Why civil society actors face uphill task to block BBI changes

The state machinery and BBI political benefits and goodwill complicate the challenge for opponents

In Summary
  • The civil society has lost the traditional political cover that enabled it to take on past regimes.
  • The State actors have joined forces with the political bigwigs, leaving the civil society exposed.
Members of the Katiba Forum group during a press conference in Nairobi on November 30.
WE SAY 'NO'" Members of the Katiba Forum group during a press conference in Nairobi on November 30.

The anti-BBI forces, including civil society, face an uphill task to block the push to amend the Constitution chaperoned by President Uhuru Kenyatta.

The BBI signature collection train has left the station and proponents say the collection will seal the push for a referendum.

ODM leader Raila Odinga, the handshake and BBI co-principal with Uhuru, is at the centre of the push to amend the Constitution.


For decades, however, Raila was the acknowledged opposition leader, providing what analysts call political cover for civil society to take on the government in place.

Now, the absence of political heavyweights in the anti-BBI force has denied the referendum opposition teams the necessary heft and charisma to bring the process to a screeching halt.

ANC's Musalia Mudavadi, Wiper's Kalonzo Musyoka, Ford Kenya leader Moses Wetang'ula and Cotu secretary general Francis Atwoli are behind the law change bandwagon.

Under the circumstances, anti-BBI proponents are using the courts, planning mass demonstrations and a referendum vote boycott, if necessary.

But many observers say civil society is so fragmented and exposed because it lacks the political cover of towering protector figures. They are now on the other side.

Deputy President William Ruto, the country's second in command, has been flip-flopping on BBI. He appears to have been pushed into a tight corner by the Uhuru-Raila forces. He is at a crossroads but could be setting the stage for battle by demanding five practically unachievable irreducible minimums to back the law change.

Political analysts now say civil society networks are peripheral, though they used to give past regimes hell and agitated for two decades to usher in the 2010 Constitution — which they are now defending under the #LindaKatiba push.

From being a key player in constitutional review to a virtual bystander, civil society's morphing into what some call insignificance threatens to deny Kenyans a strong and influential voice.

There are strong concerns that its disjointed approach to opposing BBI remains lacklustre an unappealing to a majority of Kenyans.

That doesn't  mean there isn't fiery oppositiion, backed by the Catholic Church and others.

Former Kitutu Masaba MP and multi-party democracy doyen Abuya Abuya told the Star that Kenyans have been left on their own by traditional defenders, including civil society.

“When we fought to usher in multi-party democracy, most of us were tortured and brutalised by the Moi era just because we wanted the democracy space to be opened up.

"Currently, we are not seeing the civil society and other actors coming out forcefully,” Abuya said.

The ex-lawmaker said it's necessary for civil society to redefine its hitherto vibrant position as  the cardinal defenders of human rights and democracy.

“This is the time we need to see civil society coming out strongly to defend the Constitution that we promulgated in 2010,” he said.

Political analysts say Kenyans have been left on their own as politicians bulldoze their way in making radical amendments to the 2010 Constitution that largely benefit the political class.

A section of civil society has teamed up with some political elites and have declared they will launch a multi-pronged strategy to stop the BBI process.

The Linda Katiba Movement members believe they have the firepower an wherewithal to block the push to change the supreme law.

The movement has asked the government to implement the Waki report, the Kriegler Report, the Truth Justice and Reconciliation Commission Report and the Ndung’u Report instead of ramping up efforts to change the decade-old Constitution.

On Thursday, civil society activist James Ngondi said civil society's case against amendments to the 2010 Constitution is strong and a  priority. He is among petitioners in the High Court case challenging the BBI process.

“We have said we shall be in the court and the streets to ensure we safeguard and protect the Constitution from being mutilated by a few for political interests,” he told the Star.

Ngondi said, the process to amend the Constitution through the BBI process is not people-driven, but rather a scheme by a few political elites to tinker with the law to increase their own power.

“The process that brought forth the 2010 Constitution was not an easy one. It took the toil and moil as well as sacrifices by civil society and politicians of goodwill to promulgate the law. That Constitution cannot be changed at the whims of a few,” he said.

On Monday, the High Court ruled that the Chief Justice David Maraga will constitute a bench to hear the petition filed by Ngondi and five others. He ruled the petition raised weighty issues.

The petition was filed by Ngondi, influential economist and civil society activist David Ndii, Jerotich Seii, Wanjiku Gikonyo and Ikal Angelei through Law Society of Kenya president Nelson Havi on September 16.

The progress of the petition to the bench was a major victory after the High Court dismissed government efforts to kill the case.

Through a litany of litigation, society groups say they will succeed in stopping what they call an assault on democracy that could presage the return of authoritarianism.

Political risk analyst Dismas Mokua said, however, civil society lacks capacity to mount any threat to a process backed by the government machine and top politicians promising benefits to supporters.

"In the 1990s when some senior church leaders joined forces with civil society, the regime of President Daniel Moi finally had to give in to pressure for constitutional changes,” Mokua said.

Activist and politician Boniface Mwangi has called on Kenyans to protect their sovereignty by opposing the BBI, calling it a ploy by the  political elite to remain in power.

“The President of the Republic of Kenya doesn’t want to go home. He is trying to find a way with his handshake brother Raila Odinga to come back into power,” Mwangi, who in 2017 vied for Staterehe MP,  said.

At least two senior politicians — Narc Kenya leader Martha Karua and Makueni Governor Kivutha Kibwana — are the strongest voices providing political cover to civil society actors to stop the process in court.

Karua has criticised the BBI as a partisan campaign that was not initiated by the people but organised and steered by the state using taxpayers’ money.

“We want those opposed to the BBI to know that they are not alone. It is time to speak out, organise so we may together amplify our voices. We must resist the illegalities that have come along with this attempt to overthrow the Constitution of Kenya,” Karua said.

Karua denied civil society lacks the momentum to mount a successful challenge, saying with determination and focus, Kenyans will emerge winners.

“It is not a question of the numbers. It is about the spirit of  focus to tell those keen on abusing power to push BBI down the throats of Kenyans the truth without fears and with consistence,” the former Justice and Constitutional Affairs minister said.

Civil society groups have lodged at least three court cases, seeking to block the BBI process.

Kibwana wants to Supreme Court to determine whether a bill containing a proposed amendment should only be limited to amendment of a single issue of the Constitution. He says it should not be an omnibus bill.

He also asked whether national, county or state officers — acting in an official capacity — are allowed to use public resources to finance or seek constitutional amendments.

Kibwana argues separate amendments will enable the public  to understand which issues are being amended so they can freely exercise their will and vote yes or no.

“It makes it easy for the public to understand what issue is proposed without being confused about having to choose between too many issues,” the governor said.