How new push to change constitution echoes the flopped BBI initiative

Former President Uhuru Kenyatta and Raila Odinga sign a form during the BBI launch at the KICC in Nairobi in November 2020. [PPS]

To change, or not to change, the Constitution? A question that gripped the public’s imagination before appearing to be dead and buried with the failure of the Building Bridges Initiative (BBI) is once again making waves.

Recent proposals to amend the supreme law mirror several attempts that were made to change the independence constitution, which led to promulgation of the 2010 Constitution.

This year alone, there have been four attempts to amend the Constitution, including the flopped BBI that proposed a raft of changes to the country’s leadership structure.

There was a proposal by Fafi MP Salah Yakub (United Democratic Alliance) to remove the two-term presidential limit, which elicited a public backlash.

ODM leader Raila Odinga has also been vocal in recent days about the need for reforms to strengthen public institutions.

Among those leading the charge to amend the Constitution include Kuria East MP Marwa Kitayama who has sponsored a Bill seeking to create five additional counties. This, according to Mr Marwa, will ensure that minority groups get a chance to manage their resources.

The Constitution has provisions for 47 counties but should Mr Marwa’s proposal sail through, Kuria, Teso, East Pokot, Mwingi and Mount Elgon will be among the new devolved regions.

And now, barely a week after National Assembly’s Public Petitions Committee began processing a petition by Victor Okul, a voter, seeking to alter the leadership structure by introducing the posts of prime minister, deputy prime minister and leader of opposition, a different Bill sponsored by university scholar Fred Ogolla is also in the offing.

Mr Okul argues that the winner-take-all system is regressive and has been responsible for our divisive presidential elections, hence the need to introduce the new offices.

Kuria East MP Marwa Kitayama. [File, Standard]

Kesses MP Julius Rutto said the country was “facing a challenge” with the Constitution and that debate on whether or not the three offices should be created should be decided in a referendum.

“On the majority side, we came in promising not to expand the government. So we need to listen and take time on this and understand the petitioner. What point is he trying to drive home?” Mr Rutto said.

Mr Okul also seeks to alter the order of precedence observed in the National Assembly to that of Speaker, prime minister, and leader of opposition.  

The creation of the PM post was also contained in the BBI proposals as part of efforts to expand the Executive and address the winner-take-all issue.

Mr Ogolla has drafted a Bill seeking to bar a deputy president from contesting for the presidency immediately after serving two terms.

The Constitution of Kenya 2010 (Amendment) Bill, 2022, is also pushing for creation of the post of opposition leader in the National Assembly.

The position will be held by the presidential candidate who comes second in a General Election, and whose political party or coalition of parties has at least 25 per cent of elected members.

The proposal is part of efforts to entrench the status of the opposition in law.

Under the banner “Operation Linda Ugatuzi”, the new Bill seeks to alter the structure of the Executive, devolved units as well as strengthening the Independent Electoral and Boundaries Commission.

Although Mr Ogolla claims the opposition has no hand in his initiative, some components of the Bill have borrowed snippets from the flopped BBI.

“The window for reviewing the Constitution is already up and it is important to look at some issues through a popular initiative,” he said.

But observers believe these new initiatives face a tough task becoming reality.

 Fafi MP Salah Yakub.  [Jonah Onyango, Standard]

Violate the law

Waikwa Wanyoike, a constitutional lawyer and a political commentator, told The Standard that some of the proposed amendments violate the law.

“Most of the attempts that have been made to change the Constitution are not aimed at strengthening the Constitution because they are only targeting self-serving interests,” he said.

According to the analyst, the attempts are politically driven aimed at controlling and capturing power, and stand little chance of success because of how they are drafted.

“The proposals to bar parties from nominating a governor and a senator in the same county, for instance, violate the spirit of multi-party democracy,” said Mr Wanyoike.

Clifford Otieno, another constitutional lawyer, however, says that some of the proposals deserve consideration because they seek to strengthen governance.

“The proposal to bar deputy presidents from succeeding their bosses immediately after serving two terms can help improve service delivery. You will find that deputy presidents are more preoccupied with planning how to succeed their bosses,” said Mr Otieno.

The analysts believe the proposals must be put to the test in a referendum due to the rigidity of the Constitution, which means they will follow the BBI path and not the parliamentary route.

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