NUCLEAR OPTION?

BBI will be implemented, but not through referendum

The President and his brother will have to marshal forces and creativity to change the Constitution without changing it.

In Summary

• Before Covid-19 puts the brakes on the reggae train, the expectation was that BBI implementation via a referendum was a foregone conclusion. 

• That's not the case. And if the vote against the referendum is as strong as it is likely to be and the system rigs the results, violence will likely break out and nobody wants that.

President Uhuru Kenyatta reads the BBI report
BBI: President Uhuru Kenyatta reads the BBI report
Image: /BRIAN OJAMAA

In the Meet Jomo Kenyatta documentary, former Kiambaa MP Stanley Githunguri recounts an interesting story about the First President involving his signature property, Lilian Towers.

According to Githunguri, a business mogul, he had difficulty obtaining approval from the City Council to build all the 16 floors of the building he deemed necessary for his investment to be profitable. Frustrated, Githunguri brought the matter to Kenyatta at his private residence in Gatundu.

As he tells it, Kenyatta asked then Mayor of Nairobi Andrew Ngumba what the problem was.

Ngumba had no answer and so Kenyatta asked Githunguri what he needed, to which Githunguri said a stamp on his drawings approving the plans. Kenyatta ordered Ngumba to bring the stamp to State House and approve Githunguri’s drawings, and that is exactly what happened.

The clamour for the Constitution change following the 2002 elections was largely to clip presidential powers such that Kenyatta and Daniel Moi wielded. While we  achieved and celebrated this through the 2010 Constitution, we left the presidency vulnerable to disrespect and abuse as we have witnessed in the recent past.

Notwithstanding the crippling of the President’s powers, Uhuru Kenyatta has cunningly and effectively found ways to exercise more muscle by other means.

That 'other means' is relying on the weight of the de facto prime minister Raila Odinga. Indeed, a case can be made that Raila is now more powerful and influential than he was as prime minister with a president with whom he was supposed to be co-equal.

Yes, Raila has made it possible to politically finish Deputy President Ruto — for now — but there is a larger battle that lies ahead that all sides must prepare for and come out victorious, or be truly finished.

That battle is BBI implementation.

Before Covid-19 puts the brakes on the reggae train, the expectation was that BBI implementation via a referendum was a foregone conclusion. That is not the case anymore.

All indications are the mood in social media and on the ground is that a referendum to implement BBI will fail — in a landslide.

A landslide no different than that Raila delivered against Mwai Kibaki and the Bomas draft of 2004. The difference is that the victor this time will be Ruto, who is saying, "Yes, you can purge my people in Jubilee, but no you cannot purge my hustler nation."

To be sure, Uhuru and Raila can mount a respectable campaign to have a referendum passed but the fundamentals are such that they cannot get past what is needed to have a plebiscite passed without help from 'vifaranga vya komputa'.

Yes, the system can rig the outcome, but this would not be a wise move for two reasons.

First, if the vote against the referendum is as strong as it is likely to be and the system rigs the results, violence will likely break out and nobody wants that.

Second, even if rigging takes place and somehow there is no violence — or it’s of a garden variety that can be chalked up to ordinary crimes —  one can be certain like the victors in 2005, who also emerged victorious in 2007, the same will play out now and in 2022. This creates a dilemma for the system to either accept the results (which they will not) or rig and risk having 2007 all over.

Given these scenarios, the better way forward is to have BBI implemented in two ways: One, to pass via ordinary legislation all pertinent laws to implement proposals that do not require constitutional amendments. Uhuru and Raila have the numbers to do just that.

For those proposals that could be interpreted to require amending the Constitution, Uhuru and Raila must be creative in how to accomplish this without implicating the Constitution — and it can be done.

In other words, the President and his brother will have to marshal forces and creativity to change the Constitution without changing it.

Deploying what may rightly be called a nuclear option.

Samuel Omwenga is a legal analyst and political commentator