By Prof. Kivutha Kibwana
Finally, the Steering Committee on the Implementation of the Building Bridges to a United Kenya Task Force has unveiled its second report, which features the Constitution of Kenya (Amendment) Bill, 2020; a raft of proposed public policy guides and administrative measures; as well as new legislative proposals.
The BBI task force has focused on necessary changes to the 2010 constitution, laws, policies and values aimed at promoting genuine unity and non-disruptive elections.
One cause of endemic electoral violence has been touted as the winner-take-all, first-past-the-post electoral system. Apart from the 1963 and 2002 elections, all other polls in Kenya have been marred by violence and controversy.
In 2013, the electoral verdict was grudgingly accepted by the opposition after the Supreme Court’s adjudication.
The dominant political players in Kenya’s elections routinely originate from five ethnic communities: Kikuyu, Luhyia, Kalenjin, Luo and Kamba. Blood ties have defined politics since independence.
Representatives from the other 40 or so ethnic groups have remained on the sidelines.
BBI proponents, therefore, argue constitutional change will usher in new politics of vision, ideals and values.
Political power and national resources would then be shared equitably among the majority and minority ethnic blocs. The 2010 devolution constitution had a long gestation period.
Its first draft was by the Ghai-led Constitution of Kenya Review Commission in 2002. It was followed by the Bomas draft of 2004.
Parliament altered the Bomas Draft to produce the Proposed New Constitution of 2005, which was defeated in a referendum.
Subsequently, Kitonga’s Committee of Experts produced two draft constitutions based on the Bomas and 2005 drafts, the last of which was processed by Parliament and became the 2010 Constitution.
A major reason for the 2005 referendum defeat was its exclusion of the prime minister and deputy prime-ministers’ positions, which were in the Bomas draft.
Hence Kenya’s quasi-parliamentary system has been in the independence constitution (1963-1964), in the aborted Bomas Draft (2004), in the grand coalition government (2008-2013) and now in the proposed handshake constitution.
The 2010 Constitution was preluded by substantive people’s participation through independent constitution-making organs.
The negotiated Constitution of Kenya Review Act of 1997 (as amended) and of 2008 provided for an elaborate process of constitution-framing.
The Haji task force has not had a similar robust citizen consultative process. Kenyans have established an entrenched Article 1 people’s sovereignty principle that their constitutional review must be people-driven.
Currently, there is a High Court case by Dr David Ndii, the Law Society of Kenya and others challenging the BBI process.
Chief Justice David Maraga has also advised President Uhuru Kenyatta to dissolve Parliament due to its failure to enact the two-thirds gender rule.
Although the advisory opinion is in abeyance, the new suit should also be disposed of to pave the way for a national conversation on the BBI.
From key pronouncements during the BBI report launch in Kisii County, it appears the intended constitutional amendment path is the popular initiative via Articles 257 and possibly 255. Usually, such an amendment is promoted by a citizen or civil society or even a political party and signed by at least one million registered voters.
A minimum of 24 counties must approve the constitutional bill from the popular initiative.
Then both the Senate and the National Assembly must pass the bill by a simple majority.
If any proposal relates to Article 255, then a referendum becomes mandatory.
In the proposed BBI constitutional amendments, the provisions relating to the bill of rights, the functions (role) of Parliament, or the structure of devolved government fall under Article 255.
If that is so, then a referendum would ensue. Even if Parliament fails to pass the constitutional bill under the popular initiative, passage at the referendum would cure Parliament’s objection.
During the referendum, only 25 per cent of the registered voters in at least 24 counties must approve.
Suppose the BBI proposals are subjected to a parliamentary initiative under Article 256.
This requires both Houses to pass the constitutional bill by at least two-thirds of all the members.
Once more if it is deemed any Article 255 matter is implicated, then a referendum must follow.
Several other questions can be posed: First, can a government-appointed task force trigger constitutional change through a popular initiative? Can officialdom be a promoter of such constitutional change or should it go through the parliamentary initiative?
The potential risk of a parliamentary initiative is the promoter must raise at least two-thirds of all members of each of the two houses and then, if Article 255 issues are involved, confront the referendum hurdle.
A second question relates to the non-existence of a referendum law. Presumably, such law would include the procedure for processing the BBI report to conclusion. How will Kenyans, after robust civic education, debate and process the BBI recommendations so that a genuine consensus for or against the proposals can emerge?
Third: If the current IEBC is to be retired before the 2022 elections, should it preside over a referendum? In constitutional theory, constitutional change is accorded greater weight than an election. What procedure will be used to replace the IEBC retirees so that referendum contestants are satisfied that the IEBC is independent?
Fourth: If electoral justice exists and elections are free and fair, opportunities, resource sharing and governance democratic, wouldn’t losers accept electoral outcomes and wait to try their luck in the ensuing elections?
Fifth: Those who oppose the BBI report argue that the state and government have not, by and large, implemented the 2010 constitution. Many people wonder whether both institutions could possess the will and capacity to still implement the 2010 Constitution if amended by the 2020/21 BBI proposals?
Sixth: If the mobilisation for BBI is done through representatives of the big five, does this portend national unity and inclusivity that encompasses holistic socio-economic and cultural dimension in which no one is left behind?
After all no Kenyan should, according to Article 27 (4), be discriminated on account of, among other categories, race, sex, ethnic or social origin, colour, age, disability, conscience, belief, culture, language or birth.
Professor Kivutha Kibwana is a former Spokesperson of National Convention Executive Council (NCEC), former Senior law lecturer and Associate Professor of the University of Nairobi and current Makueni County Governor. He can be reached via firstname.lastname@example.org