Waiting for BBI: A new system with or without a referendum?

In Summary • Public debate, however, has largely focused on just one issue: Whether leaders of the five big tribes could be given high jobs in government or parliament: President, Deputy (or Vice) President, Prime Minister, and one of two Deputy Prime Ministers.• Changing the democratic system and how the head of government is elected “relates to” democracy — a national value. A change “related to” a national value needs a referendum.4 min


The primary movers of the Building Bridges Initiative (BBI), President Uhuru Kenyatta and ODM leader Raila Odinga, have publicly stated, in numerous occasions, that the main import of the exercise is to “unify” the country.

What the two leaders don’t seem to be mentioning, however, is the fact that the country has been here before; that this is not the first time we have tried to find solutions for our exclusionary politics; that the main players are the same.For instance, many would remember that following the 2007-08 post-election violence, a Committee of Experts (CoE) was appointed – on slightly different circumstances – but whose terms of reference were, except for a few details, strikingly similar to those assigned to the BBI team.Broad support

Similar to the BBI initiative, the idea of creating a national ethos was also at the heart of the CoE process in 2009-10.Guided by that principle, the CoE proposed a constitutional draft which received the broad support of the country’s political leadership, and that we adopted during a constitutional referendum in 2010.The question is, what has changed since then? Why has it become necessary to review or change the same document created by a process with more or less similar objectives?

Busia Senator Amos Wako speaks at State House, Nairobi when President Uhuru Kenyatta and ODM Raila Odinga met the Building Bridges team on September 21, 2018.

These questions have not been properly answered by neither Uhuru nor Raila. In fact, it is for their silence on these issues that a cross-section of political leaders allied to Deputy President William Ruto have questioned the motive behind the BBI exercise.They believe the BBI process is meant to expand the Executive only to create a position for Raila. This argument may be mischievous but not at all weak. 

Following the 2007-08 post-election violence, a Constitution of Kenya (Amendment) Bill, and a Constitution Review Bill were passed by Parliament and assented to by former President Mwai Kibaki. One of the organs of the review of the former constitution included the CoE, which by November 2009 had published the first draft of a harmonised draft. The harmonised draft provided for a hybrid system of government, where Executive power was to be shared by a President and a Prime Minister. The President, who was to become the Head of State, was to be elected in a general-election, while the Prime Minister would be the leader of the largest political party in Parliament.The number of ministers was fixed at 20, and not more than 10 could come from outside of Prliament, meaning the Cabinet would be made of a mix of MPs and non-politicians. The harmonised draft also provided for a bicameral legislature, and a three-tier system of decentralised government: the national government; regional governments following the eight former provinces; and county governments. In sum, the first harmonised draft aligned very well with the wishes of ODM at the time. As a result, it was quickly opposed by members of the Party of National Unity (PNU), who were led by Uhuru, then a Deputy Prime-Minister.Similar to a majority of views expressed in memoranda sent by members of the public to the CoE, the PNU wing wanted one centre of power, and a scrapping of the regional tier of government. As a result, the second harmonised draft provided for a pure presidential system, scrapped the regional tier of government, and fixed the number of parliamentary constituencies at 290. Nothing much changed after that.

At the Great Rift Valley Lodge in Naivasha, where the Parliamentary Select Committee of 14 PNU and 13 ODM members that had been selected to respond to the first harmonised draft met, disagreements reigned and some deals were struck.The most important deal, which removed the clog that threatened a deadlock in the discussions, was made by none other than Raila and Uhuru, the primary players of the BBI process eight years later. The deal saw ODM let go of the parliamentary system altogether, in favour of the presidential system, and they relaxed their demands for a three-tier system of decentralisation in favour of a two-tier system, with devolution at the level of 47 county governments.During the parliamentary debate over the CoE draft, ODM MPs, notably James Orengo, continued to push for the regional governments. The electoral experience of 2007 had shown Raila and William Ruto – the leading ODM politicians at the time – that they too, could head the government by becoming President directly through the ballot, and not through the control of regional governments, or having to go through Parliament. With this, they abandoned the majimbo and parliamentary systems of government.With their opposition gone, Kenya adopted a pure (American-style) presidential system. Pure in the sense that, not only would Cabinet ministers be appointed from outside of Parliament, but losers of the presidential elections, no matter how many votes they had garnered, would not be accorded any public office.

The first disappointment, at least for Raila and his supporters, arrived in 2013. With a slight margin, he lost the presidential election to a Uhuru and Ruto alliance.Entrenched feelingsThis was repeated in 2017, where Raila, amidst reports of irregularities during results transmission, lost again to Uhuru.Despite his considerable political influence over vast areas, under the presidential system he had done much to support, Raila held no public office between 2013 and 2017. The anger in 2017 that was felt by Raila supporters could not be separated from deeply-entrenched feelings of exclusion and marginalisation, coupled with a welter of unaddressed historical injustices, which were all at the centre of the violence that followed the protracted and disputed elections.To propose that the Executive be expanded might be right and proper. But the fact that the political leadership has, in the recent past, moved the country away from more inclusive systems of government should be cause for concern.With the current open declarations of support for a parliamentary system, isn’t the political leadership taking the country around in painful historical circles?Related to the above, can the BBI be considered a genuine process of constitutional change for national unity and prosperity? 

– The writer is a PhD candidate at Durham University, UK.

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