Supreme Court decision on BBI will define Kenya's constitutional destiny

Supreme Court Justices led by Chief Justice Martha Koome at the Supreme court building on Wednesday, January 19, 2022, during the BBI appeal case. [Collins Kweyu, Standard]

Listening to the Building Bridges Initiative (BBI) appeal at the Supreme Court, one can easily get lost in the nitty-gritty definitions and technicalities. To experts, the case boils down to whether a sitting president can spearhead fundamental constitutional changes using state resources, officers and state patronage.

To understand the issue, one must interrogate the history of constitutional changes in Kenya, their effects and who the changes ultimately benefited.

The High Court and Court of Appeal declared BBI unconstitutional mainly because they found that the president could not initiate a popular initiative under Article 257 of the Constitution. They rejected the notion that an incumbent president could spearhead the modifying of the very constitution that he swore to protect. 

I do not doubt that some supporters of BBI genuinely believe that it will solve Kenya's problems, such as the cyclical violence every election year. Similarly, I don't doubt that some people oppose BBI for short-term political gain. Those opposed to BBI opine that constitutional changes were not of the people but the political class. They argue that the document does nothing to address the real problems, such as electoral injustice, which is at the root of contestation of presidential elections results and subsequent strife.

One of the lawyers during the case compared our situation where BBI proposes 83 amendments to an 11-year document to America's constitution which has only been changed 27 times in over 235 years.

The judges at the Court of Appeal meticulously outlined the various constitutional changes between 1963 and 1992 and the profound impact they had on regional governments and devolution, democracy and electoral justice. For example, at one point, Parliament amended the constitution to allow one person to run for MP.

It is noteworthy that during the BBI debate, MPs produced a report that flagged some BBI provisions, such as the unequal and opaque allocation of constituencies to earmarked counties, as unconstitutional. Nevertheless, they passed it anyway, arguing that a review would be done later. 

The Supreme Court has its work cut out because it must balance many competing interests regarding constitutional changes. 

Constitutions should be amendable when there is a constitutional moment. But who determines this moment and what is the state's role in supporting these changes? Does state involvement remove the 'popular' character of the process? Do the High Court and Court of Appeal interpretations that the president cannot initiate changes via popular initiative infringe on his rights as a Kenyan citizen? 

Another consideration the Supreme Court must make is whether the president's duty to promote peace and unity gives him leeway to use state resources to realise this peace. For this, they must look at whether the situation in 2017 rose to the level of a constitutional moment, which made the president take the path he did. 

We can all admit that the Handshake calmed down political tempers and ended the protests. However, the jury is still out whether Kenyans were actually fighting each other in 2017. 

Many see BBI as an elite settlement after a gruelling political fight in 2017 instead of a roadmap to solve the toxic "winner takes it all" politics proposed by the president and ODM leader Raila Odinga. However, the Supreme Court is bound to look at the issue impartially. 

As the court retires to decide, it is essential to note that their decision will have far-reaching consequences.