Back to drawing board for top politicians as elections beckon

Court of Appeal Judges from left to right Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyott at the Supreme court building on Friday, August 20, 2021, during the ruling of the BBI appeal case. [Collins Kweyu, Standard]

The die is cast on the Building Bridges Initiative (BBI) after yesterday's judgement by the Court of Appeal, and the political implication will be reverberating.     

The judgement throwing out the BBI appeal will shape the country's political landscape going forward, and will likely be the backbone on which key political figures will anchor their pre-election pacts and alliances.

The seven-judge bench threw the political scene into a frenzy, with all the seven key political bigwigs sent back to the drawing board.

Coming 11 months to the General Election on August 9, 2022, the verdict will define political realignments.

Court of Appeal president Daniel Musinga, Justices Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott, in a majority decision, upheld the High Court's judgement that declared the BBI unconstitutional, null and void. 

The BBI Bill had proposed changes on 78 pieces of law that included expansion of the Executive, increasing the number of members of the National Assembly by 70 and increasing allocation of county funds from 15 per cent to 35 per cent.

The three proposals have been a hot political potato.

President Uhuru Kenyatta, ODM leader Raila Odinga, One Kenya Alliance (OKA) leaders Kalonzo Musyoka (Wiper), Musalia Mudavadi (ANC), Gideon Moi (Kanu) and Moses Wetang'ula of Ford-Kenya have engaged a high gear in succession politics.

Uhuru has hosted Raila three times in Mombasa, twice met with OKA leaders, where succession politics was discussed devoid of the BBI equation. The President and his new allies will now have a clear picture on the future.

The route of the Supreme Court, coming less than a year to the elections, is not feasible, as it is not logically possible to have the judgement made and components of the BBI incorporated into law before the polls.

Raila on Tuesday unveiled his political roadmap in a meeting with Mt Kenya leaders in Nakuru. Previously, he had insisted that he would not engage in 2022 politics until the judgement on BBI.

But on Wednesday, he said he would not move to the Supreme Court should the Court of Appeal rule against the push to amend the Constitution.

Speaking on Radio Nam Lolwe, Raila said his focus was on 2022 General Election, and that he would revisit the BBI after Kenyans go to the ballot, indicating that he had already moved on, ready for the verdict.

“We will not move to the Supreme Court if the court dismisses BBI. Our focus now is on elections, but we will come back for BBI after elections,” said Raila, whose handshake with the President birthed the BBI process after the divisive 2017 presidential polls.

The pronouncement by Raila now points to a decision by the proponents not to let the BBI factor influence succession politics.

Deputy President William Ruto has been opposed to BBI, saying it has derailed government agenda. In Dr Ruto's circles, it was party time, given they believed expansion of the Executive, alongside other changes, would have put roadblocks in his push to succeed Uhuru.

Had the court allowed the BBI Bill to go through, Ruto's team would have had an opportunity to move to the Supreme Court, albeit through proxies.

Ruto ally and Tharaka Nithi Senator Kithure Kindiki commended Raila for seeing the light in what he called BBI shenanigans.

“No court of law in Kenya or regionally can resuscitate the BBI after the judgement delivered by the High Court in June. It is legally irredeemable. Raila's remarks that he would not move to the Supreme Court if the judgement of the appellate court is not in his favour shows he has accepted the BBI fate on Friday,” said Prof Kindiki.

He argued that Raila's plan to revisit BBI after the elections would amount to nothing if the proposals remain the same. "Let me give him free legal advice: The future endeavour will only sail through if the sponsors change the context and the procedural hygiene," said Kindiki.