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Political storm ahead as Uhuru seeks to assert command

By Special Correspondent | May 24th 2021
President Uhuru Kenyatta arrives at Thika Barracks in Kiambu County to preside over the launch of assorted Kenya Defence Forces (KDF) operational and engineering vehicles and machinery. [Courtesy]

It has been a political season like none for President Uhuru Kenyatta.

The president has found himself caught between the deep waters of the Judiciary and in the soggy mires of the murky politics. A mortifying ruling on the BBI Bill which was followed swiftly by electoral defeats for his wing of the Jubilee Party in Bonchari and Juja Constituencies, and in Rurii Ward in Nyandarua, have left him in a field choked with political thorns and thistles.  

Are the political good times slipping through President Uhuru’s fingers? Is he entering his sitting duck season? In the fog of the bright season’s end, every incumbent-in-chief comes to terms with reality.

They reckon with the truth that nothing lasts forever, least of all political command. They recognize that they increasingly represent the past, while potential new captains represent the future. Loyalties shift from the present to the future. The incumbents must adjust their sails, with everyone else.  

At the time when he should have been buoyed up by overwhelming support for the BBI Bill in the two houses of Parliament and in 42 out of 47 County Assemblies, he took the first blow when the High Court declared the Bill unconstitutional. The five-judge bench unanimously presented 21 grounds to throw out the Bill.

The president and his Handshake partner, ODM Leader Raila Odinga, must overturn each of these grounds in a higher court, if they want to restore BBI to the railroad. Pundits have observed that if even only one ground stands, BBI will be as dead as a dodo.  

The anxiety and confusion in the president’s camp has been evident in the flipflopping on the way forward in the Attorney General’s office.

Clearly, no upfront scenario building had been done in the AG’s Office, regarding the consolidated Case No E282 of 2020 on the Constitution of Kenya (Amendment) Bill 2020. Hence the court determination descended on AG Paul Kihara and his top legal minds like a ton of bricks. The kneejerk response was to apply for stay orders.  

Hardly had they received the date when the same court must determine whether to stay the orders or not, when they swiftly rescinded their application. They now want the Court of Appeal to stay the orders and overturn the verdict in case.

They have placed President Uhuru in a legal and political quagmire. How does he navigate the matter through an overstretched Court of Appeal on a matter that has no statutory timeline? If the appeal should advance ahead of older matters that have been scheduled for as late as 2023, it could leave the blot of political impropriety on the courts.  

The appeal, especially, places Chief Justice Martha Koome in an awkward place. At the interviews for her new job, her detractors cast aspersions at her suitability for the CJ’s office. They questioned her decision to overturn in the Appeal Court, a High Court ruling that would have thrown into the doldrums the repeat Presidential Election of October 2017, and the country into a constitutional gridlock. She has averred that her intervention at an irregular hour for a court sitting was for the country’s benefit.  

However, there are still doubting Toms. They will be watching how Koome hoists the sails on her new tour of duty. At 61, Kenya’s new CJ has nine years ahead of her at the helm of the Judiciary. She may need to be sensible to the impressions that mark the start of her journey in one of Kenya’s hottest seats.

She might just want to let judicial processes take their natural flows and rhythms, especially now that she needs no further endorsements from anywhere. Koome also embarks on this journey with the knowledge, to boot, that the President is on the last legs of his tenure. 

President Uhuru Kenyatta arrives at Thika Barracks in Kiambu County to preside over the launch of assorted Kenya Defence Forces (KDF) operational and engineering vehicles and machinery. [Courtesy]

So where does all this leave President Kenyatta and his legal and political options? Certainly, between a rock and a hard place.

The BBI was touted as his big gift to future generations. He held equal shares in this, with Raila. With BBI now in stagnation, the president must worry about the fate of his postponed legacy. If it appears to be bulldozed through the legal system, it could add premium to the perception that he is the national CEO who has distinguished himself for doing extra-legal things, or at any rate doing things extra-legally.

His confluence with the law will certainly make for a significant chapter in the story of his tenure as Kenya’s National Chief Executive Officer. With a rich catalogue of what is often seen as holding the law in contempt, President Uhuru may need to think through the management of the BBI in the legal corridors and the perceptions that will last longest. This, he must balance with his political interests as well as family priorities. 

For a start, as he reflects on what next for BBI, the president may want to take a candid look around him. Who are his minders and counsellors? What has been their value this far? What premium is there, both in his formal and informal governments? Former President Daniel Moi once famously said that in politics, there is always need to distinguish between leadership and friendship. Some people can be your friends, but they do not have leadership abilities and qualities, he had quipped.

Do the friends who sit with Uhuru add value to his rule? Is it about time he did a thorough overhaul? Some of the people believed to be his advisers have posted on social media platforms that government is a criminal enterprise. The posts seemed to urge the president to ignore the law, while imputing negatively on the counsel such sources place before the head of state. Other cronies of Uhuru have riled at the High Court Judges, breathing fire and brimstones at them over the judgement.  

And Jubilee Secretary General, Raphael Tuju, has warned the Judiciary of a possibility that the Executive could expose judges to personal harm, if they should continue to make independent judgement.

“They should also learn the word interdependence, because as soon as they finish the ruling, they need the police to escort them home as guards, drivers and so forth.” The veiled innuendo is hard to misinterpret. 

There is the possibility that the President could eat humble pie and drop the court route. In this case, he may want to get informed advice on what parts of the BBI Bill could be salvaged, if the Bill were to be sufficiently revisited, spruced up and taken to Parliament as a fresh item, under Article 256 of the Constitution.

But now he must reckon with the reality of the Bill having to wait for a period of 90 days between the First Reading and the Second Reading, in line with Article 256(1)c of the Constitution. He will have to come to terms with the race against time to the next General Election. 

One grave matter remains, however. The court found that the president had breached the Constitution and especially Chapter Six, on leadership and integrity. Whichever way the President and the wise people around him decide, the Chapter Six question must be confronted and rested. 

All this boils down to the need for moral and political suasion, and even clout, in a fading season. And yet if there are any thorns and thistles in Uhuru’s political garden, they thrive most in his backyard of Central Kenya. His discomfort abounds most where he should be most comfortable – at home.

The electoral defeat in the Juja byelection speaks of power slippage, if not of lost power. Juja, where the People’s Empowerment Party (PEP) candidate, allied to Deputy President William Ruto, trounced Uhuru’s Jubilee Party, is  not just next to the president’s home in Gatundu South, it is his home. It is in his Kiambu Home County. His family has significant business presence here.

And in a gone age, his half-brother, the late Peter Muigai Kenyatta, was the area MP (1974-1979. An electoral defeat here is as mortifying as it gets. Next is the forthcoming byelection in Kiambaa. Uhuru must pull all stops to bag the seat for Jubilee or suffer further loss of clout.  

But there have been also other defeats, fronted by the President’s own MP, Moses Kuria. Apart from being one of DP Ruto’s most ardent supporters in a season when Ruto and Uhuru have transformed from friends to political foes, Kuria has his own local axes to grind.

The floundering BBI agenda has the unspoken component of running a member of the Kenyatta family for the Gatundu South seat next year, with the possibility that the person could become Kenya’s third Prime Minister in an expanded BBI Executive. This leaves Kuria few options. He must fight for his political skin.  

In the long run, Uhuru needs a sedate retirement from the centre of politics. He does not want litigants fencing him on both real and imagined offenses against them and against the state.

He wants, also, to secure the family’s business interests. And he wants the Kenyatta family to make another comeback into the political space, possibly with a member of another generation, at a later time than 2022.  

To achieve all this, Uhuru must himself have a safe passage from the centre of power and a sedate period for his entire family in the immediate aftermath of his rule. Even mending of fences with his deputy may not be off the cards. It is a heavy assignment against the run of time, 14 months to the final whistle.  

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