The shocking ruling by the High Court on the Constitutional Amendment Bill could deal a staggering blow to 2022 presidential hopefuls, if higher courts uphold the decision to slam brakes on the BBI train.
The Constitution of Kenya (Amendment) Bill, 2020 expands the Executive by creating extra seats that those eyeing the country’s top job could dangle to ‘big communities’ to win their support.
Unlike the current Constitution that has only offers the President and Deputy President powerful posts, the bill creates the influential office of Prime Minister, who will be the leader of government business in Parliament, and two deputies.
In addition, the Bill also proposes the position of the Official Leader of Opposition.
The extra seats could shape formation of political alliances as they provide an opportunity for those keen to succeed President Uhuru Kenyatta to net big wigs and by-extension, their communities.
This, according to political observers, explains why all 2022 presidential aspirants – perhaps with the exception of Deputy President William Ruto – have thrown their weight behind the constitutional changes.
“It is a big blow to aspirants. It creates a big challenge to all the presidential candidates. Forming a coalition is not easy, if you don’t have seats to dish around,” political analyst Martin Andati said.
He added that considering the history of political Memorandum of Understandings – where politicians have deceived each other – there is a lot of mistrust that only can be cured by the ‘extra seats.’
ODM leader Raila Odinga, seen as DP’s main opponent in the upcoming polls – though he has not publicly declared his interest – is a partner in handshake partner with the President that birthed the bill.
University don Macharia Munene said that while top presidential contenders – Ruto and Raila – may not be affected by virtue of their popularity, those who were angling to form alliances with the hopes of landing the seats, have been hit.
On Friday, ANC leader Musalia Mudavadi became the first high file politician to criticise the judgement that appears to have thrown a spanner in the works for most hopefuls.
Mudavadi said the five-judge bench did not consider public interest in their judgemnt that rendered the constitutional amendment process as unconstitutional, illegal, and null and void.
“Even if we have a court, we must always remember there is public interest. Even if they render the judgment, they must do so as they consider public interest.
The ANC leader, who supports the Bill, fell short of trashing the judgment as political.
“I did not read the entire judgement but the small part I read, there are those that are based on the law but there are other areas that appears politics was at play,” he said in Kilgoris, Narok county, on Friday.
Mudavadi is a principal in the One Kenya Alliance that also brings together Wiper boss Kalonzo Musyoka, Ford Kenya’s Moses Wetangula and Kanu chairman Gideon Moi.
The principals are all supporting the bill.
But in a statement on Saturday, Mudavadi appeared to make a U-turn and instead urged the promoters of the bill not to disparage the judges but instead accept the ruling.
This even as he called for an inclusive dialogue to remedy the 'baby' and the 'useful' proposals contained therein.
"It is, therefore, imperative from the onset, we accept and respect the decisions of our courts. Where we feel aggrieved, we should prefer an appeal rather than disparage the courts," he said.
Mudavadi said the country should not throw out the baby with the bathwater. He said all leaders should return to a conversation and restart an inclusive national dialogue styled on the format of the 2002 IPPG arrangement.
"The national dialogue should be to relook at the Bill and identify those issues - like restructuring the IBEC to make it fit for purpose," he said.
In a landmark judgment, a five-judge High Court bench led by Justice Joel Ngugi scuttled the BBI process, terming the entire process to amend the Constitution illegal, null and void.
The judges cited about 20 grounds for nullification of the process, including a declaration that the BBI task force that engineered the law change is an illegal entity.
They said, for instance, Uhuru made a fatal legal mistake in attempting to change the Constitution through a popular initiative, an avenue available only to ordinary Kenyans.
The judges also ruled that IEBC lacked quorum as stipulated in law for purposes of carrying out referendum preparations, including verification of signatures.
Though the promoters of the bill have vowed to appeal the ruling, some lawyers argued that it would be a miracle for the Court of Appeal to overturn all the grounds cited by the High Court.
“The chances of success at the Court of Appeal are nil. The reason is simple. For the referendum to happen, the government will have to succeed in overturning all the 20 grounds,” said lawyer Joel Kimutai Bosek.
