Kenya: Referendum new sticking point in BBI constitutional amendment bill

The bill is part of the Building Bridges Initiative (BBI) taskforce that was created shortly after the 2018 détente between Kenyatta and Odinga.

It followed from the 2017 elections that had reignited political controversy with Odinga accusing Kenyatta of stealing the elections after his campaign for electoral reform.

Kenyatta and Odinga launched the bill on Wednesday 25 November, kickstarting a process that could see the East African nation hold a referendum mid-2021.

Speaking at the launch, Kenyatta said: “The need for change of our constitution has been with us for some time.  It has been evident in the never-ending threat of post-election violence; in the growing feelings that its design lacks inclusivity; and that it promotes unfair and skewed representation, and unfair distribution of national resources.”

READ MORE Kenya’s constitutional fight reveals elite power struggles

He added that the need to “strengthen the 2010 constitution” is imperative in order for Kenya to further progress. The last time such comprehensive constitutional reforms were done was just after independence in 1963.

Revamping the executive and legislature structures

Among its most prominent proposals are changes in the structure of the executive and the legislature, with the creation of a premier and two deputies from the majority party in parliament.

It also proposes to revive the pre-2010 direct link between the cabinet and the legislature, by allowing for ministers (and their deputies) to be appointed from among legislators. Other proposals include:

• Creating 70 new electoral constituencies, which will increase the country’s legislature to 360 members. Part of the changes to legislature also include an affirmative action formula meant to solve a two thirds’ gender rule embedded in the 2010 constitution.
• Creating an independent judiciary ombudsman, meant to investigate and prosecute complaints against judicial officers; one of the more contentious proposals.
• Several state measures to protect the economy, including protecting intellectual property rights, supporting businesses, and promoting science and technology in production.

According to a timetable contained in the bill, most of the changes will be done in six months to two years after the referendum. The timeline means that most of its implementation would fall in the remainder of Kenyatta’s term; just in time to shape the 2022 General elections.

Ruto vs Odinga

While Kenyatta’s deputy, William Ruto, was missing from the bill’s launch, he has said in several tweets since that some of his earlier recommendations were included in the final bill. Ruto is also pushing for an uncontested referendum, a fairly new sticking point in his discomfort with Odinga’s unofficial presence in government.

I've CONSTITUTIONAL duty to assist my boss,the PRESIDENT.We've made IMPROVEMENTS to BBI post bomas. Now working on CONSENSUS for kenyans to have REAL CHOICES to decide/vote while avoiding yes/no,all/nothing DIVISION.We avoided lose-lose we can overcome win-lose to achieve WIN-WIN

— William Samoei Ruto, PhD (@WilliamsRuto) November 28, 2020

But in response to a national headline implying that Ruto was “cornered”, he said the bill had achieved “tremendous progress”, noting that a non-divisive vote would be the best option on deciding the final version.

READ MORE Kenya: Building Bridges Initiative deepens Ruto-Odinga rivalry

Odinga, on the other hand, stresses that a referendum process must have two sides, questioning the wording of Ruto’s recommendation. “I need to be taken to a political school and receive lessons on what this so-called non-contested referendum is. Then why do have it if it’s non-contested?” asked Odinga.

Opposition to the bill

One million signatures of registered voters are required to back the draft bill. On 30 November, the secretariat navigating the bill through the constitutional safeguard measures announced that it had collected more than 1.5 million signatures from registered voters.

The signature collection is just the first stage of such a proposal’s life, as the signatures have to be verified before the bill is sent to the 47 county assemblies.

In the absence of clear opposition from Ruto, who provided political firepower to a similar dissenting campaign a decade ago, several independent politicians and civil society leaders are laying the groundwork for an opposition.

Prominent names among them include economist and public intellectual David Ndii, who was one of Odinga’s strategists in 2017. Under the banner of Linda Katiba (Protect the Constitution), Ndii, politicians Martha Karua and Boniface Mwangi, and activists Jerotich Seii and Daisy Amdany are working to garner popular support to oppose the bill.

• “Our constitution is fine,” Ndii said at a press conference in Nairobi on 30 November. “It has survived ten years of various types of assault. The independence constitution was not so lucky.”
• At least three county governors have also filed for advisory opinions from the Supreme Court seeking answers on questions that might affect the bill itself or its timelines.

The BBI bill targets over 78 matters contained in 13 out of 18 chapters of the Constitution. Should citizens vote on each of the 78 issues or entire omnibus Bill? Can the latter vote be fair due to the impracticability of effective county civic education in such scenario? pic.twitter.com/GBya3Jk5uH

— Kivutha Kibwana (@governorkibwana) November 30, 2020

Bottom line

Ruto and Odinga are widely considered favourites to succeed President Kenyatta when his last term expires in 2022. While the bill is partially Odinga’s brainchild, the election to succeed Kenyatta is still 20 months away and much could change between now and then.

Part of Ruto’s game plan appears to be to let the process continue on with his lukewarm support. If it succeeds, then it would only make building a coalition in 2022 easier because he would have a wider range of state positions to offer, and none of the political baggage that would come with opposing it. If it fails, then it would either give him ample political ammunition against Odinga in the elections, or none at all.

READ MORE Kenya: Ahead of the 2022 polls, what options does Kenyatta really have?

But the absence of a prominent political figure in the opposing side could also elevate another politician not among the ‘Big Three’ into a national figure capable of mounting a challenge to both Ruto’s and Odinga’s plans for 2022. It is, after all, exactly how Ruto built a national profile by opposing the 2010 constitution, which he built into a political party and wound up becoming Kenyatta’s number 2.