Why BBI collapse could trigger fresh 2022 realignments

The 'death' of BBI could send political big guns back to the drawing board and trigger fresh realignments ahead of the 2022 General Election.

Key politicians scheming for the presidency hoped to captalise on provisions of the bill, especially the expansion of the Executive, to build broad-based national alliances.

But in a landmark judgment that has shaken the political landscape, a five-judge High Court bench scuttled the BBI process, terming the three-year quest to amend the Constitution illegal, unconstitutional, null and void.

The government has given notice of appeal.

Before the surprise judgement, alliances had began to take shape with ANC leader Musalia Mudavadi, Kanu chairman Gideon Moi, Wiper's Kalonzo Musyoka and Ford Kenya's Moses Wetangula teaming together.

ODM chief Raila Odinga was also seen to be hoping to hinge his fifth stab at country's top job on new powerful jobs in the expanded Executive.

Raila has been courting former presidential candidate Peter Kenneth, ex-UNCTAD secretary general Mukhisa Kituyi and Makueni Governor Kivutha Kibwana.

Besides, Raila's two deputies Mombasa Governor Hassan Joho and his Kakamega counterpart Wycliffe Oparanya were angling to play national politics.

Former National Assembly Majority Whip and Mumias East MP Ben Washiali said serious realignments are expected in coming months “because it is now evident that the next General Election will be held under the current Constitution.”

“Those who had been promised positions like prime minister, deputy prime ministers, cabinet ministers and governors who were preparing to go back and run as MPs to appointed will have to redo their plans because that amendment process is no more,” he said.

The Constitution only offers two powerful positions at the heart of the Executive: the President and Deputy President posts that controversial political analyst Mutahi Ngunyi metaphorically calls "a Ferrari presidency". 

However, BBI was creating three additional positions.

These are office of the prime minister, who would be the leader of government business in Parliament, and two deputies.

The constitutional change would also see MPs appointed to the Cabinet. This would have heralded the return of powerful ministers.

The expansion of the Executive and the introduction of Leader of Official Opposition as well as some ministers from outside Parliament was seen as instrumental in shaping key 2022 alliances.

Some of the provisions appeared to offer governors who would be completing their two terms political a lifeline, with opportunities to serve in the national government.

However, with the law change initiative popularly known as the BBI facing legal headwinds and possible collapse, 2022 presidential contenders have been sent back to the drawing board.

On Sunday, Tongaren MP and National Assembly Deputy Minority Whip Eseli Simiyu admitted that the end of BBI would herald a "political earthquake that would change the 2022 dynamics.”

“In case the BBI doesn't go through and the anticipated positions in BBI are not there, then definitely expect major realignments ahead of 2022,” said the Ford Kenya MP.

The MP said the High Court ruling had largely jolted 2022 presidential aspirants' political plans, saying without BBI some dreams might come to a "screeching halt.”

“We would be in for rude shocks including strange bed-fellows. Should BBI collapse then expect serious alignments," the MP said.

Ikolomani MP Bernard Shinali said those whose hopes for top leadership positions in 2022 were anchored on the passage of BBI will have to go back to the drawing board.

“They will have to restrategise based on the prevailing circumstances. You can only work with what you have,” the MP said.

President Uhuru Kenyatta himself has been rooting for an expanded Executive to end what he says is a winner-takes-all system that has seen Kenyans fighting every election cycle. 

Analysts say the One Kenya Alliance of Mudavadi, Moi, Kalonzo and Wetang'ula could be the biggest casualty in case BBI dies.

“The biggest losers if the BBI bill dies would be the One Kenya principals who were angling on the additional slots at the national level to build their coalition and share power,” said Kisii Deputy Governor Joash Maangi.

Maangi maintained that the country's political landscape should ready itself for a major shake up after what he termed as the "irreversible death of BBI".

"From what I am seeing , it is like it would take a miracle to overturn the High Court ruling. As things stand, politicians are back to the drawing board," he told the Star on phone.

“Raila is correct by warning against those disparaging courts. Those aggrieved should exercise their right of appeal," he said.

But National Assembly Majority Chief Whip Emmanuel Wangwe expressed optimism that the BBI process remains on course despite the "small hiccup".

“I'm certain that the 235 MPs I marshaled in Parliament to pass the Constitution of Kenya (Amendment ) Bill 2020, the 47 county assemblies and Kenyans who signed in support of the process was not in vain,” he told the Star on phone.

Nyeri Towm MP Ngunjiri Wambugu admitted that the BBI process was definitely going to lead to political realignments ahead of 2022 but remained optimistic that "reggae" is still on.

"I hope that the Court of Appeal would be cognisant of the fact that their decision will not be in a vacuum as BBI has a bearing on the 2022 polls," he said.

The Uhuru ally said the appeal that will be lodged in court today will be critical in determining if the BBI process will impact on the 2022 polls or not.

"The court must be aware that there are legal timeliness that would effect the 2022 elections should determination on the BBI process be delayed,” he said.

But political and governance analyst Javas Bigambo said should BBI be blocked, then it would mean that Uhuru and Raila's plans to sway 2022 succession politics will collapse.

“It will only expand room for political wheeler-dealership for purposes of 2022 negotiations and creating fresh alliances to capture power,” said the analyst.

He went on : “If this proposal does not go through as it looks, politicians must embrace new approaches as a different 2022 arithmetic will have to be adopted. The room at the top will not accommodate all of them.”

Ganze MP Teddy Mwambire said they support the decision by Raila to appeal against Thursday's High Court judgment.

“We are heading to court and we believe we will get a reprieve. In fact, people should prepare for a referendum,” he said.

Kisauni MP Ali Mbogo, who has also declared interest to run for Mombasa governor, said the appeal against the judgment is the only way to go.

“They will go to the Court of Appeal, if they do not win, they shall still move to the Supreme Court. Right now, we respect the court’s decision,” he said.