Calls for the revival of stalled proposals to create new Executive positions have become bolder, suggesting ODM leader Raila Odinga is dealing the card in coalition negotiations to bolster his presidential campaign.
The promise to implement the constitutional changes to facilitate power sharing should his party form the next government is the latest campaign strategy Mr Odinga is using to appease new and former allies, including One Kenya Alliance (OKA) leaders.
On Tuesday, the creation of the post of Prime Minister and two deputies were among the Building Bridges Initiative (BBI) proposals that President Kenyatta insisted will be achieved despite a Court of Appeal setback, buttressing the position by Mr Odinga that the BBI will be back.
With the Supreme Court, which begins hearing the BBI appeal in January as the last resort, Mr Odinga’s camp is committing to revive the constitutional changes should his party win power.
And this is interpreted as dealing the last card to woo allies to form a broad coalition with the understanding that the positions will be created post-election, presumably with the commitment ring-fenced in a pre-election agreement.
Proponents of the new positions argue an expanded Executive will accommodate more communities in leadership to address the winner-takes-all outcome, blamed for polls violence. The new posts would also have offered more flexibility in power sharing in an anticipated broad coalition involving proponents of the truce between President Kenyatta and Mr Odinga.
It’s against this backdrop that President Kenyatta and Mr Odinga have insisted the BBI dream, which also includes more resources to the counties and proportional representation, must be achieved.
On Tuesday, the President regretted the court’s rejection of BBI.
“We cannot behave like the proverbial ostrich and bury our heads in the sand. A constitutional moment does not resolve itself, simply by being ignored,” he said.
“The need for political stabilisation is the most urgent task facing Kenya today, and it is the foundation upon which our greater justice, fairness, health, wealth, and security will be built on. For that reason, it shall happen,” the Head of State declared.
In various Azimio la Umoja rallies Mr Odinga has insisted BBI will resume soon.
Last month, the ODM leader said in West Pokot: “Under BBI, we had proposed to raise funds coming to counties from 15 per cent to a minimum of 35 per cent. They shot it down but I would like to assure Kenyans that it is just on half-time.”
The allies of the two leaders have amplified these positions, suggesting BBI will be a defining feature in succession politics.
“The President knows that this country is going to get into safe hands after him. I believe that will be Baba. That means that the aspirations of Kenyans will be achieved,” said Suna East Junet Mohammed.
Ndaragwa MP Jeremiah Kioni, who has sponsored a Bill that seeks the creation of new Executive positions, said: “The fact that we had already gone through the process substantially means there are many ways of going back to the document or the process and finishing the bit that was left.”
National Assembly Majority Leader Amos Kimunya explained that the focus of the President was not on BBI but the challenge it was meant to address.
“That challenge is still alive and requires a solution in whatever form by future leaders,” Mr Kimunya said.
But Deputy President William Ruto’s camp warned against attempts to revisit BBI.
“I hope the President is not trying to flog a dead horse in the name of BBI. Let it rest,” said Garissa Township MP Aden Duale.
“Unfortunately, the people we lead, Mr President, are not interested in constitutional changes. Kenya is not in a constitutional moment. Kenya is in an economic moment,” said Kiharu MP Ndindi Nyoro.
Legal experts have ruled out the parliamentary route to implement BBI, explaining that the passage of two Bills currently before the National Assembly is not enough; a referendum is required.
Constitutional expert Bob Mkangi said the High Court and Court of Appeal rulings on BBI were clear that anything that touches on the basic structure must be subjected to a referendum.
“Affecting the system and structure of governance is at the core of the Constitution and cannot be amended whimsically by Parliament,” Mr Mkangi said. He also ruled out the possibility of having the referendum question as a ballot during the General Election saying there is no legal route to invoke it.
Makueni Senator Mutula Kilonzo also pointed out that none of the two Bills can be implemented without a referendum and termed any attempt to revive BBI as wishful thinking.
“I would advise them to abandon this cause,” the senator said.