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Could Raila-Ruto talks suffer same misfortune as BBI?

**Azimio bipartisan talks leader Kalonzo Musyoka and his Kenya Kwanza counterpart Kimani Ichug'wah display signed agreements ahead of negotiations at the Bomas of Kenya.** [Dennis Kavisu, Standard]

If there is one thing that crystallised the hustler voting base in the 2022 elections, then it was the doomed Building Bridges Initiative (BBI).

The humiliation President William Ruto suffered at Bomas of Kenya will remain in the minds of many of his supporters for a long time to come.

The question at hand to the nation today, as it was then, is whether this is a constitutional or an economic moment. Could we be living through the metaphor of ‘different forests, same monkeys’?

However, many questions remain unanswered for a curious mind. For instance, what has changed in the last 11 months to bring about a constitutional ‘Damascus moment’ for the Kenya Kwanza top political leadership? Whose interest do these amendments serve? Is it truly about ‘Wanjiku’ and the advancement of our democratic space? Does the convergence of political interest clear all the roadblocks to amend the Constitution?

Before anyone brands me an enemy of progress, let us put the rationale for bipartisanship into context.

Contestations

A casual Google search of the term ‘bipartisan’ will demonstrate how widely the concept has been applied across jurisdictions and over diverse subjects. It seems to be synonymous with democracy over the past three decades.

The force behind bipartisanships is the polarisation that characterises modern democracies and society in general. It seems greed for power and self-interest drive modern democracy and not the greater societal good. Thomas H. Kean, a confessed moderate for many years in American politics, advocates for bipartisanship in an article posted on the Carnegie Trust website on 23rd December 2022.

He argues that the lack of election of pragmatic and good leaders is a reflection of an absence of civility in the general population.

In the Kenyan context, potentially good men and women are eliminated long before official nomination for elective positions for lack of pledging blind loyalty to tribal lords or at the altar of bribes and other freebies to the electorates. Thus, the choices available on the ballot, as was in the 2022 presidential election, narrow down to a choice between being eaten by a fox or a hyena, as Barrack Muluka puts it.

Bipartisan thus implies efforts intended to produce outcomes that can stand the test of time and better serves public interest. A bipartisan committee report on a defence policy by the Australian Parliament highlights interesting insights into the benefits and risks of this approach.

Notable benefits to bipartisan approaches include outcomes that transcend party politics; provide long-term strategic and policy stability that may encourage investment, improve productivity and lower costs; and strengthen collaborations on matters of national and public interest.

On the contra-side, bipartisan approaches may operate as a process of uninformed concurrence that limits debate and discussion on the matter in question; it is debatable as to whether bipartisanship improves processes or leads to achievement of desired outcomes; that perceived benefits of bipartisanship of good policies, building national unity and protection of rights is undermined by the very nature of how bipartisan process operates; bipartisan processes are vulnerable to sectarian political interest; and lack of sufficient evidence that disagreements among political parties is the source of disruptions.

With this in mind, it is now analytically safe to render an objective examination of the issues at play for ordinary folks to form their opinions from an informed point of view.

Minefields

Setting aside political emotions, the weakest link for the bipartisan team is their very own agenda. The details on the broad five thematic areas on: outstanding constitutional matters, electoral justice, entrenching funds into the Constitution, establishment of State offices, and fidelity to political parties/coalitions and the law on multi-party democracy lacks specificity at best and propagates selfish political leadership at worst.

In theory, there is nothing wrong aligning the supreme law of the land to the present socio-economic and political realities, and our aspirations of the future. However, such an agenda cannot be pursued to serve immediate greed for power or as a panacea for leadership failures to implement the Constitution itself.

For instance, this past week coincides with the 13th anniversary since the promulgation of the Constitution on 27th August 2010. Article 43 of the Constitution obligates the State to guarantee basic economic freedom and social rights for every citizen up to at least some reasonable level. The fact that a majority of the citizens have no access to these constitutionally guaranteed rights speaks of leadership failures.

Similarly, the question of inclusivity, non-discrimination in public appointments and expected ethical conduct for public officials is generously and unambiguously guaranteed in Article 10 and Chapter 13 of the Constitution. This spirit of the Constitution was killed in the enabling legislation where majority of those in the bipartisan team sat as elected representatives of the people.

On the question of the reconstitution of IEBC, at no point did the Constitution relegate the Commission from being independent, with a singular and primary loyalty to the people and fidelity to nothing else other than the Constitution and its enabling legislation. The fact that its commissioners and other officers may have served other gods cannot be reason to make it a constitutional crisis. The right intervention would be to subject the offenders to the full force of the law to serve as a deterrence to such misdemeanours of its future commissioners and public officials.

There is however nothing that betrays the real motivation of this talks than the sneaking in of the Funds, State offices and Political party issues into the discussion. The cost of living is purely a carrot thrown into the mix to buy it public goodwill and sooth the hearts of the people in anticipation of a referendum.

In any case, macroeconomic issues are majorly policy and administrative interventions as opposed to political contestations. The executive arm of government primarily drives this agenda with a facilitative role in resource allocation and oversight from the legislature.

The Funds agenda is to counter the Supreme Court verdict a day before the election that found the National Government Constituency Development Fund (NG-CDF) Act unconstitutional. This potentially rendered all the other funds, current and future, under the control or influence of elected officials unconstitutional.

The trap for the Kalonzo-Ichung’wah team and their patrons is the apex court’s verdict on the questions of separation of powers, encroachment on devolved functions and shareable revenues in relation to these funds.

I do not foresee how entrenching this funds into the Constitution can fail to infringe on the pronouncements and spirit of the related Articles of the Constitution. Probably, the finest legal minds in the land will help us understand if the intended constitutional amendments can potentially violate the existing constitutional order.

While the debate on the need for the office of Official Opposition is welcome, it loses its taste by tagging along the office of the Prime Cabinet Secretary. This makes the whole agenda stink of political cannibalism.

The political party agenda is purely a manifestation of the political prostitution that defines our politics. More fundamentally, before we make these things constitutional issues, we may need a candid debate on the role of society wide moral decay that defines our commerce, religion, politics, community and family level interactions.

I am yet to be persuaded that any constitutional amendments will resolve the bad manners among the political class and cheering voters. What we need is probably a courageous son or daughter of the land who can remain true to the Constitution, maintain absolute fidelity to the law, demand purity of all public institutions, and unwavering loyalty and accountability to the people and public good.