Supreme Court factor in Ruto, Raila presidential contest

The Supreme Court’s judgement annulling the Building Bridges Initiative (BBI) constitutional amendment process has thrust legal reforms to the centre of the General Election agenda, with leading presidential contestants hoping to ride on the outcome.

Azimio presidential flagbearer Raila Odinga and Kenya Kwanza’s William Ruto’s teams have been claiming victory, citing the Supreme Court decision to re-energise their bases. 

 Read: How Uhuru's hand bungled BBI process

There were street celebrations in Eldoret on Thursday as the Supreme Court decision was seen as a victory for Deputy President Ruto over Mr Odinga. 

The celebrations were led by Uasin Gishu Woman Representative Gladys Shollei, who is a member of the United Democratic Alliance (UDA), a party associated with Dr Ruto. 

For Mr Ruto’s supporters, the judgement marked the defeat of a “state project” they opposed from the very beginning.

But speaking at a rally in Murang’a yesterday, Wiper boss Kalonzo Musyoka, whose party is a member of the Azimio-One Kenya alliance, said the ruling was favourable to the amendment proponents, “as it paves the way for a review of the Constitution”.

“I have heard my friends (Ford Kenya leader Moses) Wetang’ula and (Amani National Congress’ Musalia) Mudavadi say President Uhuru Kenyatta was left with egg on his face. It is nothing of the sort,” Mr Musyoka said.

City lawyer Tom Ojienda, who is eyeing the Kisumu Senate seat on Mr Odinga’s Orange Democratic Movement (ODM) ticket, said the judgment offers an opportunity for substantive legal and constitutional reforms. 

“It provides a chance for BBI proponents of BBI to come up with an even better document. The Supreme Court has only given us half time. The second half is coming,” Prof Ojienda said.

The seven-judge bench ruled some items in favour of the Constitution of Kenya Amendment Bill 2020 namely the basic structure doctrine, immunity of the president from prosecution, public participation, and composition and quorum of Independent Electoral and Boundaries Commission (IEBC). 

Also read: Rule against basic structure revives BBI backers’ dreams

However, the judges declared illegal the proposed amendments by the BBI. The court said President Kenyatta’s involvement in the process was unconstitutional and that the effort to create an additional 70 constituencies was unlawful.

With the General Election only four months away, the judgment has offered both camps room to mobilise their bases by portraying their sides victorious. 

At the same time, it has put the drive to change the Constitution back into the campaign messaging and rhetoric.

Azimio leaders are telling their supporters that the push to amend the Constitution is on course and will be reopened if they win the presidential election. 

“For Azimio, the framing in the campaigns will be that this is just a postponement of the issue, though in reality the dust has settled on BBI except that the judgment brought some clarifications,” University of Nairobi political scientist, Richard Bosire, said yesterday.

According to Dr Bosire, though tying BBI to the economic hardships being experienced in the country would be appealing to Dr Ruto’s camp, it may not change the minds of many Kenyans politically. 

“Thursday’s outcome and the framing by different political groupings may not add much to either side. Politically, it doesn’t make a difference though it will be a constant topic on the campaign podium,” Dr Bosire said.

Dr Ruto will be happy that the judgment denied his opponents the chance to build a more formidable coalition that would have proved difficult to campaign against.

But even as each side claims a win, there is the issue of coalition building that the judgment impacts heavily.

Expand the Executive

“It makes it very hard for both camps to build coalitions because the thinking was that if it went through it would have been very easy to promise people positions. That creates a challenge,” Mr Martin Andati, a political commentator, said. 

The BBI bill had proposed to expand the Executive to include a Prime Minister and two deputy Prime Ministers. 

The PM would have been the leader of government business at the National Assembly, whose core task would be to oversee government legislative agenda and supervise operations in ministries and state departments.

The bill had further proposed that the runner-up in the presidential race was to get an automatic nomination to Parliament and handed the leader of official opposition role.

In a broad-based coalition such as Azimio with more than 20 parties, the BBI would have come in handy on sharing out the government. Without it, the only position available to the presidential candidates is that of the deputy president. 

In Azimio and Kenya Kwanza formations, Mt Kenya is pushing for one of its own as deputy president. 

At the same time, Mr Odinga and Dr Ruto are grappling with the positions to offer Mr Musyoka and Mr Mudavadi respectively. 

“Psychologically, Kenya Kwanza wins because it looked like it was not for BBI. Ruto appears to be celebrating,” Mr Andati said. 

“The celebratory mood is being transferred to supporters, who see him as a hero for having taken on the two prominent leaders and won.”

Sticking to his theme of BBI being a project of the elite, the DP immediately challenged Mr Odinga and Mr Kenyatta to apologise to Kenyans for spent public money on the process.

Also read: Ruto on BBI - Uhuru, Raila wasted our time, resources

“We expect promoters of the BBI nonsense to apologise to the public because the Court has ruled against it,” he said.

Initially a proponent of the BBI before joining the DP, Mr Mudavadi has turned into a critic of the process. 

Soon after the judgment, he took to social media to applaud the Supreme Court in remarks seen as an attack on the President and Mr Odinga.

“Kenya is indeed fortunate to have a strong and independent Judiciary to which the people can always turn to when those in power become outrageously impertinent,” said Mr Mudavadi tweeted.

For Mr Odinga, the decision upheld the BBI and offered an opportunity to tweak its proposals to suit the judgment.

“The judgment is a much desired reiteration of the sovereignty of the people of Kenya, particularly in the backdrop of questions surrounding amendments to the Constitution,” Mr Odinga said.

“We shall deliberate... and decide on a course of action that protects the interests of those who voted to see the amendments come to light.

After the disruption of his rally in Iten yesterday, Mr Odinga will today lead the Azimio brigade to West Pokot where the Supreme Court decision will likely dominate speeches. 

Mr Musyoka has confirmed that he will be at the rally. 

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