together to try and accommodate as many opinions as possible. This will address the divisive and extreme positions being witnessed now,” Mkangi said.

Lawyer Charles Kanjama also called on Uhuru, Raila and their supporters on the one hand and Ruto and his allies on the other, to work towards a compromise.

“Let me hope this is not the final draft. Let us be told if Kenyans still have room to air their views on making the document better,” he said.

Political analyst Egara Kabaji of Masinde Muliro University of Science and Technology (MMUST) called on those opposed to the report to offer alternative solutions.

“So far, Ruto and team only raised what they are not happy with. They should now come up with solutions to the problems they have identified. If they don’t, then they should let the process continue because it means they are playing politics. They should come up with a cure for the gaps they are talking about,” Prof Kabaji said.

Prof Macharia Munene, who teaches history at the United States International University (USIU), said there is no opposition to the document, only gaps identified, which should be addressed.

“Both proponents and opponents agree this is a good document. However, they have their doubts. There is need to discuss the contradictions so that there is agreement across the board rather than rushing the process,” he said.

Morris Odhiambo of the National Civil Society Congress, working under the Referendum Debate Platform (REDEP), said creating structures and elevating others do not solve the ills facing the country.

More inclusive

“The Independent Policing Oversight Authority (IPOA) cannot achieve more by being turned into a commission. Some provisions are superfluous and Kenyans need civic education for eight or 12 months to understand the report,” Odhiambo said.

Ndung’u Wainaina of the International Centre for Policy and Conflict (ICPC) called for a democratic, legitimate, people-driven, participatory, structured process.

“Constitutional devolution gave Kenyans more inclusive participatory democracy. Constitutional public finance gave Kenyans tools for achieving equal society through public expenditure and resource sharing for equitable development and realising constitutional social and economic rights,” Wainaina said.

He added that the net result is more inclusive democracy, economic democracy and accountable leadership based on different values.

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