To promoters and supporters of the Constitution of Kenya (Amendment) Bill 2020, the proposed law changes have surmounted all the roadblocks that were on its way.
However, it may be too soon to celebrate as emerging challenges still threaten to derail the Building Bridges Initiative (BBI) train before the referendum.
Court cases, an electoral commission running on half its capacity, a row over constituencies, opposition from MPs and a difficult referendum stand in the way of the initiative.
A decision on the consolidated cases in opposition to the proposed amendment of the Constitution is awaited after the hearings ended.
Lawyer Paul Mwangi, who defended the Bill, which is a product of task force of which he was a joint secretary, says they are only waiting for the judgment that the five-judge bench said would be delivered on notice.
“Besides that, I see no other hurdle,” he said.
A number of cases that are challenging the BBI were consolidated and heard together. The Supreme Court, on the other hand, declined to hear the applications for an advisory opinion that had been lodged in the court.
Pending the determination of the consolidated petitions, the five-judge bench consisting of Justices Joel Ngugi, George Odunga, Jarius Ngaah, Janet Mulwa and Chacha Mwita had issued orders barring the Independent Electoral and Boundaries Commission (IEBC) “from facilitating and subjecting the Constitutional Amendment Bill 2020, to a referendum” pending determination of the petitions filed against the BBI.
An unfavourable ruling to the BBI drive could scuttle everything the principals, President Uhuru Kenyatta and former Prime Minister Raila Odinga, and their associates have been driving but give political fodder to the opponents of the initiative led by Deputy President William Ruto and a section of the civil society.
National BBI Secretariat co-chair Junet Mohammed feels that BBI is on course to a referendum and nothing can stop it now.
A report of the joint Justice and Legal Affairs Committee of the National Assembly and the Senate’s Justice and Human Rights that declared the proposal for 70 new constituencies unconstitutional had sent party leaders and their associates scrambling to deal with the biggest threat the BBI has faced thus far.
“By next week we will conclude the debate in Parliament. Hopefully, we should also be done with the court cases. Then we will go for a referendum,” said Mr Mohamed.
MPs started the debate on the Bill this week and they are expected to conclude it before the new week comes to an end.
Already, there has been heated debate in both houses of Parliament, with allies of Dr Ruto arguing that amending the Constitution is not a priority at the moment.
At the Senate, a section of members has vowed to push ahead with amendments to the Bill in defiance of their party leaders.
“I hold the view that Parliament cannot be gagged when it comes to a constitutional amendment Bill. We cannot declare sections of the Bill unconstitutional and still go ahead to pass on the same unconstitutionality to the people. Why did they elect us?” said Kitui Senator Enoch Wambua.
Mr Wambua has proposed four amendments to the Bill, including the controversial Second Schedule which prescribes the 70 new constituencies.
According to Mr Wambua, the role of the Independent Electoral and Boundaries Commission (IEBC) cannot be usurped by a task force.
“Parliament must protect our constitutional institutions to entrench democracy,” he said.
Even though party leaders and the BBI principals have been whipping their troops to support the initiative, the emerging opposition within their ranks is becoming a headache.
The rebellion in Jubilee has been obvious, with MPs allied to Dr Ruto openly opposed to the proposed amendments.
In Parliament, the likes of Elgeyo Marakwet Senator Kipchumba Murkomen have challenged the promoters of the Bill which they argue is not a priority.
While the DP’s opposition has been known for long, it is the silent rebellion within ODM and other parties supporting the initiative that could be of concern to the promoters of the Bill.
Mr Wambua belongs to Wiper Party, whose leader is former Vice President Kalonzo Musyoka.
Mr Musyoka has thrown his weight behind the BBI and has also put his party at the disposal of President Kenyatta after they hammered a cooperation agreement in 2020.
Last week, Mr Odinga rebuked his MPs, Siaya Senator James Orengo, his Nyamira counterpart Okong’o Mogeni and Rarieda MP Otiende Amollo for signing the report of the joint National Assembly and the Senate committees.
“We expect opposition to the Bill to come only from those who have always opposed the initiative, which is Tangatanga. ODM, Wiper, ANC and the President’s wing of Jubilee will pass the BBI. Mr Odinga is quite sure about that,” said Mr Odinga through his spokesman Dennis Onyango.
As the debate in Parliament has unfolded, Mr Orengo and Mr Amollo have again been the targets of those close to Mr Odinga.
“The demagogues have had their years, indeed decades, discussing politics in flawless English and legal jargon on the floor and public rallies. It is time for a different path…Enough with English, faculty and demagoguery,” said Mr Onyango on Friday in a Facebook post that was targeted at Mr Orengo and Mr Amollo.
