Wi*l the Uhuru, Raila BBI dream c*me to fruition?
President Uhuru Kenyatta and his Handshake partner Raila Odinga must be waiting for today’s Supreme Court verdict on the Building Bridges Initiative (BBI) with bated breath.
Although the two leaders are on record saying they would accept the decision of the seven-member Bench, political observers have indicated that whichever verdict is made could in one way or the other have a huge bearing on the August 9 General Election.
Tomorrow’s judgement could either completely seal the fate of BBI if Supreme Court judges throw out Attorney General Kihara Kariuki’s appeal or give it a lifeline by endorsing sections of the proposals and thereby revive the law review project initiated by the two leaders.
In his last Jamhuri Day address, Uhuru had told the nation that “BBI is just a dream deferred, one day, someday, it will happen”.
The sweeping constitutional change proposals were shot down by the Court of Appeal on May 14, dealing a major blow to the President, Raila and their allies who had wanted the amendments to be subjected to a referendum before this year’s elections.
Reacting to the Appeal Court judgement then, Uhuru had said BBI was part of his legacy plan to unite the country and termed the ruling as one tainted by politics.
The proposed amendments had earlier been dismissed by the High Court, a ruling that saw BBI proponents file a challenge at the Appeal Court, which upheld the lower court’s verdict, forcing the team to seek the Supreme Court’s intervention, whose ruling will be delivered tomorrow morning.
Will the Supreme Court resuscitate Uhuru’s deferred dream or will it bury it completely?
Questions on whether the basic structure doctrine is applicable in Kenya, presidential power limits, and delimitation and allocation of new constituencies formed part of 21 declarations first issued by a five-judge Bench of Justices Prof Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Matheka Mumbua, in their decision to annul the process that was in the final stages and heading to a referendum.
Three declarations
Justice Ngugi-led court also issued three declarations directed at Uhuru, key among them being that the President violated Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i).
Court also held that the President lacked the authority to initiate changes to the Constitution and that he could face civil proceedings for any action or inaction in the performance of official duties during his tenure.
Legal observers and political scientists remain unanimous that the Supreme Court verdict could be hinged on three options to determine the fate of the document that has generated political heat for over two years since its inception.
Lawyer Gad Awuonda, who was a member of the Committee of Experts that initiated the 2010 Constitution, the Supreme Court has the first option of either agreeing with the judgements made by the High Court and Court of Appeal and thereby consign the entire BBI document to the political dust bin.
The Supreme Court Bench comprising Chief Justice Martha Koome, her deputy Philemona Mwilu, Justices Smokin Wanjala, Njoki Ndung’u, Ibrahim Mohamed, Isaac Lenaola and William Ouko, could as well agree with the BBI proponents in totality and revive the process, which would be a major victory for Raila’s Azimio La Umoja coalition as the campaigns enter the homestretch.
The third option, which most of the lawyers and political analysts see as the most likely scenario, is that the judges may become “Solomonic” and make concessions on certain sections of the proposals while vetoing others.
Awuonda says President Uhuru and Raila stand to lose nothing should the judges agree with the two lower courts’ ruling since the former has already drafted an alternative succession option without BBI.
“But should the court isolate certain sections for implementation, the President and Raila will have to go back to the drawing board and decide whether a referendum should be held alongside the General Election or after the polls,” Awuonda says.
Lawyer envisages a situation where the judges are likely to give BBI some lifeline by singling out certain proposals for implementation and vetoing others.
“In my view, it would be a mixed ruling where the judges are likely to rule against certain sections where the two lower courts appear to have attacked the persona of the President in order to redeem the face of the office for prosperity. But there are certain areas the judges will agree with the lower courts,” says Prof Macharia Munene, a political analyst.
Should the court decide to follow the third option, by identifying and isolating certain sections of the proposed law for implementation, Munene and Awuonda say, the President and Raila, whom the former is supporting for the presidency in the August polls, could be the biggest winners.
“Imagine a situation where Supreme Court allows reforms of the governance structure. This will obviously enable Raila to attract more parties and leaders in his coalition because he will be in a position to accommodate them in his government,” Munene observes.
As argued by government lawyers during the appeal, Munene says, the Supreme Court will have to make a determination on whether the President can be sued in his personal capacity for pursuing such an initiative.
Top judges
Besides, Munene says the top cream judges will also have to come up with a decision on whether the five-panel bench at the Court of Appeal had “erred” in determining that the President did not have the legal authority to spearhead the BBI amendments.
“It is likely to be a win-win situation for both parties. But the most important thing is that some of the sections that could be allowed by the court will give the President and Raila some lifeline,” says Munene.
BBI proposal had, notably, sought to expand the Executive in what its proponents had billed as an attempt to curb a cycle of election-related violence, a problem blamed on the existing winner-take-all electoral system.
It had also sought to create 70 new constituencies, allow appointment of cabinet ministers from elected Members of Parliament, and create several powerful new posts: a prime minister, two deputies and an official leader of the parliamentary opposition.
Deputy President William Ruto, who led a spirited campaign against the document, argues that adopting the reforms would burden a country already struggling with public debt as it would push up Parliament’s wage bill while creating more opportunities for patronage and corruption.
Court is also expected to pronounce itself on the quorum threshold of the electoral agency, and the implications of lack of quorum set out under Section 8 of the IEBC Act.
