On 31 March when the Supreme Court declared the BBI document unconstitutional, wild celebrations erupted in Rift Valley’s Eldoret town.
To many residents in this bustling town, the collapse of the initiative – aimed at making fundamental changes to the constitution – was viewed as an emphatic victory for Deputy President William Ruto, who was one of its fiercest critics.
“I am very happy that the Supreme Court has officially buried BBI, which was meant to stop Ruto from becoming president. Now the path is clear, and our son will be Kenya’s fifth president,” said Jacob Kiprono, one of the residents who turned up to celebrate the ruling together with legislators allied to Ruto.
Hundreds of kilometres away, in Raila’s home county of Siaya, residents were disappointed. They had hoped that the Supreme Court would overturn the Court of Appeal verdict, which declared the BBI unconstitutional.
“We had high hopes that the Supreme Court would deliver a favourable judgement to allow the process to continue. We are disappointed, but we will live to fight another day,” said Gregory Oloo.
A country divided
The initiative was meant to bring the country together, but it had the opposite effect. It ended up dividing the country further: one side celebrated while the other became disheartened.
The BBI process to amend the constitution was a means to capture power.
The apex court faulted President Kenyatta for opting to change the constitution through the popular initiative, which it argued is a preserve of ordinary citizens.
The judges also deemed it illegal to attempt to create 70 constituencies, saying it is only the Independent Electoral and Boundaries Commission (IEBC) that is mandated by law to undertake such a task.
On the issue of public participation, the apex court ruled that the exercise was inadequate and wanting, especially the roll-out of the proposed changes.
Riding on the ruling, Ruto and his allies went for the jugular. They demanded that President Kenyatta and Raila apologise to Kenyans for initiating the “BBI nonsense”.
“The least I expect from the promoters of BBI nonsense is for them to own up and apologise to Kenyans four wasting our four precious years spending billions of public resources on a process that was illegal and unconstitutional,” said the deputy president.
Ruto’s allies were relieved that the Supreme Court put a stop to the ‘BBI reggae’, which would have given their rivals in the Azimio la Umoja coalition – led by Raila – the much needed momentum for the August general election.
In fact, in the early stages, before the High Court delivered the first blow, some of Ruto’s allies were blowing hot and cold on the BBI.
- For example, the majority of the county assemblies in the deputy president’s stronghold of Rift Valley voted in favour of the document because some of the proposals were beneficial to counties.
- In addition, some of the legislators allied to Ruto also voted in favour of the constitutional amendment bill when it was tabled in parliament.
If the apex court would have allowed the ‘BBI reggae’ to continue, Ruto’s presidential bid would have been in jeopardy, says political analyst John Charo.
“Ruto must count himself very lucky because the election narrative would have completely shifted to BBI and this would have boosted President Kenyatta and Odinga ahead of the general election,” says Charo.
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In fact, the game plan by President Kenyatta and Raila was to use the BBI to isolate Ruto by expanding the executive to accommodate regional kingpins like Amani National Congress (ANC) party leader Musalia Mudavadi, Forum for Restoration and Democracy Kenya (Ford Kenya) party leader Moses Wetangula and Wiper Democratic Movement (Wiper) party leader Kalonzo Musyoka.
The BBI game plan
Analysts believe had the BBI process continued to its conclusion, the game plan would have worked well for Raila, who would now be waiting to be elected president come 9 August.
“The proponents had succeeded in isolating Ruto during the early stages as all the regional kingpins were in the Uhuru-Raila corner and BBI was gathering momentum at the grassroot level. It is only after the High Court delivered its ruling that some of the politicians started to change the tune,” says Charo.
President Kenyatta and [Raila] Odinga must go back to the drawing board to find a formula for satisfying competing interests…
The judgement now leaves President Kenyatta and Raila with a major challenge of finding a new message that can help rally their disappointed supporters and counter the hustler narrative championed by the deputy president, which is gaining ground in counties.
It also leaves Kenyatta and Raila with a major headache on how to keep the 20-plus political parties in the Azimio la Umoja coalition united and content.
“President Kenyatta and [Raila] Odinga must go back to the drawing board to find a formula for satisfying competing interests or else the grand coalition will have it rough on the campaign trail because the deputy president will continue reminding Kenyans about the wasted time and resources on BBI,” says Charo.
Even before the BBI dust has settled, the jostling over the deputy president position is already playing out in public.
While Wiper party leader Musyoka insists he is the obvious choice for the position, Jubilee party legislators from Mt. Kenya maintain that Raila’s running mate must come from the vote-rich region if Azimio is to have a chance of defeating Ruto’s Kenya Kwanza alliance at the ballot.
Basic structure doctrine quashed
Aware of the negative impact the ruling has caused, Raila is trying hard to rally his supporters to stay the course, saying that the Supreme court’s ruling that no part of the constitution is unamendable is still a victory for BBI proponents.
The judges quashed the verdicts by the High Court and the Court of Appeal that upheld the basic structure doctrine, pushed by the anti-BBI group, which stated that there are parts of the constitution that cannot be amended.
Lawyer Tom Ojienda, a member of Raila’s Orange Democratic Movement (ODM) party, says the ruling has opened the doors for changes to the constitution, adding that the Azimio team will come up with an even better document once it forms the next government.
“The decision on the basic structure is a win for Kenyans. The Supreme court has only given us half time. The second half is coming,” says Ojienda.
The coalition has promised to bring back BBI within 100 days once it forms the next government, insisting that the majority of Kenyans support the initiative, and their wishes will have to be fulfilled.
However, Elias Mutuma, one of the lawyers who represented the civil society in the court case, maintains that BBI is dead and prospects of reviving it are almost nil.
“The BBI process to amend the constitution was a means to capture power. I don’t see William Ruto wanting to amend the constitution to share power or Raila Odinga [doing the same] for that matter. There will be no motivation for it,” says Mutuma.
Charo warns that the collapse of the BBI has left Raila badly exposed to criticism from his rivals who are already using the ruling to portray him as a leader who is only interested in creating positions for politicians and not caring about ordinary citizens.
“[Raila] Odinga must now change tact and focus more on issues affecting ordinary Kenyans and how the Azimio coalition plans to tackle them if it wins the elections or else he might find himself losing the propaganda war.”
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