By Linda Apollo

For President Uhuru Kenyatta and opposition leader Raila Odinga, the dim prospects of the constitutional change process could upend any succession plans that they might have hatched together. Political analysts believe that Kenyatta could endorse Odinga for the presidency in 2022 over his deputy president, William Ruto.

On the 13th of May this year, a five-judge bench of the High Court, in a unanimous decision, struck down a state effort to amend Kenya’s 2010 Constitution. With the possible exception of the 2017 ruling of the Supreme Court of Kenya overturning the re-election of Kenyatta, a first for Africa, no judicial opinion has been more consequential. The ruling struck like the thunderbolt and upset Kenyatta’s legacy and possibly upended his succession plans.

It’s not an exaggeration to say that Kenyatta has pegged his tenure on the fate of the Building Bridges Initiative, a project ostensibly designed to rid Kenya of the perennial electoral violence, rampant corruption and ethnic and sub-national exclusion and marginalization.

Handshake to BBI

In 2017, Kenyatta sought re-election against a strong challenge from Odinga, without doubt, Kenya’s key opposition figure. Odinga had run against pro-establishment candidates before, each time coming up short. On several of those occasions, he claimed fraud and ballot-surfing. But each time, he has eventually declared the loser.

This pattern repeated itself in 2017. Citing irregularities, the Supreme Court annulled that election and ordered fresh presidential elections to be carried out. Odinga boycotted the re-run, assuming victory. He refused to concede and went ahead to swear himself in as the “people’s president”. Ethnic violence broke out and the economy was paralyzed. Then, on March 9th 2018, Kenyatta and Odinga shocked the nation by declaring a truce.

The rapprochement between the two came to be known as the “handshake”. Out of it grew the BBI, which they termed a historic initiative to right Kenya’s past wrongs and firmly put it on an irreversible path to full citizenship and belonging for all its diverse people.  Kenyatta and Odinga unilaterally appointed the BBI Taskforce, a fourteen-member committee composed mainly of status quo individuals and politicians.

In October 2020 the task force released its report and a constitutional amendment bill. Articles 255-257 of the constitution provide for the process of amending the Constitution through a referendum after approval by Parliament and a simple majority of Kenya’s 47 counties.

In March 2021, parliament approved the BBI Bill. However, groups of NGOs and citizens sued the state, the legislature and Kenya’s Independent Electoral and Boundaries Commission to stop them from conducting the referendum. The suit alleged, inter alia, that the process of the BBI was illegal and unconstitutional. It argued that the BBI bill usurps the sovereignty of the people.

They submitted further that Parliament was powerless to pass bills that would negate the “basic structure” doctrine which allows only the people, not the legislature to fundamentally alter the basic logic and architecture of the constitution.

Finest Jurists

To hear the petition at the High Court were arguably Kenya’s finest jurist. The bench comprised of the presiding Judge Joel Ngugi, a Harvard trained academic, had been a professor of law at the University of Washington School of Law in Seattle, one of the best law schools in America. He is also a reputable member of the school of thought known as Third World Approaches to International Law (TWAIL). He is recognized as a leading intellectual in Kenya and elsewhere. Early in his judicial career, he led the Judiciary Transformation Institute when Dr Willy Mutuga was Chief Justice between 2012-2016. His judicial rulings have been touted as original, progressive and stretch the scope of human rights.

On the bench, Justice Ngugi was joined by four other judges; Justice George Odinga, a leader in expanding the rights of the citizenry against an illiberal state bent on curtailing the rule of law. Justice Odunga is one of a small cadre of brilliant and courageous judges who are leading a judiciary long held captive by the executive overreach and corrupt cartels to a more independent posture.

The others on the bench included Justice Chacha Mwita, Teresia Matheka and Jairus Ngaah, have themselves been lauded for standing up to an executive prone to the abuse of power. The bench had been appointed by former Chief Justice David Maraga who had often clashed with Kenyatta for failing to carry out court orders.

Jurisprudential Milestone

Several of the court findings deserve special attention. The court agreed with the petitioners that the BBI initiative was irregular, illegal and unconstitutional. First, in the televised ruling, the judges held that Kenyatta had failed the integrity test of leadership and violated the norms contained in Chapter Six of the Constitution.  This is significant because no one should hold office and is liable to impeachment if they do, once they are found in violation of Chapter Six. It is not clear what the political implication for Kenyatta is on this finding. The judges warned that Kenyatta could be sued in his individual capacity.

Secondly, the judges also rubbished the five million votes collected from citizens by the BBI task force to support the referendum push. They ruled that the initiative was not stated, or led, by citizens. The court ruled that only the people could initiate and conduct a process to amend the constitution through a referendum.

Thirdly, the judges hold held that the  Independent Electoral and Boundaries Commission was not properly constituted as several of its members had resigned thus lacked quorum to conduct any legal business. As such, any decisions that the IEBC had taken, or would take, on the BBI process were null and void

Fourthly, the court ruled that only a people-driven initiative, as opposed to a state-driven exercise, can change the fundamental architecture of the Constitution. Only the people have the power to fundamentally reconstitute the state either through enacting a wholly new constitution or carrying out deep reforms of the extent one. This preserves the notion of popular sovereignty. The court held that parliament did not have the power to allocate 70 more constituencies in the BBI. The judges ruled that only the IEBC and no other entity could allocate new constituencies.

For now, the state and the supporters and the backers of the BBI have gone to the Court of Appeal seeking to overturn the High Court’s historic ruling. It is anyone’s guess what the appellate process will yield. Anything is possible given the capture of large sections of the judiciary by the executive. The appeal ruling to be made later in August could result in a reversal in whole or in part, of the High Court ruling. Or it could wholly reaffirm the lower Courts ruling.

One thing is undeniable; it is now an open question whether a referendum is even feasible given the election calendar in 2022. Time may simply run out on the BBI clock.

Ruto and his supporters had celebrated the high court ruling. For Kenyatta and Odinga, the dim prospects of the Bill process could upend any succession plans that they might have hatched together. Political analysts believe that Kenyatta could endorse Odinga for the presidency in 2022 against his deputy, Ruto.

The BBI agenda could have been an important calculus in that matrix. One of its proposals was to expand the executive to include a prime minister and two deputy prime ministers. These offices would have been an important aspect to bring on board a broader ethnic coalition of major communities to support Odinga. Kenyatta and his family and the political orbit cannot risk a Ruto presidency because of the bad blood between two men. BBI for him is a do or die proposition. Will the courts rescue or sink him?

The writer is a politics commentator based in Nakuru, Kenya.

Cover image courtesy of PSCU/File