10 burning issues to make or break BBI

Ten contentious issues will determine the fate of the referendum campaign as promoters of the Building Bridges Initiative (BBI) set off to collect one million voters’ signatures to back the constitutional amendments.

These are the issues repeatedly contested by various interest groups and around which the resistance against the BBI referendum campaign seems to be building up. 

Read:  BBI Report

How BBI proponents explain them to the public to push back the narrative by critics – especially since the window for amendments appears to have closed – will influence the success or failure of the campaign in the vote expected in June.

These are the main sticky issues and why they have kicked up a storm. 

1. A prime minister, two deputies appointed by the President

BBI has proposed expanding the national executive through these extra positions to ensure more inclusive leadership and end ethnic violence caused by the winner-take-all system.

But critics, including Deputy President William Ruto, have questioned how this will help losers, given the winning party or coalition of parties will still scoop the top posts. The proposal has been criticised as a jobs jamboree for politicians, seen as designed to install an imperial presidency.   

"To give the President the power to appoint the prime minister and the two deputies risks consolidating more power around the President, thereby creating an imperial presidency. This amendment could be creating the same problem it set out to solve," Catholic bishops said in a recent statement.

2. Extra members of Parliament

The recommendation for a 360-member National Assembly, each elected from 290 constituencies constituting single and multiple member constituencies, and 94-member Senate, being one woman and one man from each county, has sparked criticism of a bloated Parliament that will further escalate the runaway public wage bill.

The distribution of the extra 70 National Assembly seats and election of those members through party lists have also caused controversy.

“We demand a distribution that guarantees each of the 47 counties has at least one slot,” the Pastoralists Parliament Group (PPG) and the Frontier Counties Development Council (FCDC) demanded of the 70 slots.

"There is no reason we should have such a large number of legislators. We do not want more government but better government," Catholic bishops said of the proposal to increase the number of MPs to 454, up from 416.

3. Scrapping of woman representative seat and how to achieve two-thirds gender rule

BBI proposes the removal of the post of county woman representative in the National Assembly, instead proposing party lists be used to fill the gender quota.

However, Inua Mama — a group of women lawmakers associated with Dr Ruto — have demanded the retention of the position.

"We interpret the proposal in the BBI as seeking to give inordinate power to political party leadership so that they can exercise control over MPs and the legislature as a whole," said Nyandarua Woman Rep Faith Gitau, who read the statement on behalf of the more than a dozen MPs.

4. Judiciary ombudsman

The BBI recommends establishment of the Office of the Judiciary Ombudsman, whose holder will be appointed by the President following the National Assembly’s approval.

The Judiciary Ombudsman, proposed to sit on the Judicial Service Commission (JSC), shall receive and conduct inquiries into complaints against judges, registrars, magistrates, and other staff of the judiciary.

After investigating the complaint(s), the Judiciary Ombudsman shall prepare regular reports to the JSC, stating the findings and recommendations on the action to be taken by the commission.

The Kenyan section of the International Commission of Jurists (ICJ Kenya) acknowledged the Judiciary already has an ombudsman as an administrative office headed by the deputy chief justice, but argued the push to create an independent complaints mechanism, though welcome, would violate the principle of separation of powers.

“While we welcome the need to create an independent complaints mechanism within the Kenyan Judiciary to enhance transparency and accountability, the recommendations presented in the BBI report on creating the office of the Ombudsman offend the spirit of separation of powers,” ICJ Kenya has stated. 

“The Judicial Ombudsperson exists. It has been in existence since 2011. Now it’s headed by DCJ. Did BBI know this?” asked former Chief Justice Willy Mutunga.

The Council of Governors (CoG) has demanded that the recommendation in the BBI document on the Judiciary Ombudsman be deleted.

5. The Kenya Police Council

BBI proposes to do away with the National Police Service Commission (NPSC) and instead create a council chaired by the Interior Cabinet secretary.

The council, which includes the inspector-general of police, two senior members of the National Police Service units appointed by the President and the Interior principal secretary, shall be responsible for overall policy, control and supervision of the National Police Service.

However, critics have charged this is an attempt to exert executive influence on the police and warned of the risk of sliding into a police state.

The Police Reforms Working Group-Kenya (PRWG-K) noted the NPSC, which is tasked with ensuring the recruitment, training, compensation, deployment and performance of police officers, matches international best practices and it is not yet clear how the proposed council adds value to the current structure of the NPSC.

“More alarmingly, as currently designed, the proposed council further undermines the independence of the Office of the inspector-general,” the PRWG-K has cautioned.

“By expanding executive and presidential control over the National Police Service, the independence envisaged in the Constitution is weakened. Should this proposal pass in its current form, the country will be predictably returned to an era when the police acted and were perceived as an extension of the ruling Executive,” it added.

Catholic bishops also cautioned: “The proposed formation of a Kenya Police Council headed by the Cabinet secretary for Interior … is likely to make Kenya a police state and compromise the independence of the police from the Executive.”

6. Governorship candidates to appoint running mates of opposite gender

BBI proposes an amendment to the Constitution to provide for the candidate of the county governor, in nominating a deputy governor, to consider a person who is not of the same gender as they are.

Governors have challenged the proposal to dictate nomination of a running mate, with the CoG demanding: “Deputy governors should remain as running mates to the governor and should be of either gender.”

7. Political parties to nominate electoral commissioners

The BBI proposes that the Independent Electoral and Boundaries Commission (IEBC) consist of seven members, four of whom shall be representatives of parliamentary political parties.

“The independence of the IEBC as an election arbiter is paramount and must be devoid of political party interference,” Pastoralists Parliament Group and the Frontier Counties Development Council said in their irreducible minimums on changes to the BBI report.

“The proposal to have political parties appoint members to IEBC is a dangerous one since it will politicise IEBC, hence compromising its independence. This proposal will turn IEBC into a political outfit with partisan interests,” Catholic bishops also cautioned.

Another BBI proposal to exclude current electoral commissioners from rigorous constitutional mechanism for removal from office to allow for their vetting to determine their suitability to continue serving has infuriated the Wafula Chebukati-led team.   

“This targeted onslaught against the commission is not new as it has been occurring after every general election since 1992. The sustained campaigns weaken and interfere with the independence of the commission,” IEBC said in a statement on the BBI report.

It added: “The criminality and unsuitability to hold office narrative driven by certain members of the political class is meant to incite the members of the public with the intention of mob-lynching the commission and its staff and also to create justification for the ‘clean-slate’ recommendation in the BBI report.”

8. Resource allocation (equitable share)

The BBI proposes to expand the criteria for determining equitable share to also “ensure the average amount of money allocated per person to a county with highest allocation does not exceed three times the average amount per person allocated to a county with the lowest allocation.” 

Additionally, the criteria to include “the need to eradicate corrupt practices and wastage of public resources”.

“The proposed amendment be deleted and Article 203 of the Constitution be retained as it is stipulated,” said the PPG and the FCDC.  Mandera Governor Ali Roba is the FCDC chairman, while former National Assembly majority leader Aden Duale is the patron of the PPG.

9. Senate powers

On decisions of the Senate, the BBI proposes doing away with the concept of voting by delegation in the Senate and consequently result in members of the Senate having an equal vote.

BBI rejected proposals to make the Senate the upper House.

Governors want the Senate accorded more powers.

“Senate should be strengthened by ensuring that it has veto powers on all Bills,” the CoG has suggested.

10. Health commission

The BBI report recommends an amendment to the Health Act to establish the Health Services Commission. The commission is to make recommendations to the government on national policies for management of health workers, monitor implementation of national policies for management of health care workers by county governments and recommend appropriate action and set and regularly review norms and standards on health matters.

However, this fell short of the constitutional commission that health workers have been lobbying for.

Their unions had wanted a Health Services Commission mirroring the Teachers Service Commission, which would be responsible for training, recruitment, deployment, transfers, and promotions so that health workers are not at the mercy of governors.

“In all our presentations, we made it clear that we need an independent constitutional body to manage human resource for health so as to address health workers issues from a central point. For instance, if you go to some counties, health workers have not been paid for three months. I am speaking on behalf of health workers. If our views are not captured, we will reject BBI,” warned Kenya National Union of Nurses Secretary-General Seth Panyako at a briefing attended by representatives of the Kenya Medical Practitioners, Pharmacists and Dentists Union and the Kenya Union of Clinical Officers.

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