Separating facts from fiction on the BBI proposals

Since its first release in October 2019, the Building Bridges Initiative’s report has attracted praise and vitriol in equal measure. Lawyer Paul Mwangi, the team’s joint secretary, dismantles what he calls “most common fat lies” peddled against the reworked report released last week

Long before there was social media, Kenyans knew about fake news, and its power as a weapon in political competition. In fact, the classic fake news in Kenya was where a candidate hides the night before a ballot and spreads the news that he has been abducted by rivals. Several winners at various ballots over the years owe their success to this most-wicked fabrication.

From its initiation about two-and-a-half years ago, the Building Bridges Initiative (BBI) has been the target of fake news about every aspect of its work. The BBI report, before and after it was released in October 2019, has been possibly the most perverted document in the history of fake news.

Barely one week after the second report was released, the experience is exactly the same. Falsehoods remain the foundation of the most vitriolic attacks against not only the report but also its propagators. 

Let’s look through the most common fat lies about the second BBI report.

Constitutional changes

It is alleged that everything BBI intends to achieve through constitutional changes can be secured through the implementation of the constitution.

This cliché has become the default attack line of the second BBI report. However, those who crafted it and propagate it fail to demonstrate exactly what they mean.

For instance, it is BBI’s opinion that losers in presidential elections need to be involved in the governance of the country as they will always represent large percentages of citizens with opposing political opinions. The political structure that we established in the 2010 constitution does not allow this.

It is one thing to differ with BBI on the proposal to validate a popular presidential candidate who loses an election; yet quite a different thing to state that it is possible, under the provisions of the constitution, to give such a leader a constitutional role in the country’s governance.

What would be a helpful debate is one where we discuss how to innovate within the current constitutional dispensation to secure these proposals. Without this, the clichéd refrain that we don’t need to amend the constitution is nothing more than a misinformation campaign.

BBI report

An equally clichéd statement against the BBI report is that it is bringing back the imperial presidency. The basis of this allegation is that in the BBI proposal, the President has the power to dismiss the prime minister and his deputies and also that the President appoints the judiciary ombudsman.

Regarding the prime minister and his deputies, the current situation is that the President has the power to dismiss everyone who is a member of the Cabinet, save the deputy president. And he has no power over the deputy because he or she is part of the presidential ticket that is voted in at the ballot. That being so, the President must have the power to dismiss the prime minister.

A more reasonable argument would be that there is good reason to remove this power over the prime minister. That, however, answers to a totally different set of concerns, chief of which is the experience in when the constitution creates two centres of power around a President and a prime minister.

Regarding the Judiciary ombudsman, I dare say the criticism is classical scaremongering. It is akin to the propaganda that was spread against the constitution 2010 that it allows abortion.

In the constitution, the President appoints many constitutional officers. This does not mean that he gets to appoint anyone he wants.

The constitution requires that constitutional officers be appointed after a competitive recruitment on merit and that the people, through their representatives in Parliament, get to approve.

The President only gets to appoint constitutional officers after a person has been identified through a process. Even the Chief Justice, and all judges, are appointed by the President. But they are recruited through another process.

The law governing the intended Office of the Judiciary Ombudsman will certainly provide this process in the same way laws have made such provisions for other constitutional offices, the Chief Justice included.

Then it is said that BBI has expanded the Executive to create “jobs for the boys”. This is in respect of the positions of prime minister and his two deputies.

First, the actual position is that BBI took a responsibility currently the exclusive mandate of the President and gave it to someone else. All the powers BBI wants transferred to the Office of the Prime Minister are currently exercised by the President in his absolute discretion.

Farthest from creating an imperial presidency, the proposal ensures that the work of running government is subjected to the daily scrutiny and approval, or censure, of the National Assembly. The current members of the National Assembly will tell you how they are currently powerless over the presidency in the day-to-day running of government.

Prime Minister

And even further, the position of prime minister is a role given, rather than a job created.

The prime minister in the BBI proposal must be a member of the National Assembly.

He or she gets to the House like all other members. It is only then that the President can appoint the PM to execute the role.

Similarly, the deputy prime ministers. They must first and foremost be Cabinet ministers: and we all know the constitution limits than number of ministers the President can appoint.

So there is no new job; no new pay either. Remuneration must follow the system that we used for decades before we changed the system; the prime minister and the deputies only receive a responsibility allowance for the extra roles they play.

It’s much the same way chairpersons of House committees get a responsibility allowance for their extra roles above being representatives.

Lastly, there is the issue of representation and the extra cost to the public.

 It is claimed that it is possible to resolve the gender parity question, and the equality of the vote requirement, without increasing representation.

It is not possible to talk about all the issues that arise but one that is most illuminating is the equality of the vote issue.

When the constitution came into force, it acknowledged that representation was skewed but allowed the situation to prevail for a while. This created what were called protected constituencies.

The option open to BBI to achieve equality of the vote was to allow these protected constituencies be wound up and these seats be allocated to the more populous areas. That would have maintained representation at 290 constituencies.

27 protected constituencies

But this was going to marginalise already marginalised populations. We would have to take away from the people of Lamu, Isiolo, Embu, Taita Taveta, Samburu, Tana River Elgeyo Marakwet and Marsabit among others.

We preferred to maintain all the 27 protected constituencies and instead come up with another method to give the populous areas what they had been promised.

Were we wrong to protect the representation of these marginalised communities only because it will cost this country more in representation?  Personally, I would ask, what is the cost of fairness?

I believe in making decisions on the future of Kenya, we should be guided always by the need to have a healthy nation.

Even in our own lives, we never hesitate to undertake necessary measures to secure our well being and particularly never hold back cure on the basis of financial requirements. That would be not just a miserly thing to do but also irresponsible. 

Ultimately, we would compromise the very financial resources we hope to preserve were this nation to succumb to the ravages of a festering and unattended political malady.

The writer is Joint Secretary BBI Implementation Steering Committee