CONSTITUTIONAL MOMENT

BBI: The case for the first amendment to the 2010 Constitution

Ever since the advent of multiparty politics in 1991, all but one presidential election in Kenya has resulted in violence.

In Summary

• Whereas it will not solve all the thorny constitutional grievances through a singular amendment, the BBI starts a continuous process of refining our nascent nation's Constitution.

• As a firm believer in reconciliation, President Kenyatta extended the 'handshake' to Mr Odinga as a journey towards our nationhood, with the BBI being a roadmap to a long-term solution.

A delegate reads the BBI report during its launch at the Bomas of Kenya on October 26, 2020.
CONSTITUTIONAL MOMENT: A delegate reads the BBI report during its launch at the Bomas of Kenya on October 26, 2020.
Image: ANDREW KASUKU

President Uhuru Kenyatta's speech delivered during the 57th Jamhuri Day celebrations on December 12 was the clearest indication that the Building Bridges Initiative train had already left the station and that it was on the right track. 

Before this, BBI critics had dismissed it as a ploy by former Prime Minister Raila Odinga to reinvent himself politically and ascend to the presidency using "unorthodox" means. 

As a firm believer in reconciliation, President Kenyatta extended the 'handshake' to Mr Odinga as a journey towards our nationhood, with the BBI being a roadmap to a long-term solution, which would not be an end in itself but a continuous work-in-progress.

The BBI, a culmination of the March 2018 'handshake', has key proposals aimed at ensuring inclusivity as well as end the divisive politics that have continued to dog the country every election.

Constitutional moment

Judging from the violence that permeates our nation every election cycle, change was inevitable. And history tells us that a country frequently in turmoil calls for a constitutional moment.

Ever since the advent of multiparty politics in 1991, all but one presidential election in Kenya has resulted in violence. In the run-up to the 1992 election, ethnic clashes saw the killing and displacement of non-Kalenjin communities from the Rift Valley region. The same scenario was replicated in 1997.

Then in the 2007-08 post-election violence, more than 1,500 Kenyans were murdered and 600,000 were forced from their homes. Bloodshed was also witnessed in 2017, when the Supreme Court, in an unprecedented ruling, nullified President Kenyatta’s election and ordered a repeat of the presidential poll.

Earlier, IEBC IT manager Chris Msando was brutally murdered only three days before the vote. Needless to say, this cycle of electoral violence is affecting both local and foreign investment in the country. Kenyans struggling to make a living also dread every election year as violence either disrupts their businesses or results in loss of property.

It is against this background that the BBI proposes amendments to our Constitution to give Kenyans hope for a better nation. The BBI is the driver to the first amendment to the 2010 Constitution. 

Whereas it will not solve all the thorny constitutional grievances through a singular amendment, it starts a continuous process of refining our nascent nation's Constitution. Further amendments are likely to take place as the country continues to grow.

Fostering inclusion 

It is noteworthy that the BBI incorporates the spirit of inclusion, co-creation, and justice. Regarding inclusion, the Executive has been expanded from two to five top positions, with the creation of the post of a prime minister and two deputy prime ministers. 

The current dispensation, with only the President and Deputy President at the top, has resulted in exclusion in our ethnically diverse nation and become a source of discord. The Kofi Annan-led National Accord of 2008 provided for five positions at the top, and this worked very well. 

Taking cognisance of the fact that five positions at the apex of the Executive are no panacea to inclusion, BBI proposes to reintroduce the position of leader of the official opposition that made significant contribution under the previous constitutional dispensation. 

With a shadow cabinet to boot, s/he will keep the government of the day in check and ensure the development agenda stays on course. An expanded Executive and constitutional recognition of the opposition will go a long way in reducing tensions that escalate into violence every election year.

The BBI Report also urges Kenyans, and particularly the leadership in the public sector, to build systems that embrace merit while broadening inclusivity. It is especially crucial that political parties actively seek out and promote aspirants to elective office who, in addition to their political skills, are competent individuals. This will also be replicated in the public service where all state appointments will be based on merit and show the face of Kenya.

The BBI also proposes legal and political systems that carefully balance between equity and equality. There is no doubt that Kenya has a continuing legacy of marginalisation of some groups and areas, and that this is combined with existing pervasive under-servicing in many parts of the country. Through the BBI, the needs of the marginalised and under-served will be met, as much as is possible.

On the economic front, the BBI focuses on the equalisation of opportunity for all Kenyans, no matter their age, ethnicity, religion, or gender, as the primary aim of economic policy. We can only succeed in building wealth as a nation if we minimise the barriers to opportunity caused by discrimination, undermining of merit, poor education, and unequal service provision.

Co-creation

On co-creation, the spirit of the first amendment is a continuation and strengthening of the devolved system of governance as enshrined in the 2010 Constitution, whose framers envisaged a system where the national government co-creates solutions with county governments. 

Nothing has demonstrated this partnership better than the Covid-19 pandemic, whose mitigation has witnessed tremendous success, thanks to the collaboration between the two levels of government. 

Accordingly, the first amendment proposes to strengthen devolution by increasing fund allocated to counties by the national government from 15 per cent to 35 per cent.

And in order to take development closer to the people, the amendment proposes the creation of a Ward Development Fund. It also proposes a 50:50 representation in the Senate by both men and women in order to place women at the heart of devolution. 

Evidently, the BBI train has already left the station; and it is on the right track.

 

 The writer is Co-chair of the BBI Secretariat and former Dagoretti South MP