BBI conundrum raises serious questions on our sovereignty


The High Court in Malindi on March 16, 2021 declared unconstitutional the resolution passed by the Tana River County Assembly to pass the The Constitution of Kenya (Amendment) Bill, 2020, popularly known as the BBI Bill.

Photo credit: File | Nation Media Group

An unforeseen occurrence has jinxed the BBI Constitution of Kenya (Amendment) Bill 2020. Apparently, two sets of the bill were delivered to county assemblies; one to 13 and the other to 34. Further, the National Assembly as well as Senate similarly received disparate copies of the bill.

Ordinarily the promoters of a popular constitutional initiative will send to the Independent Electoral and Boundaries Commission (IEBC) only one copy of their draft bill under Article 257(4).

Once endorsed by at least one million registered voters, the IEBC submits the draft bill to each county assembly. The same bill if approved by the county assemblies is transmitted to both Speakers – of the National Assembly and the Senate – for parliamentary debate.

Grammatical errors

Two critical questions arise. Which then was the Constitution of Kenya (Amendment) Bill, 2020 dispatched to the 47 county assemblies, approved by them and passed to Parliament for consideration; and two, is the divergence in the two documents mere grammatical errors and typos?

What are the dissimilarities in the seemingly two BBI drafts?

In Article 97, there is a proposed amendment to introduce three new clauses (3,4 &5). The amendment starts by stating that the new clauses will be inserted immediately after clause (3), while it should be clause (2). This is possibly a typo.

The proposed amendment to Article 98(1) has an inelegance. Paragraph (a) is to be deleted and a new paragraph (b) introduced. However, paragraph (a) is left blank. This seems an oversight.

In the Second Schedule of the BBI constitutional bill, the proposed 70 “additional constituencies” are to be delimited by the IEBC on the basis of criteria provided for in Articles 81(d) and 87(7) of the 2010 Constitution. Article 87(7) does not exist. The relevant Article would have been 89(7).

Suppose the IEBC was to argue that the BBI bill if passed does not give it proper guidance or criteria to determine the constituencies? Further, this anomaly invites potential court action.

Perhaps a more delicate issue arises from the Transitional and Consequential Provision (1) on delimitation of constituencies.

In the Constitution of Kenya (Amendment) Bill, 2020, there is no definition of “additional constituencies”.

The proposal to amend Article 89(1) substitutes the figure two hundred and ninety, with three hundred and sixty. Assuming BBI is passed, then the new Article 89(1) would read in part, “There shall be three hundred and sixty constituencies...” There is no mention of additional constituencies in that Article or in a definition section of the BBI bill.

This means the IEBC could use the criteria under Article 81 and its power under Article 89 to determine the 360 constituencies, while the BBI promoters expect the constituencies above the current 290 to be demarcated according to the above Transitional Clauses.

A constitution is the secular foundation of a nation.

When two dissimilar proposed constitutional initiatives are processed by legislative bodies, the entire constitutional review process becomes controversial.

Beyond the discrepancies alluded to above, there are other pertinent issues that we need, as a country, to reflect on.

Recently the High Court entertained a petition on the parts of the Constitution of Kenya (Amendment) Bill, 2020 that must be passed by Parliament and those destined to a referendum.

Article 255 contains those proposals that must be resolved by a referendum, such as the supremacy of the constitution; the sovereignty of the people; the bill of rights; the term of office of the president; independence of the judiciary; the functions of parliament; the objects, principles and structure of devolved governments; and so on.

Suppose Parliament passes the BBI bill, but the referendum aborts, is there a possibility that some legislators could argue that the non-Article 255 proposals are already legislated as part of the 2010 Constitution, thereby occasioning a constitutional crisis?

Many Kenyans have proposed that the country’s meagre public resources should be utilised to keep counties and devolution afloat, combat Covid-19, revamp the economy to stem rising unemployment and generalised loss of livelihood, and support the urban poor and the youth.

Realistically how shall we defray the cost of the country’s escalating public debt, the referendum, constituency delimitation, the 2022 elections and the added financial burden of implementing BBI proposals were it to pass? It appears we are biting more than we can chew.

We are now 15 months to the next general elections. Do we still have time for two elections (since a referendum is analogous to a general election) and all the other intervening processes?

Assume BBI passed and the representatives of the five most populous ethnic groups were part and parcel of government. What of the 40 or so ethnic communities, which would not be accommodated within apex leadership?

Tribal ideology and consciousness impede national unity instead of fomenting it. Isn’t it also factual that the political elite represent primarily their own interests and not necessarily ethnic interests?

No wonder Kenya’s previous people-driven constitution-making spanned from 1988 to 2010 while BBI is intended to be accomplished between 2018 and 2021.

A pentagon of key ethnic pointsmen/women is not likely to dramatically improve our governance.

Only genuine servant leadership supported by the people can re-invent our democracy, nationhood and economy.

Up to now the 2010 Constitution has been minimally implemented in the areas of human rights, independence of the Judiciary, supremacy of Parliament and so on.

If BBI proposals are passed, would all of them be implemented as well? If any are speedily implemented, that would beg the question why the 2010 Constitution has, by and large, been a horse without a rider; why the Judiciary has assumed the unenviable duty of repeatedly cajoling a reluctant political class into the saddle.

Political expediency

We must, again, as a country ask ourselves: Are we creating a culture of using constitutional change for political expediency, which ends up hurting the nation and the people?

Arguably, what we need is a genuine national conversation on the basis of Article 1 on peoples’ sovereignty and Article 10 on national values and principles of governance in which all Kenyans, their communities and sectors participate as equal partners.

The political class has always had its own conversations from which the masses are excluded. It is now time to develop consensus on a New Kenya that can equitably accommodate all citizens.