Ruto-Raila talks may be headed the BBI way

Then-DP Wiliam Ruto (left), ODM leader Raila Odinga and ex-president Uhuru Kenyatta exit the Bomas of Kenya after the launch of the BBI report, October 26, 2020. [Stafford Ondego, Standard]

Kenya could be heading to a referendum, less than two years after the Building Bridges Initiative (BBI).

A number of proposals submitted to the National Dialogue Committee that is collecting views at the Bomas of Kenya touch on articles that will require a referendum for them to be achieved.

Created by President William Ruto and Azimio leader Raila Odinga in July, the committee led by National Assembly Majority Leader Kamau Ichungw’ah and Wiper leader Kalonzo Musyoka has been holding talks for the last three weeks.

In 2021, the BBI initiative, birthed by Raila and President Uhuru Kenyatta after their famous handshake, proposed a number of Acts to be changed through a plebiscite.

The initiative was later thwarted by the courts after the majority of the judges at the High Court, Court of Appeal and the Supreme Court.

The Bomas committee, formed after talks between Ruto and Raila in Mombasa organised by the former Nigeria President Olusegun Obasanjo following a spate of violent street protests, is preparing the ground for a constitutional change.

The talks have grown into a process similar to the BBI.

According to a constitutional lawyer Bobby Mkangi, the committee will have to write a report and give the direction of the route to be taken to achieve its proposals.

“There has to be a clear route to referendum that it is either through a popular initiative or a parliamentary process. It depends on what the committee will be required to do when they complete their process. Will they take as a Bill that will them travel the referendum way or will they seek signatures for the proposals to go to the people?” he says.

One of the presentations by a group of elders seeks the creation of a county. A similar proposal has been presented by a group of MPs who are pushing for an increase of 11 counties from the current 47.

On Friday, Nandi Senator Samson Cherargei presented a proposal seeking to increase the term limit of the president from five years to seven.

On Tuesday, the Law Society of Kenya President Eric Theuri suggested the introduction of staggered elections for various seats.

“Is it time to amend the Constitution so that the elections are not held at the same time? Would there be considerable merit in separating the terms on when elections can be done? It makes it extremely difficult to conduct six elections at the same time,” he said.

Prior to the beginning of the process, Kenya Kwanza and Azimio coalitions had agreed on a number of issues. Among other issues, Azimio is proposing the creation of the prime minister’s office as opposed to Kenya Kwanza’s prime cabinet Secretary office.

The committee has since changed its initial stance and has gone ahead to welcome presentations that would be presented before Monday, and retreat to write their report.

Mkangi says calls to increase counties, the creation of the office of the prime minister, the office of the leader of the opposition and the change of the president’s term limit require a referendum.

“Those issues cannot be changed without a referendum. Articles 255, 256 and 257 on the President’s term limits and Article 188 on the counties must find a way into the ballot before they are changed. There is no shortcut about it, even the official opposition leader’s position if the seat was to be given substantial power,” says the lawyer.

However, some groups are against the push for a referendum. Priscilla Nyokabi, presenting on behalf of the Centre for Multiparty and Democracy, yesterday argued that the realisation of the proposals did not necessitate a referendum.

“We do not support a referendum. We support amendments that continue the work of implementation of the 2010 Constitution, amendments that strengthen our political parties and our democratic culture. I don’t think we are in any place now to go into a referendum. We have tried that referendum experiment every middle of an election term and it is costing us and our economy.”

Mkenya Daima, a lobby group, also challenged the entrenching of the positions of office of the leader of the opposition and that of prime cabinet secretary in the Constitution.

“We know referendums will always be divisive one way or another. We have serious economic issues. So, if we want to address the cost of living, that should be our top priority,” said Mucai Kunyiha.