By Darius Okolla
The Court of Appeal declared the Constitutional Amendment Bill aka the BBI null and void on all counts giving unanimous decisions on 6 provisions, single dissent on 7 provisions and unanimous disapproval on 1 provision.
To understand the Bill though, one will have to go back 14 years, in 2007, when the state and society, saddled with an imperial presidency and a Nairobi-centric economy, operated under the precarious winner-takes-all model.
The smoldering Kenya, therefore-going by NSIS boss Major Gichangi’s submission at the Waki Commission-was an inevitable fact.
His team’s role, as implied, was to advice in an election-bungled as it was to be-was such that, if the third President Mwai Kibaki refused to leave or the Opposition Leader Raila Odinga kicked him out, either of them would have the legitimacy of at least a section of the society enough to rule and negotiate a coalition-and negotiate they did.
The subsequent Kofi Annan’s midwifed Agenda Four in 2008 dubbed ‘Long Term Issues and Solutions’ therefore was to design national pressure valves that would decentralize power and resources, key among them being devolution, that went into the 2010 constitution, 3 years later.
We can’t be naïve though to the scathing words of the late Cabinet Minister and Kangema MP Hon. John Michuki who was clear that they fought the late President Moi’s reign not because he was a dictator-which he was-but because he wasn’t one of them; them being a catch-all for the Mt. Kenya elite.
In hindsight, the famed Mount Kenya Mafia, baptized Uthamaki and currently monikered as the deep state or ‘the system’ seemed to had already settled on the near-inevitability of an Uhuru Kenyatta presidency.
Elections Under The New Constitution
However, soon after, a 2012 rivalry between the Deputy Prime Minister Musalia Mudavadi versus his counterpart Deputy Prime Minister Uhuru Kenyatta’s camps as Statehouse played into a the public gallery.
It subsequently led to the whispers of a possible Gideon Moi as running mate for either in 2013-a plan that was soon dropped, as having two cool kids rivalling Raila Odinga would have given his machinery an easy win at the ballot.
The gradual post-2007 fallout between William Ruto and Raila Odinga, that had been framed as a sort of Raila’s betrayal of the Kalenjin, under the ICC debacle, had come a full cycle.
Right then, in December 2012 Ruto’s URP and Uhuru’s TNA ironically united to form the 2013 dynamic duo.
Their manufactured chemistry emblemized by matching red ties and fist bumps impressed many, even though there seems to have been no love lost between the duo.
That is due to the fact that it was the first election since the 2007 meltdown where the duo had allegedly played the role of arming the rival CORD vs PNU brigades.
A long-termist view by the ‘deep state’ should have warned them of a possible mess of not only having two ICC indictees on the ballot, but that they also seem to have been united by a political marriage of convenience.
Insiders had pegged the URP-TNA ticket on the possibility of politically getting rid of the deputy after the 2013 election.
Not to be outsmarted though, Uhuru’s deputy seems to have had no illusion about the heartfelt desires of the deep state to render him politically irrelevant.
He set about building a tentacled political machinery anchored on inroads into the senate, national assembly, security organs, county assemblies, and even regional alliances.
His efforts to that end have earned him political indispensability that quite neatly guaranteed him the vice slot again in 2017, much to the frustration of the deep state, and also set him close to the throne, as the President nears the end of his last term in 2022.
Meanwhile, NASA’s impressive juggernaut as an umbrella for wide-ranging and disparate groups equally gave the Jubilee duo a run for their money.
Then Maraga’s Supreme Court overturned their presidential candidacy, sending the tantrum throwing 59 years old President to Burma market on Jogoo road where he heaved and hawed, promising hell and brimstone under the now infamous, ‘we shall revisit’ tag.
The November 26th 2017 farce of a repeat election didn’t provide Uhuru with much legitimacy, and even worsened the anxiety of a President who according to keen observers generally likes being liked.
When Handshakes Shifts Priorities
So, the March 2018 handshake came as a relief to him, given NASA had rallied their troops under the banner of an economic boycott. Keep in mind this boycott had worried even the most aloof of the deep state mandarins and their business interests.
The BBI handshake gave this President a truce with this arch-rival Raila, calmed his politically insecure Jubilee base, brought NASA’s economic boycott to an unofficial end, and clipped the powers of his deputy.
Its framework seems to have been pegged on instigating a mutually assured destruction between two equally powerful teams; Baba and Uhuru’s deputy, leaving the President to govern as he so claimed.
It was the President’s men’s hope that Raila would clip the more turpitude deputy, after which ‘the system’ would have offloaded Jakom, as they’d done thrice in a row, relegating him to the usual street protests. That hasn’t been so, though.
The Deputy President has been provably versatile despite taking hit after hit, with his foot soldiers stripped off from key positions, one after another, across appointive state structures.
The BBI has tanked. Raila has shown skepticism towards appealing it. The Attorney General Paul Kihara has hinted at a possible appeal.
Meanwhile, the Deputy President has unleashed a surprisingly resonant, and cross-cutting rallying war cry dubbed the hustler movement.
The Courts Revisit The President
The high court judges declared on May 14th that the BBI Bill was unconstitutional after which its backers rushed to the supreme Court. On August 20th the Court of Appeal judges too, namely The seven judges are Daniel Musinga, Fatuma Sichale, Gatembu Kairu, Hannah Okwengu, Roselyn Nambuye, Patrick Kiage and Francis Tuiyott affirmed the decision of the high court.
On the doctrine of the Basic structure 6 judges affirmed while one judge dissented. On the basic structure limiting amendment power to section 255 and 257 of the constitution 5 judges affirmed while 2 dissented. On basic structure alteration through primary constituent power as per the high court 4 affirmed while 3 dissented. On whether civil proceedings can be instituted against the president during tenure of office6 affirmed while one dissented. On whether the BBI committee has no legal mandate to institute constitutional changes all the 7 judges affirmed. On whether the BBI amendment Bill is unconstitutional all the 7 judges affirmed the same.
On whether the BBI Amendment Bill can’t be subjected to referendum due to the absence of voter registration, 6 judges affirmed while one judge dissented. On whether IEBC has no quorum6 judges affirmed while one judge dissented.
On the issue of whether IEBC has no legal framework for the referendum, 6 judges affirmed while one dissented. On whether county assemblies and parliament can’t alter a popular initiative bill, all judges unanimously affirmed the principle. On the Issue of BBI Bill cannot direct IEBC on how to allocate constituencies 6 judges affirmed, while one judge dissented.
On whether administrative procedures by IEBC are illegal due to lack of quorum, 6 judges affirmed while one judge dissented. On whether IEBC is barred from taking bill to the referendum, all the judges unanimously agreed. On whether president Uhuru has contravened chapter 6 of the constitutional the judges unanimously agreed.
On the issue of whether we ought to field separate referendum questions, 3 judges affirmed that idea while three dissented. Lastly on whether the BBI Steering Committee is illegal all the judges unanimously agreed.
The final verdict? The Constitutional Amendment Bill is dead on arrival.
Imagining a Post-BBI Future
So now, what gives? The backers of BBI led by the Attorney General Paul Kihara have resolved to head to the Supreme Court after the double defeat. The Supreme Court will likely affirm the verdict of the lower courts.
Meanwhile, Opposition Leader Raila Odinga will likely be on the ballot come 2022 and so will the Deputy President William Ruto.
The Okoa Kenya Alliance (OKA) coalition leans more towards the Kenya’s second Presidents son Gideon Moi, though the former Vice President Musalia Mudavadi will need a big incentive to make him stick around.
Bussinessman Jimmy Wanjigi has gone full political, while the Kenya’s third President’s son Jimmy Kibaki has emerged from the shadows, but for what, nobody knows…
Up until its collapse, BBI was viewed as Raila’s path to The Presidency, the path to Prime Minister-ship for the ‘too young to retire’ President, the best model for a 2007-style ‘big 5’ pentagon around Gideon or Mudavadi, and a post-2017 bargained peace with Raila for Uhuru’s regime.
Its collapse therefore, in the hands of a stubbornly resolute judiciary that has been ‘revisited’ though budget cuts and intimidation by a bully executive, scuttles the first and largest multi-purpose political vehicle under the new 2010 constitution.
A hemorrhaging economy, sunk by this regime’s monetary indiscipline, shot-termist political thinking, poor 2022 succession plan, a struggling citizenry, and a seething public anger, a year to such a decisive election, has left too many moving parts, too close to the tape.
Given the heated Raila-Uhuru-Ruto post-2017 fights, the 2022 outcomes will no doubt lead to retributions from one cluster of the elite to the others.
The Constitutional amendment Bill’s stillbirth therefore, simply ushers us again into a not-so-new political war between the tactical master that is Raila Odinga and the strategic planner that is William Ruto.
Don’t forget that their fight, started in the 2007 pentagon, then thrice at the ballot; in 2013 and twice in 2017, also in Jubilee via the 2018 BBI handshake, and now possibly at the ballot again come 2022. Hopefully they’ll settle their political rivalry for good, this time round.