Late last year, opposition leaders joined President Uhuru Kenyatta as he kicked off an exercise to collect one million signatures required to change the constitution through a referendum.
The ceremony held at Nairobi’s Kenyatta International Conference Centre (KICC) attracted dignitaries from all walks of life. Leaders gave lucid speeches and accused the anti-BBI brigade of spreading falsehoods, warning them that the constitutional amendment process was unstoppable. “Nobody can stop reggae,” Raila Odinga – party leader of the Orange Democratic Movement (ODM) – said in reference to the popular single by Lucky Dube, the late South African reggae star.
Deputy President William Ruto, who has been opposed to the initiative from the beginning, was missing in action.
On that day, Kenyatta, Raila, Kalonzo Musyoka (Wiper Party leader); Musalia Mudavadi (Amani National Congress, ANC, party leader); and Moses Wetangula (Ford Kenya Party leader) appended their signatures on a white board to show their commitment to amending the constitution.
Court of Appeal judgement
Like previously formed coalitions – that came with grandiose promises of change but never outlived the five-year cycle – the ‘coalition of the willing’ crumbled after the 20 August Court of Appeal decision that upheld an earlier ruling by the High Court, which declared the BBI Constitutional Amendment Bill (2020) illegal.
The fallout was messy: leaders in the pro-BBI group traded accusations over the rejection of the bill. What’s worse, the anti-BBI group stoked the fire by portraying themselves as ‘defenders of the constitution and the common man’ and labelling their rivals as ‘defenders of the political elite and butchers of the constitution’.
Change of tune
Mudavadi blamed selfish political interests for the BBI fiasco, terming the whole process as a waste of time and resources. “When leaders refuse to listen to each other, […] make themselves a one-man choir, […] decide that it is their choir that will sing and nobody else[‘s] the consequences are very grave,” he said, an indirect jab at Kenyatta and Raila.
The ANC leader defended himself saying: “[…] some of the words that I used [at] Bomas (during the launch of the first BBI document) three years ago were some of the pronouncements the judges were using in their [ruling],” he said.
However, Mudavadi failed to mention that before the president launched the signature-collection exercise on 25 November last year, ANC leaders held a meeting in Nairobi and endorsed the BBI document. “ANC party now supports BBI and urges all Kenyans to come together and participate in this process with a view to having a smooth and non-contested referendum,” Mudavadi said at the time, adding that some of the issues the party raised had been addressed. “[…] we have no difficulty in recommending it to Kenyans”. He further stated that the party would establish its own platform to popularise the document.
BBI cheerleaders’ wrath
Other BBI cheerleaders then took cue from Mudavadi. His deputy, Ayub Savula, blamed leaders in the ruling Jubilee Party and ODM for the mess, calling for promoters of the document to be surcharged. “We want the auditor general to audit how much has been spent on BBI. Those officials of BBI, the promoters, excluding the president, should be surcharged and made to pay because they have wasted taxpayers money.”
It is important to note that during the launch of the ANC’s signature collection drive, held after the KICC ceremony, the legislator had supported the initiative and urged party supporters to capitalise on the opportunity to market Mudavadi as a presidential candidate.
After the ruling, Beatrice Adagala (Kakamega County’s women representative) said: “Through the court, we have put down the BBI fiasco and it has died. […] that document was not good for women. It was making us lose [..] gains we [got] as women,” she said, accusing her colleagues in ODM and Jubilee of failing to listen to Mudavadi’s voice of reason. Adagala, like Savula, had initially pushed for the adaptation of the document terming it as a good initiative for unifying the country.
Enoch Wambua, whose Wiper Party had also endorsed the document as ‘good for Kenyans’, also changed his tune. “I want to thank the judges of the Court of Appeal for the decision they made that this thing (BBI) is not good for the country,” he said at a function in his native region in lower eastern Kenya.
The Kitui Senator criticised the initiative saying it was not well thought out as it came too close to a general election, when everything is politicised and viewed with suspicion. “It is now time for the government to focus on more important things and today, the most important is getting resources to fight Covid-19; and then we invest money and make sure the country is ready for a free and fair election,” he said.
The government remains cagey on the amount of money spent on BBI, which many believe runs into millions of shillings. The money was spent on paying members of the BBI taskforce, which collected views from the public; funding BBI popularisation rallies; media advertisements and KSh2m ($18,193) car grant paid to each of the 2,237 county assembly members for them to support the bill.
Kenyans on Twitter
The fallout in the pro-BBI group irked many Kenyans, some of whom criticised the legislators for being selfish and trying to ‘sanitise’ themselves after the court ruling. One of the leaders who faced the wrath of Kenyans on Twitter was Mudavadi. A photo, which was taken when he signed the white board at KICC, trended for weeks with Twitter users reminding him that he fully endorsed the initiative.
Political analyst Edward Kisangani was one of those who posted the photo saying: “How come […] Mudavadi endorsed BBI with his own signature when he knew, as we did, that it was faulty? I don’t understand this.”
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Robert Kiberenge also posted the photo and said: “A rare photo of Mudavadi warning Uhuru of the bad clauses in BBI.”
A rare photo of Musalia Mudavadi warning Uhuru on the bad clauses in BBI pic.twitter.com/2dTWKePbyA
— Kiberenge Jnr (@RobertKiberenge) August 23, 2021
Meanwhile, legislators allied to Ruto were using the judgement to score points. “BBI was about 2022 succession politics which was to stop the deputy president from succeeding Kenyatta through sharing of positions in an expanded executive. It was not about the common man or woman,” Samson Cherargei, Nandi County senator, told Citizen TV.
If the courts had ruled in favor of the pro-BBI group, the turncoats now criticising the document would be the showering the judges with praise, says John Charo, a political analyst. “It is called politics of opportunism, politics of the stomach. Some of the political parties were supporting the document mainly because of the proposal to expand the executive since their leaders would have been the first beneficiaries.”
In fact, some political analysts argue that the proposal to create the post of prime minister and two deputies was aimed at solving the challenge of fielding one presidential candidate against the deputy president. However, now that the proposal is no longer on the table, some pro-BBI politicians have changed tact.
Richard Onyonka, Ford Kenya’s deputy party leader, however dismisses the argument. “It is easy politically to sell the idea that the reason we wanted BBI is to get jobs and put one tribesman here and there; but the truth is that our country has real challenges in terms of how you create an environment where we can learn to trust each other. That is one of our major challenges just like in the United States, the issue of race is a major problem. We cannot run away from it.”
The genius part of Kenya’s constitution is the chapter on leadership and integrity but they (politicians) will not adhere to it. That is why they keep on saying there aren’t permanent friends or enemies in politics. In our situation, there should be.
Kenyatta was equally disappointed with the ruling terming it as a loss for all Kenyans. He blamed his deputy and Ruto’s allies for ‘poisoning the mind of the public’. “It is unfortunate that he (Ruto) is going against the same government he is serving. The issues that we were trying to solve through BBI are the same issues that brought me and him together. If the divisions of 2007 brought us together (Uhuru and Ruto) why can’t we bring more on board. What is the problem with that?”
“It doesn’t deny you a chance ( to be president). At the end of the day, it is not Uhuru who elects [leaders], it is the people of Kenya. I love my country, I love peace and I will continue to advocate for that,” he added.
Ruto has denied the accusations, reiterating that he warned that the process was doomed to fail and that the Court of Appeal ruling has vindicated him.
Constitution not cast in stone
Though BBI had its faults, it was an attempt to cure some of the socio-political challenges the country faces, says Makau Mutua, a professor at State University of New York (SUNY). At some point, Kenyans will have to take a critical look at the current constitution and recommend changes he adds.
“[…] I would like us to have a constitution that is legitimate, that reflects the people themselves; and I think there are some things in the current constitution that do not capture what Kenyans really believe,” he told NTV.
Migai Aketch, an advocate and public law scholar, concurs saying constitutions are there to serve the public and if they don’t, then there should be room for changes. “Constitutions are not cast in stone. Constitutions are supposed to maintain a balance between rigidity and flexibility. We have had a difficult past but we also have a future.”
Ekuru Aukot, Thirdway Alliance Party leader, says Kenyans should concentrate on implementing the current constitution and obeying the laws of the country. “The problem I have with BBI is that there was no attempt to follow the law. It was more of a political process started by two individuals (Kenyatta and Raila) […].”
He lamented that politicians do not respect Chapter 6 of the Constitution which talks about leadership and integrity. “The genius part of Kenya’s constitution is the chapter on leadership and integrity but they (politicians) will not adhere to it. That is why they keep on saying there aren’t permanent friends or enemies in politics. In our situation, there should be.”
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