Bumpy Road for BBI: High-level Constitutional Encroachment

Building Bridges Initiative (BBI) went through hell and back. There were so many legal hurdles facing the constitutional amendment process. The Court would later rule that BBI was unconstitutional. 

First, it was ratified by the Independent Electoral and Boundaries Committee (IEBC) which was underrepresented. The number of commissioners who approved the process after signatures verification failed to meet the minimum threshold.

BBI was the key adhesive holding together Uhuru Kenyatta and Raila Odinga. Uhuru and Raila are scions of Kenya’s founding fathers Jomo Kenyatta and Oginga Odinga respectively. The historic fallout between their fathers trickled to their progenies, which culminated with the landmark ‘presidential oath’ taken by Raila at Uhuru Park early 2018.

Raila and his ODM brigade contested Uhuru’s 2017 presidential win, which was nullified by Chief Justice David Maraga. 

The President and the Opposition leader surprised the nation when they walked down the stairs of Harambee House and announced that they had put aside their political differences. Raila’s allies got mesmerized by the turn of events. Seeing their boss shaking hands with their greatest political nemesis was unbelievable.

Most of Raila’s allies were in the dark before the media bombshell. The opposition boss was accompanied by Junet Mohamed and his last born daughter Winnie. 

BBI Divide

BBI acted as a wedge between the president and his deputy William Ruto. Uhuru embraced his newfound allies more than the deputy president. Political betrayal was apparent when Jubilee Vice Chairman David Murathe fired warning shots against Ruto and allies.

The conversation on constitutional changes was predominant as Uhuru stamped his authority to whip renegades – those against the handshake politics. 

During the launch of BBI at Bomas, Ruto raised pertinent issues which were not addressed. Fissures emerged, as various alterations were made on the BBI report. 

President Uhuru Kenyatta initiated the Jubilee purge that targeted Ruto’s allies. The president was uncomfortable with their persistent opposition to BBI. 

His fallout with Ruto was complicated from the perception that his principal assistant had invaded his territory without his authorization. When Ruto felt betrayed he launched a series of serious political forays in the vote rich Mt Kenya region.

The incursion prompted Uhuru to hold numerous meetings with a section of Mt Kenya leaders to reverse the gains made by Ruto. However, he received considerable opposition from political leaders allied to the deputy president.

BBI Constitutionality Challenged

The Court ruled on May that the initiative driven by BBI to amend the constitution as illegal. A five-member bench unraveled that the initiative to alter the constitution was the president’s idea and not driven by a popular desire.

High Court Judges George Odunga, Joel Ngugi, Jairus Ngaah, Teresia Matheka and Chacha Mwitu issued a landmark decree that declared BBI as null and void. BBI allied politicians were shocked as they were struck with the reality. 

President Uhuru Kenyatta was on the judiciary’s chopping board as the High Court thrashed his driven constitutional changes. The Bill that was ratified by over 4 million Kenyans, 43 County Assemblies, 235 Members of National Assembly and 51 Senators was rendered null and void by the High Court.

BBI crusaders attacked the five-judge bench that overturned the legality of the Bill, terming the act as ‘judicial activism’. Judges and Magistrates Association demanded assurance from Interior Cabinet Secretary Dr. Fred Matiang’i of their safety. 

Kenya Magistrates and Judges Association (KMJA) urged CS Matiang’i to assure Kenyans that its members were secure against any form of attack from individuals aggrieved by the court’s verdict. The Judges who had issued BBI ruling were condemned by most politicians allied to Uhuru and Raila. 

Uhuru received extensive censure over his numerous violation of the constitution. It was the time for Judiciary to hit back at the Executive following a stalemate to hire additional 41 judges. Uhuru’s regime is famed for ignoring court orders.

Linda Katiba Initiative had earlier launched a no campaign to the BBI proposed constitutional changes. BBI was a concealed identity that was noted by the High Court. The Constitutional Amendment Bill, 2020 failed to legally proof as a popular driven initiative.

The concealed identity of the promoter of the Bill drove court to declare as an initiative that was driven by President Uhuru Kenyatta. According to the judges, the Head of State had committed an impeachable offence. 

Kenyatta maintained studious silence on the High Court ruling. His decision to unite Kenya that culminated into a mission to amend the 2010 constitution had hit a snag. Top leaders including Kalonzo Musyoka (Wiper) and Moses Wetangula (Ford Kenya), Musalia Mudavadi (NARC) urged the BBI crusaders not to condemn the High Court verdict.

ANC Party leader invoked the 1997 IPPG plan and demanded that the process to amend the law to start afresh under the guidance of the High Court.

Raila Odinga responded that: “We will move to the Court of Appeal to present our case as to why we think the High Court did not render the right verdict. We will do so with sobriety and with respect for our judges and courts”.

During the 58th Madaraka Day Celebrations held at Kisumu, President Uhuru Kenyatta broke his silence on BBI and issued a warning to the judiciary over what he termed as encroachment of the constitutional limit. 

The national event had been hosted at Kisumu for the first time, and president Uhuru broke the protocol when he invited opposition leader Raila Odinga to speak. On his part, Raila thrashed any move to subject BBI to inter Parliamentary affair but emphasized on the need of a national plebiscite.

A day later Daniel Musinga – the Court of Appeal President convened a case management conference that settled on a seven-member bench to hear the appeal case as was presented by three parties that included the President, ODM and IEBC.

Chief Justice Martha Koome maintained a studious silence as the Court of Appeal Judge advised politicians and media not to prosecute a matter that is before Judges.

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