President Uhuru Kenyatta and ODM leader Raila Odinga have set the mood for a referendum as details of a likely new structure of government said to be part of the final Building Bridges Initiative (BBI) report emerged.
With the President and Mr Odinga declaring recently that amending the constitution, that is marking its 10th anniversary this week, is a priority despite the Covid-19 pandemic, the handing over of the BBI report is expected to kickstart the road to the referendum. But even before the final report is released, interviews and public statements have revealed the key issues that Kenyans will be asked to vote for should the push for a referendum be successful.
President Kenyatta, in his 11th address on the Covid-19 pandemic on Wednesday, said that in the next three weeks, the country will chart its post-Covid future, which is expected to set the stage for the implementation of the BBI report.
In what appears as a message to the public to prepare for tough choices, the Head of State says Kenyans must be ready to take the bold step towards the changes.
“Ten years after our progressive constitution, the moment calls us to do better. Instead of a cease-fire document that enforces a zero-sum game in which the winner takes it all, the moment calls us to create a constitutional order that will long endure.”
“And on this, I want to emphasise that we must not go for the populist path. Let us choose the bold path; that path that will assure Kenyans of sustained peace and security, and shared economic prosperity,” he said.
Constitutional commissions
Issues likely to be on the table if the referendum is held include the system of governance and executive structure, introduction of the office of the Official Leader of the Opposition, restructuring the Judicial Service Commission (JSC), the place of constitutional commissions, granting Nairobi County a special status, and the country’s economic model, according to BBI insiders.
The two leaders will also be calling on Kenyans to vote on a new model of devolution that introduces regional blocs, and restructuring of the Directorate of Criminal Investigations (DCI) and the Independent Electoral and Boundaries Commission (IEBC).
The BBI team had indicated that they will not be going outside the first report they published in December 2019 but will work within the recommendations. It means very little will be fresh in terms the proposed constitutional, legislative, policy and administrative reforms.
Of the possible issues that President Kenyatta and Mr Odinga will be calling on Kenyans to vote on when a referendum is called, nothing has been more contentious as the system of governance and executive structure. The new structure being proposed, according to individuals with insider information, has a President as the Head of State and government, who is directly elected by the people, a deputy president, prime minister and two deputies.
If adopted, it would be a major reversal back to the hybrid system of government that both 2005 Bomas Draft and Harmonised Draft Constitution by the Committee of Experts had proposed.
In the proposed structure, the Prime Minister shall be the Leader of Government Business in the National Assembly and the retained DP will be the President’s running mate in the election.
In the report launched in 2019, the BBI team had recommended the creation of regional blocs as the focus of representation while the 47 counties remain as the focus of development implementation and the provision of services. They had also recommended that the 290 constituencies be retained.
On Thursday, Mr Odinga stepped up the push for regional governments, just a day after President Kenyatta called for the amending of the Constitution.
Mr Odinga said a third tier of government – 14 regional governments proposed in the Bomas Draft – would make devolution effective, arguing that some counties are not economically viable.
“Counties will merely be administrative units under the arrangement,” he told journalists at his Capitol Hill office.
He said the regional governments would host the executive and legislative arms of the devolved units.
Senate Majority Whip Senator Irungu Kang’ata says he supports calls by the President to amend the constitution.
“I support the view that Constitution of Kenya 2010 needs review. The constitution adopted three strategies to combat negative ethnicity: nation building (Art 7); devolution (Art 174) and centripetalism (Art 138-4). They didn't work. Either Kenya reverts to consociationalism (2008-2013) or strengthens centripetalism,” he posted on his Twitter page.
The proposals, however, could face opposition after deputy president William Ruto hinted that he would only support it if “persuaded on the parts to change in the constitution”.
“Changing the constitution is a decision to be made by Kenyans…I need to be persuaded on the parts to change in the constitution, We should not change for the sake of changing…If we are persuaded, we are reasonable people,” the DP said during an interview on Citizen TV on Thursday night.
He went on: “To my knowledge, the push to amend the constitution is by leaders, not by the people… Kenyans are more concerned about their livelihoods.”
The DP also called for the need to “unpack the ‘winner-takes-it-all’ notion,” arguing there is need to explain to Kenyans what it means.
Jubilee vice-chairman David Murathe told the Sunday Nation that the new formation will accommodate every part of the country, adding that they were ready for the 2022 political duel with “Mr Odinga as our captain”.
However, Mr Murathe — while saying he was not privy to the BBI report — threw in a new proposed structure with the possibility of two deputy presidents to ensure inclusivity.
“Nobody will feel left out. Just out of the box - if the BBI proposes a President and two deputy presidents, there will be no harm making Gideon (Moi) one of the deputy presidents and that means Rift Valley shall have been sorted and another one given to Kalonzo (Musyoka).”
“Then you have a prime minister, which Mount Kenya will most likely want to have, then two deputies. One can go to Coast and another one in western,” Mr Murathe said.
He said other positions such as the Speakers of the Senate and National Assembly among other top posts will also be up for grabs to ensure “we address the problem of exclusion”.
“We have also catered for ensuring that every community either has a Cabinet Secretary or a permanent secretary slot. So it is not about an individual as we want to end the fight in the scramble for the presidency,” added Mr Murathe.
But Dr Ruto’s allies, on the other hand, told their opponents not to push the DP to reveal his strategies for 2022.
“Shouldn't they be happy that their opponents only have one player ahead of the game? Demanding for a line up tells you something about the weight of the enemy,” Belgut MP Nelson Koech said.
“They should hold their horses. We are not and will not operate under duress and directions from idle power brokers. For now we are not thinking about 2022, we are focusing on ways of ensuring the government delivers to the people of Kenya especially in the wake of Covid-19 pandemic.”
Former Kakamega Senator Boni Khalwale said: “Murathe should first bring on record endorsements of Raila (Odinga) as the captain by Gideon Moi, Uhuru, Kalonzo and Mudavadi to be believed.”
Political analyst Mr Javas Bigambo says 2022 succession politics is less sensitive to the plight of Kenyans at the moment.
“He (Murathe) is not speaking to why exactly Raila should be voted for. Raila himself hasn't announced his candidature. It, therefore, follows that he is using Raila as a red-herring. It is easy to wonder, what exactly his obsession with a Raila candidature is about, yet he has never and is still not speaking about policy issues that would make Kenya better,” added Mr Bigambo.
