CRITIQUE

The Building Bridges Misdiagnosis

Kenya needs not new laws; it needs implementation of existing laws.

In Summary

• Let us protect our institutions. They are the ones we will run to when those in power misuse their authority.

• Strong institutions are what Kenya needs to have peaceful elections. Not BBI.

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

“Nobody can stop reggae!” A misused slogan that has echoed a lot in our ears in the recent past. 

Why do I call it misused? You ask. Anyone who cares to understand history will know that the Rastafarians were against the oppression and slavery they were subjected to, and their music was one medium to permeate the ideas of emancipation.

Reggae was a movement that sought to derogate from the prejudiced, capitalist, corrupt world (the very things BBI wants to drown us into) and instead move towards freedom.

“Nobody can stop reggae” was thoughtful citizens telling the oppressors that they won’t stop their fight for a better world. Not the opposite. How does the BBI take us back there? I will explain.

The Building Bridges Bnitiative was launched about three years ago, with the patrons selling the idea that they wanted to end the cyclic election violence that occurs in Kenya. It is indeed true that the election season tends to be marred with fear and apprehension. Take for instance, the reluctance of investors to take up business opportunities, opting to "wait and see" how it unfolds.

But do the BBI proposals solve these issues? I guess not.

Before we proceed into the merits of the document, let us not forget that we are in the midst of a global pandemic.

A section of the report reads: “Kenyans decried the fact that Kenya lacked a sense of national ethos and is increasingly a nation of distinct individuals instead of an individually distinct nation.”

Does it make sense to spend Sh12 billion on a referendum when Kenyans are dying and businesses suffering due to the pandemic? Doctors are decrying lack of PPEs, the country has a shortage of oxygen, not everyone has access to the vaccine, Kenyans are losing jobs, and all we care about is a referendum? Very selfless of us indeed.

Now to its contents. To begin with, the main cause of election violence is when one faction feels the election was interfered with and they lost unfairly. Time and again, those who have been known to lose elections have said, “If we lose the election, we will accept the results, but only if it is a free and fair.”

Which then begs the question, does having electoral commission commissioners who represent political parties enhance the credibility of our elections?

Second, an independent and impartial Judiciary is vital for a peaceful society. Since the annulment of the 2017 presidential election, we have witnessed constant attempts by the Executive to frustrate the judicial arm of government.

Most notably being budget cuts. Some ministries have larger budgets than an entire arm of government. Nothing in the BBI deals with this. Instead, we see a further attempt by the Executive to try and take control of the Judicial Service Commission through the introduction of the post of a Judiciary Ombudsperson.

Having more presidential appointees in the commission is bad enough, not to mention that the Ombudsperson is duplicating the roles of the JSC. For instance, the JSC receives and investigates complaints against judicial officers. If need be, it disciplines them by removal from office or otherwise. Why then should we have a Judiciary Ombudsperson who receives and investigates complaints against judges?

Post-2010 we hoped that we would see prosecution of high-profile cases. This has still remained a charade. Otherwise, how else do you explain why the disgraceful Covid billionaires are yet to be prosecuted?

At times, the Office of the Director of Prosecution has been seen as though it targets those who are not ‘politically correct’. For instance, when there were allegations levelled against Deputy Chief Justice Philomena Mwilu, the zeal with which the DPP followed up on the case was one that had and still has never been witnessed again. Look at the handling of the infamous Kemsa heist. The BBI tells us one of its main goals is to fight corruption. How will it do so when it makes no effort to empower the ODPP?

THE INCLUSIVITY LIE

The proponents have told us that having five seats at the top will solve ethnic violence, because all communities will feel represented. First, having your so-called ‘political kingpin’ in power is no guarantee of a better life.

To date, there are residents of Gatundu who do not have roads or electricity, despite the region having had two presidents. Two, what is the guarantee that those appointed to these positions will be from the so-called ‘Big five’ communities? What provisions compel them to choose people from other regions? One might as well decide to appoint their tribesmen and women.  And Kenya has over 40 communities? How will the other more than 35 be or feel represented?

The removal of woman representatives from the National Assembly to the Senate is a blow to affirmative action. I cringe a little, every time I see Woman Reps campaigning for this. The National Assembly passes bills that involve weighty matters. This would, therefore, silence women’s voice on these issues. Kenyans also do not want more MPs. There’s a general feeling that we are already overrepresented. 

In any case, it is the IEBC under Article 89 (2) of the Constitution that has the mandate to review boundaries of constituencies.

GLIMMER OF SENSE

It would be unfair for me not to recognise that the BBI has a glimmer of sense, for instance the proposal that LSK representatives in the JSC should not practice in courts during their tenure. This is noble as it averts conflict of interest.

 It’s, however, not compelling enough and unfortunately, we have to either take the report as a whole, or reject it in its entirety. 

Having outlined those arguments, it is imperative to note that the law does not exist in vacuo. We cannot close our eyes to the fact that this bill came into existence through the handshake between President Uhuru Kenyatta and ODM leader Raila Odinga — a move political pundits have interpreted as a strategy to keep Uhuru in power after the 2022 General Election.

In my informed opinion, guarded by Article 32 of the Constitution, President Kenyatta has failed miserably in leading this country. I can mention a hundred and one examples, but you only need to open your eyes to see it. What then does he still have to offer us?

If Raila wants to vie for the presidency, he can seek  Uhuru's support without defiling the Constitution. More importantly, no one should feel entitled to the presidency. Take the example of the US, when Hillary Clinton lost the 2016 election to Donald Trump. Despite the feelings of indignation that were felt world over, she did not keep telling us she has one more ‘bullet’. She led her quiet life. Kenyan politicians should borrow a leaf.

Let us protect our institutions. They are the ones we will run to when those in power misuse their authority. Strong institutions are what Kenya needs to have peaceful elections. Not BBI.

Create progressive constitutions, such that, even if your worst enemies are in power, you will live a tranquil life. Before the handshake, the NASA brigade was on the receiving end of anarchy. I particularly recall one incident where DP William Ruto derisively laughed at  Wiper leader Kalonzo Musyoka for "sitting on the tarmac" during anti-IEBC protests. Today, it is his foot soldiers who are experiencing this.

The BBI is a document for the political class. Which explains its massive support from the modern day Judases-the MCAs. They are misrepresenting this as the ‘will of the people’; but we all know that in Kenya the idea that elected representatives reflect the interests of citizens is a utopia.

As the youth say “Kwa ground, vitu ni different.” They care about their interests primarily. Finally, rejecting BBI is not synonymous with support for Ruto. You can reject BBI and still reject Ruto. Kenya needs not new laws; it needs implementation of existing laws. Stand up and save your country. Reject BBI!

Neil Samuel is a writer and lawyer

Edited by EKibii