How BBI court order could jolt June referendum push

The High Court emergency injunction could throw into disarray and stall the push for June BBI referendum

In Summary

• Politicians and analysts say should the referendum bid fail by June, then it will be difficult to go to a public vote less than a year to the 2022 General Election.

• BBI secretariat co-chair Dennis Waweru remains optimistic that the order would not bar county assemblies from proceeding with  processing the BBI Bill.

President Uhuru Kenyatta and ODM leader Raila Odinga during the launch of the BBI Report on November 27, 2019..
HANDSHAKE PAIR: President Uhuru Kenyatta and ODM leader Raila Odinga during the launch of the BBI Report on November 27, 2019..

The order temporarily barring the IEBC from conducting a referendum could jolt plans by President Uhuru Kenyatta and ODM leader Raila Odinga to have a plebiscite by June.

There are fears that the legal process in court could stretch to the Supreme court, significantly disrupting the BBI proponents timeliness.

A late referendum might disrupt the duo's succession game plan. The BBI outcome, its benefits and spoils, are seen as a  major tool in their campaign against Deputy President William Ruto.

The BBI law change promises additional key positions at the helm of the Executive. The prime minister, two deputy prime ministers and leader of official opposition as some of the sweeteners for the bigwigs who stand to gain if BBI is passed.

The DP has rubbished the BBI process, terming the referendum push a scheme by the dynasties to perpetuate their stay in power. He has also called it a waste of time and money when Kenya faces pressing issues of Covid, jobs and debt.

He has argued it is time for the ordinary Kenyans — whom he has branded hustlers —to rise to the helm of the country's political leadership.

The compelling hustler narrative has snowballed into a monumental political scare for Uhuru and Raila, who have ganged up to block Ruto's bid for State House.

Ruto's camp got a major reprieve when the High Court blocked the Independent Electoral and Boundaries Commission from conducting a referendum until at least seven cases filed against BBI are heard and determined.

It has all along been suspected that the DP's camp was behind some of the cases in court, as some petitioners share his anti-BBI stand and call for questions to be answered.

On Thursday, lawyer Danstan Omari warned that the BBI reggae could be stopped by the 'courts' given the protracted legal battle looming at the Courts of Appeal and Supreme Court.

"It is unlikely that the three layers (High Court, Court of Appeal and Supreme Court) would be completed before the end of the year.

He said depending on the outcome of the seven cases at the High Court, either party would be at liberty to appeal the decision with anti-BBI forces likely to fight all the way.

In another blow, the High Court brakes for a vacation from April to May, a scenario that would also eat into the pro-BBI timeliness.

However, Raila says the court injunction will not alter the BBI timelines and the process will proceed as scheduled because "the Judiciary knows the urgency of the BBI" and will make what he considers the correct and timely decisions in favour of the referendum.

“The court just said IEBC should not proceed with the process of the referendum until they make their ruling but the courts also live in Kenya, they don’t live in heaven.

"They understand the urgency of the matter. We know the courts are going to be reasonable and will give this matter the importance it deserves,” Raila said on Wednesday.

Politicians and analysts say should the referendum bid fail by June, then it would be difficult if not impossible to take the country to a public vote less than a year to next year's August General Election.

Constitutional lawyer Bobby Mkangi argued that the court order has slowed down the pace with which the BBI proponents wanted to hasten the process.

"Definitely that is a blow to those who want to hasten the referendum with the political capital that would be accrued linked to the 2022 polls," Mkangi said.

He observed that it was clear that the BBI proponents have an agreed timeline that they were pushing the referendum to fit in so as the outcome could inform the 2022 alignment.

The Building Bridges Initiative Secretariat, the team sponsoring the push to amend the Constitution, is working on a timeline whereby the Bill would be approved by 24 assemblies by the end of February.

The Star has established that despite the court order, the Secretariat hopes that at least 24 county assemblies would have approved the bill by March 1.

The Constitution requires that at least half of the 47 assemblies - 24 - need to approve a constitutional amendment bill for a referendum to pass, regardless of the verdict in Parliament.

After the assemblies' anticipated approval, the Secretariat will ask speakers of the assembles to certify passage to the two speakers of Parliament.

On Tuesday, BBI secretariat co-chair Dennis Waweru was optimistic the court order does not bar assemblies from proceeding.

“The assemblies have not been barred from proceeding with their constitutional mandate to process the Bill. Once we hit 24 county assemblies we won't need to wait for all 47 assemblies to vote," Waweru told the Star.

However, Kimilili MP Didmas Barasa, a key Ruto ally, warned assemblies should be wary of the High Court invalidating their approvals.

“The court was clear that such a process should not be rushed at any stage. Therefore, the import is that going forward, the road to a referendum - which we have been warning the country against - is bleak," Barasa said.

The Tangatanga politician told the Star the court order indicates the issues raised by petitioners are weighty and have the potential of declaring the whole process null and void.

Former South Mugirango MP Omingo Magara and PDP party leader said it's necessary to build consensus on the BBI process to avoid a divisive referendum.

“Should the country and main political players have built consensus on the contested issues in the Bill, there would not have been any need for anyone to dash to court,” Magara said. His party supports the DP.

The politician said the court has dimmed hopes of a speedy referendum pushed by BBI proponents who called impervious to contrary opinions.

The country is pressed for time ahead of the 2022 General Election with experts warning that critical electoral reforms are in abeyance as the focus turns to the referendum.

The Star has established that Uhuru and Raila have instructed the BBI Secretariat to pull out all the stops and ensure at least 24 assemblies approve the BBI bill by March 1.

A June referendum would allow enough time to prepare for the 2022 General Election. There has been fear the politics of the two would be linked to personalities.

"We want to finish the approval in the assemblies by the end of the month," Waweru said.

"Tell me which MCA would not want to have the ward development fund? Tell me which governor would oppose more resources to counties? That is why we hope to have all assemblies approve BBI," he said.

Speaking to the Star on phone, ODM national chairman John Mbadi also confirmed approval by assemblies should be completed in two weeks, with at least 24 counties, or more.

Nominated MP Maina Kamanda, a BBI stalwart, said the assemblies have no justification to reject the bill.

"In fact, MCAs are excited that they are going to have their own fund so and financial independence to operate without relying on governors' handouts," he said.

He went on, "The plan is to conclude the referendum by June," he said.

Raila’s home county of Siaya has become the first assembly to approve te Bill.

A number of counties have also subjected the Bill to public participation and will consider it next week.

Some counties planning to consider the Bill this coming week include Busia, Kisumu, Vihiga, Kakamega,  Migori and Homa Bay counties.

BBI proponents are pushing for Parliament to process the Bill two weeks after it is received by 24 assemblies.

Lugari MP Ayub Savula on Thursday said they will give priority to the Bill to ensure an early referendum. 

“We want to pass the referendum procedure bill sponsored by the Justice and Legal Affairs Committee to give us the timelines because we don’t have timelines,” Savula said on the phone.

Mbadi also told the Star they will push for a two-week timeline to take the Bill to the people as soon as possible.

Ordinarily, a Bill before the House takes a maximum of 90 days for it be fully processed and moved to the next phase.

However, the Suba South lawmaker noted that the House Business Committee will deliberate with a view to waive and deliberate on it within two weeks or one month at most.

“The House Business Committee will discuss the 90-day requirement in the Standing Orders, whether, on such a constitutional amendment bill, we need the 90 days,” Mbadi said.

 “I believe we can waive the requirement because it is an initiative from the public,” he said.