BBI: The good, the bad and the ‘ugali’

President Uhuru Kenyatta and former Prime Minister Raila Odinga in Naivasha, Nakuru County, after a meeting with parliamentarians from the Senate and the National Assembly that discussed building consensus on the implementation road map of the reform proposals contained in the BBI report. [Joseph Kipsang]

The stage is set for Kenyans to go to a referendum next June to vote on constitutional changes proposed in the Building Bridges Initiative (BBI) report. 

President Uhuru Kenyatta and his ‘Handshake’ partner Raila Odinga already led pro-BBI MPs in endorsing the BBI at a retreat in Naivasha, effectively closing the door for further amendments as sought by Deputy President William Ruto and his allies.

Since the launch of the BBI report at Bomas of Kenya on October 26, the DP has been rooting for more dialogue the steering committee’s recommendations in what he said was aimed at ensuring Kenyans go to a non-contested referendum.

However, during the Naivasha retreat, there was general agreement that the draft Constitutional Amendment Bill formulated by the Senator Yusuf Haji-led steering committee should not be reopened afresh as such a move could lead to legal challenges as avenues for public participation were already exhausted.

The BBI report proposes an expanded national executive to include a Prime Minister and two deputies, who will be Cabinet ministers, besides the President and the Deputy President.

The Prime Minister will be an elected MP from the largest party or coalition in the National Assembly.

The BBI has also created the position of Leader of Official Opposition in Parliament-from the person who garners the second widest votes in the presidential contest. 

The proposals are similar to those in the Harmonised Draft Constitution by the Committee of Experts but which MPs watered down in Naivasha leading to a pure presidential, which has proved problematic.

This is to prevent Presidential losers from being in the political cold and ensure as  President Uhuru argued that  the loser “does not go home with nothing.”

Under BBI’s hybrid system, the Prime Minister will be the Leader of Government Business in Parliament while Cabinet Ministers and the Attorney General will also sit in the House.

 Elgeyo Marakwet Senator Kipchumba Murkomen, a close Ruto ally, holds that while BBI will be very good for presidential candidates, especially front runners, it will create an imperial president, unstable Executive and expensive governance structure.   

Eminent economist David Ndii also thinks “the BBI report is the manifesto of KANU 2.0. It seeks restore the KANU dictatorship that Jomo (Kenyatta), Jaramogi (Oginga Odinga) and (Tom) Mboya conceived in 1964,” he wrote on his Twitter handle adding the 2010 Constitution “has left the wolves no choice but to remove the sheep’s clothing.”

For starters, the President will appoint the PM if MPs fail to agree on the first two options, effectively ushering an imperial presidency who have his way in Parliament. 

But political analyst Dr Wanguhu Gitonga reckons that the proposed changes will ensure there are no centres of power and thus ensure national stability.

“I think the changes are good. In any case, the President will have no discretion in who he or she chooses as the PM on the first or second vote by the National Assembly. What I like about it is that we will avoid a situation such as what obtains in Somalia where disputes between the President and the Prime Minister make it impossible to govern unless one is kicked out, which is still a dangerous prospect,” Dr Gitonga told The Nairobian. 

Lawyer Bethuel Aswani, on his part, noted that unlike in the ‘nusu mkate’ government of President Mwai Kibaki and Raila, under the proposed amendments the roles of the PM have been clearly outlined, which will help avoid splits in government in the event the President and PM come from opposing parties or coalitions.

He also dismissed assertions that the BBI is seeking to bring back an imperial President, noting that presidential decisions and orders will still be challenged in court as has happened since the 2010 Constitution came into force.

“In any case the decision to elevate the Independent Policing Oversight Authority to a constitutional commission shows a desire to enhance checks and balances on the executive,” he added.

History Prof Macharia Munene, however, says that whether the proposed changes will lead to an imperial presidency will be determined by the character of who wields the powers they proposed changes seek to donate and how he seeks to govern.

“Both sides have points. It boils down to the personality of who becomes President,” he said.

ODM National Treasurer Timothy Bosire, on his part says proposed changes will not bloat the wage bill as “In fact, it will drastically reduce the wage bill. The PM and other MPs in the Cabinet will only earn one salary. Contrast this with the current structure where we have ministers drawn from outside Parliament who earn salaries but never sit in the House and instead deal with MPs through the committee system. It is a drain on public resources,” said the former Kitutu Masaba MP. 

“In fact, it will lead to better coordination and oversight on the part of Parliament,” he noted, adding that more resources will be saved because there is no proposal for retention of the positions of Chief Administrative Secretaries or the return of assistant ministers. 

Bosire also welcomed the proposals to increase allocation to county governments from the current 15 percent to 35 percent and entrenchment of the Constituency Development Fund in the Constitution. 

Pundits aver that DP Ruto could be seeking new fronts to oppose the BBI after realising it addresses the socio-economic challenges that underpinned his “Hustler Movement” as the BBI is replete with sweeteners for the youth, women, the elderly and persons with disabilities as well as marginalised communities.