REFERENDUM

Truth, fallacies and misconceptions about BBI

There are several proposals in the report that do not need even Parliament action to implement

In Summary

• One common misconception that is also perpetuated in the media is a false belief that the final report is what will become law. This is not true.

• Raila is the quintessential recipient of love and hate in almost equal measure, though he controls a good half of the country.

Deputy President William Ruto, President Uhuru Kenyatta and ODM leader Raila Odinga at the launch of the Building Bridges Initiative report at Bomas of Kenya on October 26, 2020
Deputy President William Ruto, President Uhuru Kenyatta and ODM leader Raila Odinga at the launch of the Building Bridges Initiative report at Bomas of Kenya on October 26, 2020
Image: PSCU

The personification of Kenyan politics to Raila Odinga is astounding.

Arguably, no country has had one man become such a focus of love and hatred and for such a prolonged time than Kenya.

Raila is the quintessential recipient of love and hate in almost equal measure, though he controls a good half of the country.

It is no surprise, therefore, when those who oppose the BBI keep repeating like a broken record that BBI is all about delivering Raila the presidency through the backdoor. This is a lie.

 

Truth is, Raila has demonstrated time and again that he has what it takes, and he has, in fact, won the presidency at least twice only to be denied. The only people who publicly dispute this are the same ones opposed to the BBI because of Raila’s role.

Perhaps an even more encompassing truth is that BBI is what President Uhuru Kenyatta and his brother Raila said it is from the outset of formation of the taskforce to shepherd it: An effort to examine and present solutions to address a myriad of problems, including ethnic antagonism, lack of inclusivity, corruption and devolution.

These are all ills that have bedevilled our country since Independence.

Nowhere in the gazette authorising formation of BBI is Raila’s name mentioned and neither is his identity or name implied in the document.

Rather, the mandate of the BBI task force was to make practical recommendations and proposals designed to address various points of contention identified by Uhuru and Raila following their historic handshake in March 2018.

It is also not true that BBI is designed to stop Deputy President William Ruto from ascending to the presidency.

Okay, a case can be made that it is, but that is neither here nor there if meeting BBI’s objectives produces the effect of stopping Ruto from succeeding Uhuru.

One common misconception that is also perpetuated in the media is a false belief that the final report is what will become law. This is not true.

First, there are several proposals in the report that do not need even Parliament action to implement as the President can operationalise them through executive powers.

The President himself said he is aware some of the proposals only need administrative action to be effected.

 

Second, when it comes to restructuring the government as proposed in the report, that requires a referendum, not just a vote in Parliament.

Changing the Constitution via the parliamentary option requires a referendum if the change “relates to” any of the topics listed in Article 255(1) and two certainly do therefore require a referendum.

For example, an argument can be made that creating a prime minister position “relates to” democracy — a national value, which in turn requires a referendum.

A legal case can be made, however, that a referendum can be avoided altogether and to still put into effect what BBI proposes in restructuring the government via Parliament.

This is the wild card Uhuru and Raila have in case someone wags his tail too strongly as to cause problems passing BBI through a referendum.

Not likely, but it is important to know the handshake partners have options.

The current iteration of the BBI report has been put together after countrywide consultations and input received from various stakeholders.

The President urged Kenyans to read the report but, truth is, very few will ever read it.

Any further formalities should be dispensed with and let us put this thing in a referendum and see whether those opposed to it have what it takes to defeat it.

They do not so expect major changes to come ahead of 2022 for the good of the country.

Samuel Omwenga is a legal analyst and political commentator