The proponents of a referendum before next year's general election have been jolted by the August 20 date of the BBI ruling, with poll timelines now in disarray.
Should the Court of Appeal annul BBI, the Building Bridges Initiative bigwigs will have to go back to the drawing board to craft a new winning formula.
Most political heavyweights and regional leaders had hoped they would leverage on an expanded Executive under the BBI to build bigger alliances for 2022. A bigger Executive means more plum jobs to promise and give out to build alliances and appease communities.
The Constitution of Kenya (Amendment) Bill, 2020, or the BBI Bill, proposes the creation of the office of the Prime Minister with two deputies —all appointed by the President.
The Bill also proposes the creation of the powerful office of the leader of the official opposition, funded by the Exchequer and with staff paid by taxpayers.
The BBI proponents say this is meant to address exclusion and ensure national harmony after general elections.
However, the hopes may go up in smoke if on August 20 the Court of Appeal upholds the High Court ruling that annulled the BBI process. A seven-judge bench is considering the case.
Legal experts have said the duel will go all the way to the Supreme Court, further complicating referendum hopes.
If the BBI process hits a dead end then, analysts say, major 2022 alignments and realignments will be in the offing.
President Uhuru Kenyatta and ODM leader Raila Odinga —initiators of the BBI process — had promoted constitutional amendments to restore national harmony, deal with graft and address electoral injustices.
But various stakeholders, including the church and civil society players, have vigorously called for postponement of the referendum— if the Court of Appeal okays it — to a later date to give the country adequate time to prepare for the 2022 polls.
The anti-referendum forces argue the 12 months remaining are insufficient for the electoral commission to conduct a public vote as well as adequately prepare for the general election.
The pro-BBI side had last year unveiled a road map for the country hold a plebiscite by last June, but vicious legal battles foiled the plans.
Former Cabinet Minister Franklin Bett said the mojo and momentum for the referendum has been deflated by the courts, insisting that the country should now focus on preparations for the 2022 polls.
“It is high time that the nation turned its eyes to clearly supporting the electoral commission to prepare for fair, free and credible general elections next year,” the ex-Bureti MP told the Star.
The former ODM stalwart from the Rift Valley said there is a high likelihood the loser at the Court of Appeal will go all the way to the Supreme Court.
“The earliest perhaps the Supreme Court can make its determination could be September or October or thereabouts. Already, the country would have been in an electoral cycle,” he said.
The President and his handshake partner, Raila, had moved to the Court of Appeal alongside the BBI Secretariat to challenge the High Court ruling that declared the constitutional amendment process unconstitutional, null and void.
A five-judge bench had held that the President acted unconstitutionally when he used his powers to initiate a constitutional amendment through a popular initiative, a route the judges said is reserved for ordinary Kenyans.
In a radical ruling that cited at least 21 grounds for objection, the High Court also indicted the electoral commission, saying it did not have the requisite quorum to process the BBI Bill.
Lifting the lid on the stakes attached to the BBI process, Uhuru had in his Madaraka Day speech on June 1, hit out at the Judiciary for stopping the BBI process.
“We must endeavour to pursue political stabilisation by any means necessary. I say so because stability is the life's -blood of our Republic. What we have built for 58 years can be destroyed in one day of political instability. But we cannot engage in political stabilisation if we live in political denial,” the head of state said.
“They oppose BBI not because of its substance, which even its harshest critics concede is good, but because, unlike our founding fathers, they cannot dare imagine a better Kenya for all,” he said.
However, despite the hurdles, both Uhuru and Raila have appeared optimistic their legal teams battling in court will deliver victory for BBI to pave the way for a referendum.
In what would further complicate a referendum before next year's polls, the Independent Electoral and Boundaries Commission has released timelines for the 2022 General Election.
With the strict electoral cycle timeliness, political parties, as well as 2022 hopefuls, would be pulling out all the stops to ensure compliance with the legal requirements including preparations for primaries.
For instance, presidential aspirants will submit their nomination papers to the IEBC between May 30 and June 10 2022, posing a timelines dilemma for hopefuls.
The electoral commission has also said the money allocated to it is about preparing for the 2022 polls as well as conducting the boundaries delimitation required by law.
The process, the IEBC, says should be complete by 2023, meaning the new electoral units that will be mapped will not apply in next year's general election, jolting the BBI proponents as well.
However, BBI Secretariat co-chairman Dennis Waweru said the Bill had addressed that legal barrier.
Waweru said they are not worried about the timelines since a proposal in the document has provided for when constituency boundaries review should be conducted.
“We are still okay in terms of the timelines. The document has waived the one-year requirement for boundaries review, so we can have the referendum and still review the boundaries before the next polls,” Waweru said.
The crusaders for the constitutional review process had settled on 70 new constituencies which they distributed to select counties, a move the High Court termed unconstitutional and usurping on the IEBC mandate.
Hussein Marjan, the IEBC acting CEO, said the money allocated to the agency will be used in administration, daily running of the Commission and preparation for the General Election.
“Referendum costs were not factored in when the Treasury CS announced allocations to the IEBC,” he said.
Marjan, however, said the Commission had already prepared a budget for a referendum, should it be held.
“We handed over the spending plan to the Treasury [before the courts stopped the BBI constitutional change push],” he said.
“There is no cause for alarm. Should a referendum be scheduled, we will handle it just as we do with by-elections. Normally, there are no budgets for mini-polls,” Marjan added.
The Commission was given Sh14.5 billion in the Sh3.6 trillion budget, months after the agency requested Sh14 billion to hold a referendum.
In October 2020, the CEO told the Public Accounts Committee that a referendum would cost the taxpayer Sh14 billion.
He said the figure was arrived at based on the 19.6 million voters who registered for the 2017 General Election.
However, Raila disputed the figure, saying it was inflated as the country can hold a referendum with only Sh2 billion.
On the other hand, churches and civil society have warned against pushing for a referendum given the little time remaining ahead of the 2022 polls.
However, former Starehe MP Maina Kamanda, a key BBI proponent, said they are crossing their fingers that the Court of Appeal clears the road for the referendum.
He said without the BBI, bigwigs will have to go back to the drawing board to re-strategise about next year's presidential polls.
“Without BBI, it would be a different ball game,” the nominated MP told the Star, adding that the pro-BBI legal team has a strong case.
The BBI Secretariat now wants the electoral agency to prepare for a possible referendum if the Court of Appeal rules in favour of the process.
The BBI Secretariat co-chair said they expect the IEBC to be ready for the planned plebiscite, signalling hopes by the Uhuru and Raila camp of victory at the second-highest court.
He said after a favourable ruling, they expect President Kenyatta to assent to the BBI Bill for onward submission to the IEBC.
“If they managed two presidential elections within a span of two months, nothing stops them from conducting a referendum within a year to the elections,” Junet Mohamed said. He is the House Minority Whip and a Raila confidant.
“If we get a favourable ruling, we expect the President to assent to the Bill since Parliament already approved it. It is a constitutional requirement for the IEBC to conduct a referendum. They have no choice but to proceed with the exercise,” he said.
(Edited by Victoria Graham)
