On Friday 20 August, a bench of Kenya’s Court of Appeal ruled against constitutional changes proposed by President Uhuru Kenyatta and opposition leader Raila Odinga. The ruling, which affirmed most of an earlier ruling by a lower court, now means that the options for the two political leaders have drastically reduced.
The proposed amendments, the culmination of a process that began with the former rivals making peace after a highly contested election, would have seen Kenya going into a referendum before the August 2022 elections. The proposals were wide ranging, but among the most contentious were alleged gerrymandering with new constituencies, and a rearranged executive structure that would have reintroduced a Prime Minister position.
If passed, they would have allowed President Kenyatta’s successor a lot more leeway in coalition building and post-election pacts — something that Raila Odinga had hoped would be his.
The proposed amendments, known as the Building Bridges Initiative (BBI), would have, for example, allowed Kenyatta’s successor to appoint elected legislators to the cabinet. The 2010 constitution limited cabinet appointments to technocrats, and President Kenyatta has since struggled to fit in politicians into that side of the executive. After the 2017 elections, he created the position of Chief Administrative Secretary within ministries and appointed, among others, politicians who had lost their seats.
To most pundits, the 20 August ruling spells the end of the BBI as Kenya’s most important, and contested political process.
What Odinga does next
Odinga and his party, the Orange Democratic Movement, have since said that they will not be moving to the Supreme Court for a final word on the proposed referendum.
But Odinga’s non-participation in a possible Supreme Court hearing isn’t the final word on the issue, which could still play some role in shaping the 2022 elections. On Monday 23 August, Morara Omoke, a Nairobi lawyer who represented petitioners in the earlier cases, filed his intention to challenge the Court of Appeal’s ruling on several issues. Among them is the ruling that a proposed referendum on multiple amendments, such as the BBI bill, can be submitted as a single question to voters.
President Kenyatta may also not be quitting just yet.
Kenya’s Attorney General, Justice (Rtd) Kihara Kariuki, has already expressed his intention to move to the Supreme Court, challenging the basic structure doctrine, the finding that the Executive can not use the popular initiative route to propose changes, and seeking clarification on presidential immunity. Other parties may also keep the BBI case alive within the Supreme Court, especially because the two rulings so far have served as an important stress test for the 2010 constitution.
Still, Odinga’s decision to ease off on the BBI is driven by the political calendar, and not necessarily absolute surrender.
Shortly after the Court of Appeal ruling, Odinga released a statement saying that he and his party would now: “Pursue the bigger goal of setting the rest of the issues facing this country.” His commitment on the changes hasn’t waned, he insisted, promising to “deal with all the issues in the months and years that will unfold onwards.”
An empty house
With the August 2022 elections just a year away, Odinga will most likely move into campaign mode, where his biggest rival for the seat at the moment, Deputy President William Ruto, has been relentless since he was pushed out of power circles in 2018.
Odinga’s campaign has the overt support of President Kenyatta who has been trying to influence his succession, and has thrown his weight behind Odinga’s ambitions.
In early August, the President openly began trying to reconstitute the coalition that challenged him and DP Ruto in 2013 and 2017, pushing them to work together to support Odinga again.
But Odinga’s former coalition partners, who include former Vice Presidents Kalonzo Musyoka and Musalia Mudavadi, have been jittery about committing to the Odinga cause for a third time. Among the issues that broke the 2017 coalition was Odinga’s post-2017 decisions to swear himself as the People’s President, and then to move into a quasi-coalition with the ruling party Jubilee without involving his partners, as well as the sharing of funds distributed to political parties depending on their electoral success.
Another breaking point is the fact that former Vice President Kalonzo Musyoka has been Odinga’s running mate over two election cycles, and now insists the former Prime Minister shelve his ambitions for the presidency.
The money question has lingered since the elections, since the fund is distributed according to set requirements that mean only Odinga’s party, ODM, qualified for it among the opposition parties that constituted his 2017 coalition.
In late July, ODM offered to share the money but it was too late, as its coalition partners formally bolted to formally join a new coalition called the One Kenya Alliance which also includes the independence party KANU.
In the meantime, Odinga has been working on a coalition with the ruling party Jubilee, which is now a shell of its former self after the de facto exit of Deputy President William Ruto and his allies to a new party.
Referendum as coalition test track
Whether voters had passed or rejected the BBI bill, the referendum process would have given Kenya’s political actors a chance to test out their national profiles, as well as rearrange their political structures.
While its journey through the courts has been a godsend to constitutional lawyers and the public interest litigators who petitioned the courts, it has undone four years of work by Kenyatta and Odinga. Even the possibility of its success in the Supreme Court might come a little too late, with the general elections calendar now in play.
With the tight political calendar that will unfold in the next 12 months, Odinga will most likely be back in his element, confounding friend and foe with his political moves.
Without BBI, however, his choices are limited especially in what he can offer potential partners to win their support in time for the elections. Without the referendum, he now has to work to build a winning coalition without the chance to test its worth before the elections.
Among the biggest challenges the next few months will present to Odinga and his campaign is whether the President’s overt support is a gift or a poisoned chalice.
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