The need for the BBI spirit to be realized is an existential issue that can not be just ruled a way, we should redeem it

Saturday, May 15th, 2021 19:51 |
President Uhuru Kenyatta (right) and ODM leader Raila Odinga display BBI document when they toured Kisii County to popularise the document. Photo/PD/File

By Jacob Ochieng

The ruling by the high court to the effect that the BBI bill is unconstitutional has thrown the handshake between President Uhuru Kenyatta and ODM leader Raila Odinga in disarray. The two leaders had planned to have the bill passed to pave way for a referendum. All that seems to have been halted by the ruling which has forced the handshake team to lodge an appeal at the appellate court.

A lot has been said about the ruling and opinion is sharply divided regarding the verdict. Whereas the BBI bill originated from the President and the opposition leader and not Parliament, there was a good reason for that. Those were challenging times arising out of tension that ensued immediately after the 2017 general election. In my view, nothing stops the President, as a Kenyan, from initiating a process that leads to the law change. Besides, as the country hurtled towards the brink of disintergration, the two leaders had to move quickly to restore unity.

There may be several issues that the BBI bill was to address but the main issue has to do with executive as constituted at the present time. The idea that the presidency is too powerful and something should be done to reduce or distribute those powers to other levels-is something that has featured prominently during the constitutional reform negotiations that eventually culminated into the 2010 constitution. At the very last stages, it was clear that majority of Kenyans wanted a parliamentary system of government where we would have a prime minister as head of government and the president as head of state.

All this was thwarted by members of Parliament in Naivasha who swiftly adopted the system we have now. One thing is clear-as long as we have the current structure of government-there will be grievances after every election-and Kenyans will continue to suffer electoral violence. That is something that the BBI bill could have solved. We must accept the fact that the status quo is not acceptable and we must change our governance system to guarantee peaceful elections.

The proponents of the cases at the high court that necessitated the ruling on BBI could be celebrating their victory even as the handshake team assembles a strategy for appealing against the ruling.However,it is clear that the BBI process had permeated the society and people had started envisioning the changes that were to be made. The fact that this is a political process presupposes that the masses have been subsumed into it since the very beginning. This galvanization of the public consciousness has raised the political temperatures and there are a lot of expectations therein. It will be interesting to see how the panel of judges at the court of appeal addresses this dimension of the process.

It is intriguing that a bill that was endorsed by the MCAs, MPs and senators has been declared unconstitutional by the courts. What does that say about the harmonious working relationship between the arms of the government? Aren’t the MCAs, MPs and the senators the representative arm of the people of Kenya? What is the level of disconnect between the elected leaders and the people they represent? These are key questions because the ruling appears to have challenged the very supremacy of the people of Kenya by disregarding the weight of the entire representation of the people of Kenya by the legislature.

This ruling comes at a time when the relationship between the judiciary and the executive has hit an all time low. President Uhuru Kenyatta’s refusal to appoint the 41 judges has created tension between the two arms of government. Retired Chief Justice David Maraga’s earlier recommendation for the dissolution of parliament by president escalated the tiff.Interestingly; a member of the ruling panel was one of the judges slated for promotion to the court of appeal whose judges the president refused to appoint. You can easily see that the ruling was made in a poisoned environment such that its validity comes to question.

And now that the BBI process has heightened the political consciousness of the masses, would it be fair to just throw away the entire thing and brace for an election which will be devoid of checks and balances that were envisaged in BBI?Timing is of consequence here. If indeed, the sponsors of the cases were genuine, why didn’t they file the cases in court early enough before the process reached an advanced stage? By this reasoning alone, the ruling should be set aside. Kenyans should not suffer the consequences of electoral violence just because somebody belatedly wailed about certain irregularities-to what is clearly a serious attempt at righting the wrongs of our electoral past.

This blatant disregard by the courts of the voices of the elected representatives of the people is something that we must watch out for. How do we reconcile the fact that in one swoop, the passage of the BBI bill by all representatives of the people of Kenya was swept under the carpet? The judiciary’s independence can also easily undermine other arms of government. The fact that the idea of the establishment of the judiciary ombudsman to be appointed by the president-was vehemently opposed by most members of the judiciary is also something that makes the ruling suspect.

Anyhow, what matters now is the fact that imitators of the BBI ought to move fast to ensure that all is not lost. If there are sections of the bill that can be enacted via parliament then so be it-though it is hard to see how key proposals can be enacted without a referendum. The appellate court need to weigh carefully the legal and political implications of the ruling that they will make for that is one decision that will significantly indicate the political direction our country will take as we approach the 2022 general elections.

The writer is the author of Aphorisms and Poems of Light.

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