BBI: It will be race against time

President Uhuru Kenyatta and ODM leader Raila Odinga display a copy of the Building Bridges Initiative report at Kisii State Lodge. [PSCU]

The High Court’s declaration that the Building Bridges Initiative (BBI) is illegal could have devastating effects on the process, including halting it altogether, constitutional lawyers and politicians have warned.

While the promoters of the initiative are expected to petition the five-judge bench’s decision, it is now emerging that doing so will not only be a tall order but the exercise could stretch for long, thereby complicating the timelines for a referendum and next year’s General Election.

“The problem is not whether or not those of us pushing the BBI bus will get a favourable decision, but rather the time to execute the process to the end,” said Senate Minority Whip, Mutula Kilonzo Jr.

His sentiments were echoed by Ford-Kenya leader Moses Wetang’ula, who detailed the long process involved in the reconstitution of commissioners of the electoral body as well as the delimitation of boundaries.

“The latter is a long and winding process, which is also highly emotive and politicised. It involves countrywide tours and public participation and if it is not concluded at least by August, then it will be a near impossibility to accommodate the proposed 70 constituencies ahead of next year’s poll,” Wetang’ula, who is a principal in the newly-formed One Kenya Alliance, told The Saturday Standard.

Wetang’ula and Kilonzo Jr, who are lawyers, said that the execution of the BBI is increasingly being compromised by the time element and on Thursday, Justices Joel Ngugi, George Odunga, Chacha Mwita, Teresia Matheka and Jairus Ngaah made an already difficult situation harder.

According to Nairobi-based lawyer Harun Ndubi, the appeal process could delay the BBI process even further. Ndubi said undoing the ruling would take a longer legal route since the judges gave declarations and not orders in their ruling.

“Unlike orders which petitioners can easily seek a stay, the import of declarations is that the petitioner can only seek the setting aside of the judgment, which means the entire appeal has to be heard and determined,” said Ndubi.

Unlike in the final ruling which amalgamated all the cases against the BBI process into one, Ndubi pointed out that each of the appeals could be heard and determined independently – an arrangement that will greatly eat into the execution time of the initiative.

In their ruling, which drew accolades and condemnation from the political class, the judges declared the entire process null and void and singled out the president for violating the Constitution, which he swore in 2017 to uphold, for spearheading a popular initiative to amend the Constitution contrary to the provisions of the law.

The ruling is expected to have political implications ahead of next year’s poll. By Thursday night, Deputy President William Ruto, who has repeatedly poked holes in the BBI exercise principally fronted by President Uhuru Kenyatta and Orange Democratic Movement leader Raila Odinga, appeared to be the key political beneficiary as the ruling went his way in “stopping the (BBI) reggae”. 

“There is God in heaven who loves Kenya immeasurably. May God’s name be praised forever,” tweeted the DP immediately after the ruling. However, by yesterday, the Ruto, Kenyatta and Odinga camps remained silent, with none releasing a statement regarding the Thursday ruling.

And reacting to the ruling yesterday, BBI secretariat co-chairmen Junet Mohamed and Dennis Waweru said they would go to court to challenge it.

Waweru termed the ruling misdirected and more political than an interpretation of the Constitution.

“We as the secretariat are the promoters of BBI and not President Uhuru Kenyatta or ODM leader Raila Odinga. While I respect the ruling, I disagree strongly with it. The BBI is not unconstitutional because it is just a proposal to amend the Constitution,” said Waweru.

The question on the lips of many is if indeed the High Court ruling was apt, how could some of these senior and respected lawyers of Mr Kenyatta and Mr Odinga, as well as Attorney General Paul Kariuki Kihara have missed simple legal protocols pointed out by the judges? How, for instance, would they have allowed the Head of State to spearhead the popular initiative, contrary to the Constitution?

Apparent anomaly

Kilonzo Jr and Ndubi are similarly perturbed by the apparent anomaly. While some have suggested that the State may have deliberately played careless well aware that the process would stall, Kilonzo Jr dismissed the theory maintaining the president’s reputation was at stake.    

Noting that Ruto had won the image and public relations battle, political scientist Richard Bosire said the court ruling was a most welcome gesture to the DP, “who had lately suffered a chain of humiliating losses in Parliament”.

“Going forward, however, the court ruling only solidifies the ties between Uhuru and Raila and the other four partners (Wetang’ula, Baringo Senator and Kanu party leader Gideon Moi, former vice presidents and Wiper Party and Amani National Congress leaders, Kalonzo Musyoka and Musalia Mudavadi), because Thursday’s developments have left them with egg on their faces and they must jointly stage a fight-back,” said Dr Bosire, a University of Nairobi lecturer. 

Kilonzo Jr said the Ruto judicial win had served to unite the forces against him, a factor which he said would greatly work against him”.

“Look, the BBI process benefits the DP more than it does his competitors who face him as a united team in the presidential poll. If this thing (BBI) flops, he will mourn in the political cold alone for five years, just like our party leaders have done over the years,” Mutula Jr said.

His sentiments are premised on the assumption that the DP will lose the presidential battle, a factor that his backers don’t agree with considering that he has declared he is in the race.  

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