Echoes of BBI verdict may deal death blow to Ruto-Raila talks

The BBI process engaged a wide spectrum of citizens, leading to legal challenges as different segments of the population questioned its legality.

Alongside this, various groups embarked on public awareness campaigns to expound contents of the proposed document, prompting diverse responses within the populace, ranging from agreement to dissent.

Ultimately, the legal battle ended in court, resulting in its stalling and, to a certain extent, the dissolution of BBI - the Judiciary upheld the arguments presented by various stakeholders, attesting to concerns on legality of the process.

Fast forward to 2023, a similar situation presents itself anew.

Three petitioners are seeking to stop the ongoing national dialogue at the Bomas of Kenya between Azimio La Umoja and Kenya Kwanza.

They want the talks stopped citing the sittings illegal and unconstitutional, and that formation of the committee contravenes various the Constitution.

Just like in the eight consolidated constitutional petitions which challenged, in some fashion BBI and resulting in the Constitutional Amendment Bill and its associated popular initiative, Issa Elanyi Chamao, Patrick Karani Ekirapa and Paul Ngweywo Kirui have challenged the legality of the committee.

In the BBI case, on September 16, 2020, economist David Ndii, together with Jerotich Seii, James Ngondi, Wanjiru Gikonyo and Ikal Angelei moved to the High Court seeking determination of three key issues among them whether the basic structure of the Constitution can be amended.

Their argument was that the legal and judicial doctrines and theory of the basic structure of a constitution, the doctrine of constitutional entrenchment clauses, unamendable constitutional provisions, the doctrine of unconstitutional constitutional amendments, theory of unamendability of eternity clauses, essential features, supra-constitutional laws in a constitution and the implied limitations of the amendment power in the constitution are applicable in Kenya to substantively limit the ability to amend the Constitution under Articles 255-257.

In the case against current talks, the three petitioners listed use of significant public funds for a process not supported by the Constitution, legislation or the Standing Orders of Parliament, as some of the grounds.

They also cite omission of important stakeholders such as the Law Society of Kenya and civil society in the composition of the committee otherwise known as NADCO.

Further, they say there is no legal framework to guide collection of views from the public in an inclusive and participatory process and the principles to be adhered to.

"Short timelines (7 days) in the collection of views on pertinent issues that have a bearing on amendment of the Constitution. The Constitution is not solely an instrument for the political class," the petitioners state via an affidavit sworn by lawyer Peter Wanyama.

Likewise, in the BBI case, the petitioners argued it is the role of Parliament to protect the Constitution against tainted amendment Bills and that the court has role to declare a constitutional amendment unconstitutional in the event Parliament fails.

According to Prof Gitile Naituli, both BBI and bipartisan talks violated the Constitution.

"Just like in BBI, there is no legal framework to guide the process of amending the Constitution by the bipartisan committee which has outlined issues for possible amendment without a background analysis or audit of the Constitution to identify gaps," said Naituli, a professor of management and leadership at Multimedia University of Kenya.

He argues that the political elite, representing different factions, have forged an agreement on specific matters, which include but not limited to: cost of living, audit of 2022 presidential elections results, restructuring and reconstitution of the Independent Electoral and Boundaries Commission (IEBC) and related matters, measures to prevent interference with political parties, outstanding constitutional matters; governance issues, effective checks and balances, the question of boundaries delimitation.

"Some of these issues carry profound implications for ordinary citizens. The resolution of these matters, should the two factions reach consensus, could lead to amendments in the Constitution," he observes.

He further opines that history seems to be repeating itself as political leaders tread a familiar path. These discussions appear constructed not upon legal foundations, but rather on mutual agreements between two opposing sides.

In a similar request like that sought by petitioners in the BBI case, those challenging the bipartisan talks are also seeking the court intervention in stopping the process.

In the BBI ruling, the judges held the BBI steering committee was unlawful and had no legal capacity to promote constitutional change.

The judges further held that the process was done unconstitutionally. The three petitioners say: "Pending the hearing and determination of this Application inter parties, a conservatory order be issued stopping the Clerk of the Senate and Clerk of the National Assembly from incurring public funds to support an entity known as the National Dialogue Committee and its Secretariat."

They have listed the ten members of NADCO, the National Assembly, the Senate and the Attorney General as respondents. They have listed the Independent Electoral and Boundaries Commission (IEBC), LSK and Katiba Institute as interested parties.

However, the Rift Valley LSK chairman Aston Muchela has a different perspective and feels the bipartisan talks will succeed. He says NADCO has learnt from the failures of BBI, and if the same is challenged in court, they will prevail. Mr Muchela argues that unlike BBI which was unconstitutionally initiated by the President, the bipartisan talks involve Kenyans, both in Parliament and outside.

"President Ruto has side-lined himself from the talks. Even the committee appointment was approved by Parliament not the President. It will not face any legal hurdle," says Muchela.

He says the talks are inclusive, and not the Uhuru-Raila handshake talks that were politically driven. He notes that even LSK was invited to give their own views and contribute to the talks that may result in amendment of the Constitution.

He also rubbished claims that the committee was enacted to amend the laws. He says the committee received the blessings by Parliament but legal process must be followed.

"The report on Constitution amendment will only be legal when it is adopted as a parliamentary report. This means it must be tabled in Parliament."