BBI promoters should abandon an illegal process
From left, Building Bridges Initiative secretariat co-chairmen Denis Waweru (left) and Junet Mohamed (centre), Fafi MP Abdikarim Osman (second left, back row) and Jubilee party secretary-general Raphael Tuju during a press conference in Nairobi, on May 14, 2021. They said they will appeal the ruling that declared BBi process illegal.
Of course the government is going to appeal against the judgment that stopped the Building Bridges Initiative (BBI) process, but is it really worth it? What is it that the two promoters know that we do not?
The High Court judgment was based on primarily one fact – the process was flawed from the very first step – shaking hands and clothing the act of two gentlemen shaking hands to stop ferment in the country as a popular act that should culminate in an amendment of the Constitution.
This initial illegality then triggered a series of 20 other unlawful actions – constituting the BBI team and secretariat, the canvassing of opinions and views from the public, the verification of signatures by the Independent Electoral and Boundaries Commission (IEBC) which did not have a quorum for that purpose, etc.
A key recommendation of the BBI team that there will be created 70 extra parliamentary seats to be distributed in a prescribed manner was also unconstitutional as that is the sole mandate of the IEBC.
The court found also that money wasted in this illegal process should be refunded and that the President, in his individual capacity, contravened Chapter 6 of the Constitution and thus exposed himself to potential prosecution.
It was a judgment almost as momentous as the September 2017 Supreme Court judgment nullifying the result of the presidential election and its effect, at least temporarily, will be almost as profound.
The President should not sign into law the BBI Bill that was passed by Parliament and the Senate these past few days. The Bill should not be transmitted to the IEBC for it to start the planning for a referendum.
And even if it was to illegally receive the Bill, the IEBC has been specifically prohibited from proceeding with any plans to hold a referendum.
CJ nominee’s first test
Unless the appeal process is fast-tracked and the arguments are heard and concluded to the satisfaction of the plaintiffs, in this case the BBI promoters (advised by the Attorney-General), there may be need to move to the Supreme Court where Chief Justice nominee Martha Koome will have her first key test of presiding over a matter very close to the heart of the President.
If that were necessary, it is unlikely the two legs of appeal will be concluded quickly enough to give the IEBC ample time to conduct the referendum and leave room for the other legal processes to be concluded in time for an amended Constitution to be in place before next year’s general election.
That is assuming the referendum question is assented to by the public that is currently fired up by fresh anger over the patently unfair proposed distribution of the 70 extra seats in Parliament. This matter generated significant disquiet among MPs during debate.
The public also will be taking a fresh view of the BBI process against the very elaborate dismantling it has been subjected to by the High Court.
Sober environment
In a sober environment, such a legal setback as has hit the BBI process should lead to an introspection with a logical consequence being for the promoters to pull back the sails, anchor the juggernaut and recalibrate the settings, perhaps even initiate a tactical retreat because they really are putting the country in a politically untenable position at the most inopportune time when it is confronting a pandemic with its hands tied at the back as it has no money!
Should two people, ironically supporting the initiative for different selfish purposes, subject the country to such unnecessary trauma?
Certainly, there is no unanimity of opinion the BBI will cure effectively all the ailments that were diagnosed by the BBI Steering Committee. Some it might, many it will not.
The answers to some of the most vexed challenges facing the country are not in BBI. They are in enacting existing recommendations in reports the Ndung’u Report, the Kreigler Report, the Waki Report, etc.
Even if BBI did contain some gems that can save the country from falling into an abyss, there is no urgency like that being trumpeted by the promoters.
The court has told them no, at round one. Whichever direction the next round or two take, the voter now has extra ammunition to shoot this thing down.
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