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Kenya’s Unconstitutional Constitutional Proposals under the Building Bridges Initiative

By Westen K. Shilaho, SARChI in African Diplomacy and Foreign Policy, University of Johannesburg

The rapprochement between Uhuru Kenyatta and Raila Odinga that happened in March 2018 in the wake of yet another acrimonious election in 2017, is a band aid to Kenya’s deeply divided society and troubled multiparty politics. Informally referred to as the handshake, it culminated in proposals for constitutional changes called the Building Bridges Initiative (BBI). This is a two-man elite pact between Kenyatta, Kenya’s president and the scion of Kenya’s first president, and Odinga, a seasoned oppositionist turned Kenyatta’s ardent loyalist. Odinga is son to Kenya’s first vice president. The entente halted political instability arising from disputed presidential elections where the two were the leading contenders. Like previous elite pacts, the pact expediently sidestepped structural issues at the core of Kenya’s divided polity. It does not address historical injustices specifically land dispossession, impunity, exclusive politics and a predatory political elite disdainful of the populace. Instead it is aimed at politically neutralising Kenyatta’s deputy, William Ruto, who fell out with Kenyatta over the rapprochement. Ruto is openly campaigning to succeed Kenyatta while Kenyatta, intent to unilaterally shape his succession, interprets it as effrontery.

The author, Professor Westen K. Shilaho

Although Kenyatta and Odinga portray BBI as the magic bullet for Kenya’s cyclic fraudulent elections, related disputes and violence, BBI is a cynical power sharing deal between them and affiliated political elite. Insidiously, it contravenes the rule of law and constitutionalism and advances deceit, ethnicity and betrayal emblematic of Kenya’s politics. This constitutional review process is, therefore, illegal. It has no provision under Kenya’s constitution but seeks to amend 13 of the 18 chapters of the country’s constitution. Kenyatta left out his deputy, Ruto while Odinga locked out fellow oppositionists. The irony is that they purport to build bridges while simultaneously demolishing others. BBI is therefore manifestly personality centred, exclusive, and divisive much as it is mischaracterised as an enabler of social cohesion and a bulwark against political instability. The launch of the BBI report was testament to its exclusivity and divisiveness. Ruto was heckled by a hostile crowd loyal to Kenyatta and Odinga when he dissented and questioned the logic behind salient proposals in the document such as equating expansion of the executive to ethnic inclusivity.

This booing smacked of political intolerance. The foreclosure of debate, demonization of opponents, use of security forces to collect signatures in endorsement of the BBI changes, efforts to bribe members of county assemblies (MCAs) to pass the BBI bill, and use of state apparatus to force Kenyans to approve proposed changes through a referendum, vindicate critics who dismiss BBI as a ruse by Kenyatta to manipulate his succession and either extend his tenure or retain power within a tiny incestuous political elite for fear of possible reprisals once out of power.

Shilaho’s 2018 book

An informal pact yet state funded and promoted by state operatives, BBI is embedded in impunity. Ironically its proponents assert that BBI is the antidote for Kenya’s broken politics and society. As evidenced by its conception, process and content, BBI entrenches ethnicity, weakens institutions, and hoists personality cults. It is unstructured (changes were made on the hoof), has been processed through hysterical mass rallies, and town hall like choreographed sessions and suggests constitutional amendments in defiance of the constitution. Flawed, illegal and illegitimate, the process had begotten an outcome with similar attributes.

Kenyatta, Odinga and their supporters insist, unconvincingly, that this initiative will address the winner-take-all politics. Although Kenya’s electoral system is first-past-the-post, this is not the cause of chronic stealing of elections or the ensuing violence. Disregard for the rule of law by a rogue political elite perfected by Kenya’s successive presidents, is the crux of the problem. Counties, the second tier government in place since the promulgation of the Constitution of Kenya in 2010, were meant to neuter zero sum politics through decentralisation of power, resources and decision making. However, counties have been denied revenue due to them, and face sustained interference by Kenyatta keen on political centralisation. Popularly elected governors are deferential to either Kenyatta or other tribal warlords because of ethno-regional politics, state intimidation, threats of impeachment and arrest on trumped up charges.

“Although Kenyatta and Odinga portray BBI as the magic bullet for Kenya’s cyclic fraudulent elections, related disputes and violence, BBI is a cynical power sharing deal between them and affiliated political elite. Insidiously, it contravenes the rule of law and constitutionalism and advances deceit, ethnicity and betrayal emblematic of Kenya’s politics. This constitutional review process is, therefore, illegal.”

Kenyatta has forcefully taken over Nairobi county and placed it under Nairobi Metropolitan Services, an illegal entity headed by a military man. While addressing his co-ethnics simulcast through radio stations that broadcast in his vernacular, Kikuyu, Kenyatta admitted that he instigated the impeachment of Mike Sonko the flamboyant immediate governor of Nairobi. Other governors implicated in corruption and loyal to Kenyatta and Odinga have been shielded from impeachment. Sonko, formerly a diehard supporter of Kenyatta’s, had resisted this takeover at the centre of which is contestation over control of Nairobi county and its resources. Kenyatta then tried to scuttle a by-election and had a lackey sworn in as the deputy governor with the intention of elevating her to the governor position. By the time Sonko was impeached, he did not have a deputy. In January 2020 and while on suspension for graft accusations, Sonko nominated a woman to that position but he did not appoint her after the court barred her vetting when the legality of the nomination was challenged in court. Following a favourable ruling, this individual was swiftly vetted and sworn in as the deputy governor after Sonko’s impeachment. Kenyatta fears that his preferred candidate would be defeated in a by-election. A possible backlash from supporters of the immensely popular Sonko and infighting within the ruling party would complicate his quest to control the capital city. At the time of writing the Law Society of Kenya had petitioned the court to declare the filling in of the position of deputy governor in the absence of the governor unconstitutional and rule that preparations for a by-election must proceed.

It is disingenuous of BBI proponents to suggest that the winner-take-all electoral system accounts for Kenya’s perennially adversarial politics anchored in ‘us’ versus ‘them’ binary. Kenyatta, like his predecessors, is insensitive to Kenya’s diversity, habitually ignores court orders, does not uphold the doctrine of the separation of powers and is not bound by constitutionalism. Historically, the office of the president is a seasoned incubator of divisions in Kenya. Cyclic electoral violence is triggered by perennial electoral fraud enabled by a politicised bureaucracy, malleable institutions foremost being the electoral body, and the judiciary and resort to state violence to suppress protests and intimidation to thwart redress. Self-servingly, BBI had proposed that the credibility of elections could be restored by giving party leaders the prerogative to appoint commissioners to the electoral body. It was subsequently expunged following condemnation. In Kenya, political parties are no more than tribal enclaves and this provision sought to place election management under tribal barons. Through BBI, Kenya’s political elite are conniving to hoard power by tearing down accountability mechanisms and restricting the populace to pawns in low stakes politics. Upon co-opting Odinga and other oppositionists, Kenyatta believes that he could count on a cross-ethnic support to overhaul the Constitution and reset the presidential two term limit as is becoming normative across Africa. BBI has received priority amidst a stifling debt crisis, poverty, inequalities, joblessness, the coronavirus pandemic among other challenges. Crass tribal barons, their overzealous supporters and pliable institutions, are Kenya’s existential threats not the Constitution.

What BBI apologists have elected not to appreciate is that democracy entails competitive elections under agreed upon rules enforced by robust institutions. Political competition, that the elite wants to replace with institutionalised backroom deal making, is not the cause of Kenya’s divisive elections and the ensuing violence. The so called win-win outcome that the BBI report contemplates is unashamedly elitist and bizarrely attributes character flaws seen through pervasive impunity, capriciousness, and politicisation of tribalism to political competition. They conflate parochial interests of the political elite with the collective wellbeing. Following credible elections, winners and losers emerge. Thereafter, winners ought to govern failure of which they risk being voted out or even hounded out of power through protests. Losers ought to assume their watchdog role as the political opposition, capitalise on the blunders of the ruling party and act as the government in waiting. Regardless of the electoral outcome, the electorate has a right to public goods. Even those who did not vote have a right to hold the government to account. Pointedly those who voted for a regime that subsequently fails them reserve the right to withdraw their support. Substantively, credible elections mean that today’s winners are potential losers tomorrow and vice versa. In Kenya, however, losers are the citizenry held to ransom by conniving, vacillating and predatory political elite bereft of principles. Devoid of ideological commitment, these politicians fragment and coagulate opportunistically depending on positioning in relation to state largesse.

The BBI report (in which signatures of two members are similar) contains a raft of proposals with far reaching ramifications to the structure of governance one of which is to expand the executive with additional positions of the Prime Minister and two deputies appointed by the president and creation of the office of Leader of the Opposition ostensibly to ensure that elections do not produce winners and losers. Needless to say that this is not the answer to ethnic exclusion or intractable governance deficits in Kenya. In fact, it is scornful of inclusivity because it crassly equates creation of positions for tribal warlords to inclusivity. As appointees of the president, these individuals would effectively be his lackeys, further consolidating power in the person of the president, a throwback to the autocratic one party state that Odinga relentlessly opposed and was detained for his stance. Coupled with the proposal to expand parliamentary membership, the expansion of the executive does not respond to questions regarding responsive leadership, accountability, justice and equity. Additional parliamentary seats, that shoot membership in the bicameral House to almost 600, are no more than sinecures that would only increase an already high government wage bill and not rejig governance at all.

The constitution under article 43 spells out social and economic rights that Kenyatta has ignored instead the BBI bill introduces “responsibilities of citizens” which hints at authoritarianism. Kenyatta relates to the state as if it were his personal property, that he exploits to advance personal economic interests in contempt of conflict of interest and the rule of law. Thus he is wary of the seamless transfer of power.

Of concern also is that BBI reduces the judiciary to an appendage of the executive through the Judicial Ombudsman, a presidential appointee, which would obliterate what remains of a severely weakened judiciary yet to recover from the legacy of one party dictatorship. This proposal is in furtherance of Kenyatta’s sustained assault on democratic tenets, particularly the bill of rights and the doctrine of the separation of powers. Previously, Kenyatta had attempted to morph the judiciary and oversight bodies with the executive by an executive order which elicited a backlash. For over a year now he has inexplicably refused to appoint 41 individuals as judges following a recommendation by the Judicial Service Commission, a breach of the Constitution that the immediate Chief Justice, David Maraga, decried and over which he called for Kenyatta’s impeachment.

Uhuru Kenyatta

A proposal that the president appoints some of the cabinet ministers from among members of parliament ostensibly to ensure that cabinet ministers are accountable to parliament is meant to entice politicians to support BBI and weaken parliament further. The constitution, approved in 2010, outlawed selection of cabinet ministers from parliament for parliamentary independence. Previous Kenyan presidents abused the prerogative to appoint cabinet ministers from parliament to further weaken the legislature. Kenya’s history, however, shows that whether cabinet ministers were appointed as technocrats or not, parliament tended to be subservient to the executive owing to strongman politics, ethno-regionalism and opportunism. Effective 2013, cabinet ministers do not double as MPs yet the current bicameral parliament is beholden to Kenyatta and does its bidding. The constitution provides for checks and balances, ethos and its implementation obviates BBI. However, a rogue executive has encroached on the legislature, judiciary and independent oversight bodies. The media too is timorous and uncritically propagates Kenyatta’s views almost in a propagandist fashion instead of probing in the public interest. Civil society is equally tame.

A suggestion that the police be placed under a presidential appointee in the Ministry of Interior was shelved but that does not imply that the Kenya police, as currently constituted, operates as stipulated by the law. It is politicised, corruption riddled, and epitomises impunity and lawlessness. The police are an extension of the executive thus integral in suppression of political opposition, dissent and commission of extrajudicial executions. The old order resists security sector reforms which are meant to place the police under civilian oversight and infuse ethos into its operations. The police are a metaphor of an unreformed Kenyan state.

The political fallout between Kenyatta and his deputy, Ruto, over BBI, disregard for the constitution, and refusal to implement statutory reports with recommendations for redressing Kenya’s historical injustices underscore amnesia. BBI does not provide redress for land dispossession, poverty, inequalities, endemic corruption, mass atrocities against communities, and fraudulent elections and the resultant state violence. Kenyan politicians have learnt nothing from its tempestuous, if not tragic, history. BBI is opaque, non-participatory, divisive and bodes ill for Kenya’s political stability. Fearing that Kenyatta is using it to undercut him politically and possibly derail his presidential ambition, Ruto has embarked on a whirlwind populist campaign against BBI and to position himself as Kenyatta’s successor and upend Odinga, who is also angling to succeed Kenyatta.

Ruto has framed his messaging within an evocative “hustlers” versus “dynasties” dichotomy tapping into mass poverty, joblessness, state neglect and inertia, and the resultant frustrations wrought by successive regimes. Consequently, Ruto has yanked off a chunk of Odinga’s constituency historically associated with redistributive politics.

The “hustler nation” or the “wheelbarrow movement”, whose symbol is a wheelbarrow, identify themselves as a disenfranchised lot who, against great odds, eke a living from the margins of the Kenyan economy through sheer native cunning. They bear the brunt of state violence and neglect and see themselves as the oppressed pitted against their oppressors. Some of those who smashed the class ceiling and entered the elite group identify themselves as hustlers too and role model the hustler nation. Ruto consistently states that he rose from petty trading in chicken to his current position. . He emphasizes this background to present himself as the foremost hustler.

Contrastingly, dynasties are seen as a hubristic, self-entitled and exclusive political elite that draws its political and economic power not from grit, tact and acumen, but lineage, corruption, larceny, plunder and deft manipulation of tribalism. Dynasties are inheritors of the oppressive and extractive colonial state. Privileged, and alienated from the plight of the majority of Kenyans, dynasties have no regard for the rule of law, constitutionalism and equity. Ruto holds that this system is rigged against him and fellow hustlers in the sense that despite being the deputy president, dynasties perceive him as an interloper in Kenya’s power matrix only fit for the kingmaker role. On different occasions, he previously supported Kenyatta, and Odinga for their presidential bids and their political mentor, Daniel Moi, before them.

On the strength of his humble background, Ruto has dismissed elitism surrounding BBI. He insists that his opponents are scheming to constrain political power within a tiny plutocracy by expanding patronage opportunities through creation of additional cushy political offices for themselves and acolytes at the expense of the poor – hustlers. Jolted by Ruto’s astuteness, Kenyatta and Odinga have pressed the default mode of Kenya’s politics – the maelstrom of tribalism – to politically neuter Ruto. The hustler versus dynasties debate is arguably an unprecedented awakening of class consciousness among the urban poor and peasants for years condemned to the fringes of Kenya’s economy and decision making. The Kenyatta-Odinga axis fears that class consciousness could snowball into mass resentment against them and eventual political whipping were a referendum to be held over the BBI changes and subsequently come elections slated for 2022. Ruto argues that competing visions and leadership acumen must pivot Kenya’s elections not the “lottery of tribalism” and that the wellbeing of the masses must take centre stage in governance and policymaking.

 Kenyatta and Odinga counter that the presidency has to rotate to a different “tribe” other than Kikuyu and Kalenjin although they do not have concurrence on which tribe should be next in the queue. Odinga believes it has to be a Luo, himself to be exact, while Kenyatta is simply fixated on succeeding himself. Curiously, having succeeded a fellow Kikuyu, one wonders when Kenyatta realised that Kenya needs rotational presidency and that this approach would cure its upheavals.

The aim of the “rotational presidency” notion is to delegitimise Ruto, a Kalenjin, much as the implication is that all potential Kalenjin presidential aspirants and their Kikuyu counterparts are disqualified for now. Ironically, Kenyatta and Odinga are in alliance with Gideon Moi, a Kalenjin and son to a former president, who also harbours presidential ambition. Since independence in 1963, Kenya has had three Kikuyu presidents and one Kalenjin. Kenyatta and Odinga did not include the idea of “rotational presidency” in the BBI bill.

 As such, theirs is populist and divisive tribal mobilisation meant to clawback support lost to Ruto’s newfound class politics that seems to resonate with the poor across ethnic divides. Ruto is so adept in messaging that despite his immense wealth whose source is just as dubious, he has recast himself as the embodiment of pro-poor policies and their aspirations. This has reduced his formidable opponents, although backed by state apparatus, to reacting to his message.

Ruto’s opponents accuse him of inciting the poor against the rich that could spiral into “class war” yet Kenyatta and Odinga reinforce tribalism, a constant axis during cyclic election related violence.

 This is a fight to the bottom among cynically capricious political elite regardless of how suave or crass either camp appears to be. Kenya’s politics is still base, tribal, predatory and lean on programmes much as the introduction of class politics, hinged on dignifying work and unemployment, poverty, inequalities and an inclusive economy, is long overdue. Ruto’s attempt to reset Kenya’s politics and shift political competition and discourse away from visceral tribalism, if successful, could embed accountability and issue based politics in the body politic and accord him an unrivalled status in Kenya’s political history. If it assumes a life of its own, it could vanquish him and fellow tribal barons. Kenya’s inability to institutionalise compromise and manage democratic transition accounts for cynical elite pacts, ephemeral ethno-regional alliances and politics of deceit and betrayal. In this polity, politicians are soaked in impunity and are oblivious of the fact that sovereignty reposes in the people. BBI is political chicanery. Its proponents purport to infuse ethos in public life, yet the constitution spells out national ethos one of which is inclusivity and integrity in leadership which they have trashed. Kenyatta ought to uphold the constitution and should desist from tinkering with it for selfish ends because it could potentially plunge Kenya into further political instability.