BBI: A failed coup against Kenya’s supreme law

Supreme Court judges

Supreme Court judges on March 31, 2022 during the delivery of the ruling on the BBI bill. The apex court ruled that the President cannot use the popular initiative to amend the constitution.

Photo credit: Dennis Onsongo | Nation Media Group

The collapse of the Building Bridges Initiative (BBI) in the Supreme Court last week was the last nail in the coffin of what was clearly an attempted overthrow of the Constitution and constitutionalism.

The whole endeavour was needless and devoid of national interest. The few sweeteners thrown in were meant to camouflage the conspiracy against Kenya and could be implemented without targeting a whopping 78 clauses. If the threat had succeeded, it would have changed our constitutional order – and the country and its people would have been the worse for it.

Kudos to the three superior courts for finding the whole affair nefarious, illegal, unconstitutional, null and void. And for good reason – the BBI smelt bad from day one. Why would an outgoing head of state go all out to drastically alter the Constitution he has served under for nearly all his term in office? With a strong Constitution like ours – one that makes the President shiver in January and sweat in July – wouldn’t it be the best gift to bequeath a successor, even a line of successors?

Granted, it is no secret that the President has always sat uneasy with the supreme law. Ignored court orders, including on the appointment of judges, are just but one example. In fact, the disdain for the curbs that the Constitution bears against the Executive has been passed on to Cabinet and principal secretaries, senior government officials and even the Inspector-General of Police, a key cog in the administration of justice.

Supreme law

There was no altruism in the attempt to tear the Constitution apart. The excuse that the supreme law needed to be changed to provide more funding to counties does not require the proposed mutilation. The constitutional provision only gives a lower bar of 15 per cent and no ceiling. All it needs, then and now, is for the government to provide more funds to the counties.

This provision was meant to hoodwink the public that the proposed changes were meant to benefit the people.

The other sweetener BBI pushers crowed about was the need for more constituencies. The Constitution has a mechanism of delimiting new electoral areas through the Independent Electoral and Boundaries Commission (IEBC). But the forces behind constitutional changes found this too limiting and opted to direct the IEBC on where new electoral areas would be created.

It is evident in the proposal that the only condition the framers looked at in determining where new constituencies would be created depended on how feverish a county was towards the ‘Handshake’ of March 9, 2018. And thus the real aim behind the bid to mutilate this section becomes clear — it was about absolute power, absolute control and overthrow of the Legislature as we know it.

The changes were done with an eye on the composition of Parliament, the National Assembly and Senate, after the August elections. In the Senate, each of 47 counties was to elect two senators, man and woman, and thus raise the number from the current 67 to 94.

Legislature captured

To complete the total emasculation of Parliament and, indeed, the entire Legislature, including at the counties, some members of the national and county assemblies were to join the Cabinet at the two levels of governments. With the Legislature captured, laws could be changed and made more easily.

To some people in power and eyeing power, the Judiciary has become a ‘roadblock’ to the exercise of power willy-nilly. To tame it, what better vaccine than the creation of an office that keeps the judges watchful over their decisions. And thus the ombudsman was proposed. Was this, too, for the benefit of the country?

Never. It was about absolute power, absolute control and the desire to make the Judiciary a poodle of the powers that be. But the BBI pushers appeared to have caught a high falutin disease the Greeks used to call hubris, that feeling of being so powerful that daring the gods to a duel is cheap corn. They were hard of hearing even to sound reasoning. If they had listened more to the pulse of the country and the views of others, they would have understood that majority of the people had different ideas on what ails Kenya.

The lesson Deputy President William Ruto gave at Bomas II should have been an eye opener. He explained it was necessary to respect the sanctity of separation of powers, re-engineer the economy and give pride of place to the issues that matter to hustlers, the majority of Kenyans. But some of the ‘delegates’ chose to howl. See the results now?

It is important that the attempted coup against the Constitution flopped. Anything else would have been too grave to contemplate.

The writer is in the William Ruto presidential campaign. m[email protected]

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