BBI Judgment throws spanner in the works for coalition deal-making

Yesterday’s Supreme Court finding that the Building Bridges Initiative (BBI) Bill is unconstitutional has complicated power-sharing plans for Azimio la Umoja presidential aspirant Raila Odinga and his Kenya Kwanza Alliance counterpart William Ruto, who are crafting their winning formulas.

The BBI Bill had proposed the expansion of the Executive, with the creation of the position of Prime Minister and two deputies as well as allowing the appointment of MPs to the Cabinet.

The understanding in the two leading formations – both the said and unsaid – is that the BBI process, were it to be okayed by the Supreme Court yesterday, would have made deal-making for the August 2022 polls easier.

As it is, without the BBI, and with no option of dangling minister slots to MP aspirants, presidential hopefuls are left to only promise the running mate position, making an already difficult task much worse.

And even though Dr Ruto has on many occasions opposed plans to create more positions in the Executive, the creation of the Prime Minister’s post and two deputies would have equally given him an opportunity to easily share the slots and silence voices of dissent over the running mate position in Kenya Kwanza.

Dr Ruto and Mr Odinga are keen on nominating a running mate from the vote-rich Mt Kenya region, but the diversity of their alliances has caused them a nightmare on how to maintain unity.

Dr Ruto, for example, is faced with the challenge of whether to offer the position to Mt Kenya region, where he currently enjoys good support, or hand it to Amani National Congress party leader Musalia Mudavadi.

Other than the Mt Kenya challenge, Mr Odinga is also grappling with maintaining Wiper leader Kalonzo Musyoka who despite endorsing him for a third time, has taken a low profile over claims of a power sharing and coalition name impasse.

70 new constituencies

Besides the expansion of the Executive, the BBI Bill had proposed the creation of 70 extra constituencies, which would have also provided a bargaining chip for presidential aspirants.

The Bill also wanted counties to get up to 35 per cent of the most recent audited accounts of the national government, 50-50 gender representation in the Senate, a seven-year tax holiday for youth-owned business and a four-year moratorium on student loans.

Mr Odinga yesterday hinted at the possibility of reviving the BBI.

“We shall deliberate on the way forward and decide on a future course of action that protects the interests of all those who voted to see the amendments come to light,” the ODM leader said moments after the verdict.

“The verdict is emphatic that every state organ must always subject itself to the people of Kenya and must never usurp their sovereignty by substituting their will with that of state officers and state organs. 

“I also note that the content of the Bill itself was upheld, save for the provisions of the Second Schedule. What has been faulted is the role that the state is said to have played at the commencement of the popular initiative,” the ODM leader said.

While Mr Odinga was not direct on when the initiative might be revived, ODM national chairman John Mbadi said the verdict had given proponents of the drive an opportunity to revive it soon after the elections.

“Certainly BBI has to be revived in some way. Any Kenyan, even President Kenyatta, who will be a private citizen after the elections, can initiate the process of BBI so that Kenyans realise its benefits,” Mr Mbadi said.

Sober judgement

Lawyer Paul Mwangi, an ally of Mr Odinga and who was one of the lawyers arguing the BBI case, said since the power to amend the constitution had been upheld, “it’s now up to the political leaders to decide whether or when to reload”.

ODM Secretary-General Edwin Sifuna said the courts had provided crucial guidelines on how to go about amending the constitution.

“The courts have made the process clearer without invalidating any of the actual proposals save for the one on the constituencies,” he said.

Kirinyaga Governor Anne Waiguru, a Ruto ally, described the judgement as “sober”.

“The closure of the BBI calls for introspection on the process of constitutional amendments of this nature and how we can in future resuscitate the progressive part of the BBI, including the 35 per cent minimum allocation to counties and the actualisation of the two-thirds gender rule,” Ms Waiguru said.

Suna East MP Junet Mohammed, who together with former Dagoretti South MP Dennis Waweru were promoters of the initiative, celebrated the Supreme Court decision that the basic structure doctrine – the idea that some sections of the constitution are protected, and unamendable – does not apply in Kenya.

“Kenyans, especially future generations, must be glad to know that our constitution can be amended. More importantly, there now exists judicial clarity on how to amend the constitution. The judgment ... also demonstrates the maturity of our democracy and its core institutions,” Mr Mohammed said.

Wiper leader Kalonzo Musyoka simply said: “We respect the Supreme Court of Kenya,” while Secretary-General Shakila Abdallah said: “Governments have been formed without BBI so with or without BBI we will move on.”

Kandara MP Alice Wahome, a Ruto ally, said the decision was a clear indication that President Kenyatta and Mr Odinga will not succeed in their political moves.

BBI campaigns

“On the fall of the BBI, my only regret is the amount of energy and hatred BBI campaigns brought among Kenyans. The amount of time and money wasted on a hopeless and futile escapade of Uhuru and Raila,” she said.

Nyeri Town MP Ngunjiri Wambugu said the ruling has given Kenyans an opportunity to interrogate the intentions of the two leaders on why they came up with BBI.

“This helped a lot more people to understand the noble intentions behind the concept. It also cemented the fact that we must, as a country, deliver on the concerns BBI had identified as needing intervention,” said Mr Wambugu, an ally of the President.

Simon Gikuru, ANC’s secretary-general said the people of Kenya had won, adding that the ruling was a major leap forward in terms of the development of the rule of law and constitutionalism in Kenya. 

Mr Nelson Havi, who argued against the BBI, said: “It matters not that the Supreme Court has held that the basic structure doctrine is inapplicable in Kenya. In the end, all that matters is the pronouncement, ‘It is null and void’.”

Dr Otiende Amollo, an Odinga ally who was bashed for calling for a review of a section of the BBI Bill, said “reggae is back on immediately after elections”, adding that the court had vindicated him and echoed his submissions in Parliament and in court.

Kimilili MP Didmus Barasa said the judgment was meant to be politically correct.

“On declaring BBI unconstitutional, that was okay but they also did a balancing act to appease the Executive, especially in vacating several orders notably on immunity of the President and the basic structure doctrine,” Mr Barasa said.

Speaker of the National Assembly Justin Muturi said: “The issue of immunity and basic structure were the two important to me and I’m happy the highest court in the land has pronounced itself on them. The rest we can do, even as a House,” Mr Muturi said.

Reporting by Justus Ochieng’, Samwel Owino, Onyango K’onyango and Ibrahim Oruko