Major Hurdles BBI Proposal Must Navigate to become Law

There is a lot to say about the report issued by the Building Bridges Initiative (BBI) on the content of the constitutional proposals, including the proposals on the resumption of an imperial and overbearing president; ballooning of Parliament; the appetite for the President to take away the independence of the Judiciary and the Director of Public Prosecutions – by gravely interfering with the objective removal processes in the current constitution; taking over any constitution safeguard to make police professional – name it.

Still, for these proposals to have a chance to become official amendments to the Constitution, sponsors of BBI will have to surmount various procedural and substantive challenges. Can they?

The first key challenge is that whatever process BBI process follows, the amendments must go through Parliament. However, Parliament currently faces dissolution for failing to comply with the Constitution in passing the two-thirds gender law. This is problematic for at least two reasons. First, Parliament is illegitimate and unconstitutional.

Illegitimate because Parliament, which itself is facing imminent dissolution for failing to adhere to the Constitution, lacks constitutional and moral authority to undertake the consequential business of amending the Constitution, and especially where part of what BBI amendment relates to tinkering with provisions on two-thirds gender rule.

Second, regardless of whether Parliament is dissolved in accordance with the Chief Justice’s advisory or not, it is still unconstitutional and illegitimate because its current composition is not constitutionally gendered compliant.

The next major challenge and point of illegitimacy is the Independent Electoral and Boundaries Commission (IEBC). The commission is illegal for failure to meet the basic gender and simple statutory composition requirements on quorum.

Of course, BBI proposes to amend the Constitution to provide for an alternative and president and party-heavily controlled process of selecting IEBC commissioners. There is also currently an equivalent statutory proposal in Parliament to do exactly that – which however may require consensus building to pass.

IEBC is critical in the BBI amendment process because the proposals made require having a referendum. Not only does IEBC conduct a referendum, but it also formulates the question for the referendum. Additionally, if BBI chooses to follow the popular initiative option, IEBC would have to verify the one million signatures needed to start a popular initiative amendment process.

An illegitimate and illegal IEBC soils the process through which BBI would need to travel to change the Constitution.

A third major hurdle is on the referendum and this has numerous tributaries. First, Parliament proposed to create a law to guide the referendum process, yet the bills to do so are still stuck in Parliament. Yes, bills – because infighting in Parliament saw two bills on the procedure to be used at referendum tabled simultaneously.

They will need to go through some mediation process first to be harmonised before they can pass. That may take time. The bills themselves are highly infirm and hence face real risks of being challenged for being unconstitutional when passed, especially because they are too vague to properly guide a critical referendum process.

Second, proposals presented by BBI are highly complex and mostly require a referendum. Most require a standalone question. Most go to the basic structure of the Constitution. In fact, within a single amendment provision, several Yes/No questions are necessary.

To illustrate, there is a proposal to changing the composition of Parliament; both the National Assembly and Senate. Arguably, a voter may like the proposal on how to change the composition of Senate but not the National Assembly. To be fair, two questions should be presented in such a case.

But it is likely that BBI sponsors will try the easy way out in framing referendum questions by presenting Kenyans with the entirety of the amendments and asking them to vote Yes or No to the omnibus proposals. But that will be problematic.

First, it would increase the chances of all the proposals will be voted out. While Kenyans may like the raising of the floor of monies to go to counties from 15 per cent to 35 per cent, they may still find (as is the case) that the ‘good’ in BBI dwarfs in comparison with self-serving proposals by BBI - for example, the ballooning of Parliament and creating an imperial president who holds the switch on all arms of government and other key public entities and offices.

But there is another problem. The complexity of how to untangle the provisions that belong to the referendum and those that don’t create the real and likely possibility that courts will be keener to intervene if called upon to.

It is after all, the courts’ primary responsibility to safeguard the need for internal harmony of a constitution.

Finally, there are the mandatory constitutional processes and timelines the documents must travel.

There is Covid-19 and its complications that go to making adequate public participation on the proposals extremely difficult as well as the bad optics of having to prioritise paying billions of shillings for a referendum when our economy is teetering towards the cliff.

There is also a presidential election coming up in August 2022 – just 21 months from now. Then there is the never-ending political paralysis of wheelbarrows and all.  Ultimately, how Uhuru and Raila (mostly Raila) navigate this moment and the animus that comes with it will be interesting to watch.

Mr Waikwa is a constitutional lawyer.