- Just as political support for the Building Bridges Initiative (BBI) looked unassailable, the high court has ruled it unconstitutional.
- The ruling represents a major loss for President Uhuru Kenyatta and opposition leader Raila Odinga in their battle to overhaul the political system and sideline Deputy President William Ruto ahead of the 2022 presidential succession race.
- Even if Kenyatta’s administration were to win a planned appeal, at a minimum the legal setback will likely further delay the public referendum planned for mid-2021.
What’s at stake?
In response to eight petitions brought by groups of lawyers and civil rights activists, the high court’s bench of five judges on 13 May found that Kenyatta overstepped his powers when he initiated the BBI process. This is a major setback for Kenyatta and Odinga. After all, the BBI bill had received strong political backing: in recent months, it had sailed through county assemblies (with all but 4 of 47 endorsing the bill), the national assembly and the senate, all of which overwhelmingly approved the bill. For example, on 11 May, the Senate approved the constitutional amendment bill; 51 senators backed the draft legislation versus 12 who opposed it. Across counties, parliament and the senate, the votes on the bill reflected the split between allegiance to Kenyatta and Odinga on the one hand, and Ruto on the other. As a result, Kenyatta’s team had looked increasingly confident about its ability to win the required public referendum planned for mid-2021.
The BBI provides for the creation of new high-level posts including those of prime minister, two deputies and the official post of leader of the opposition. It also devolves additional power and funding (with county funding increasing from 15% to 35% of national revenue) to the 47 counties and envisages the creation of 70 new constituencies, the majority in Kenyatta’s Mount Kenya region. Controversially, the bill also provides for an ombudsman – appointed by the president – to oversee the judiciary. According to Kenyatta and Odinga, the bill’s overarching aim is to reduce the long-standing risk of disruptive and damaging electoral violence by removing the ‘winner takes all’ principle from electoral outcomes. However, it could also be considered an elite pact which aims to keep Ruto from power by enabling the formation of a broad electoral coalition. The price tag of the constitutional changes is another concern; a 35% county allocation and the creation of 70 new constituencies alone will cost an estimated at KSH 350-400bn.
In their unanimous judgment, the bench of five judges made 22 findings. Crucially, it found that the president had overreached, as “the president does not have the constitutional mandate to initiate any constitutional changes through popular initiative.” It also declared the BBI steering committee established in January 2020 unconstitutional. Instead, it held that a constitutional amendment can only be initiated through a parliamentary initiative under Article 256 of the Constitution or through a popular initiative under Article 257. The judges also declared the BBI bill's plan to create 70 new constituencies invalid because the power of deciding electoral boundaries rests solely with the Independent Electoral and Boundaries Commission (IEBC).
Kenyatta’s game plan is a swift appeal against the ruling, which will be joined by other interested parties, including the IEBC and Odinga’s team, within the 14-day window for appeals. Getting all the 22 rulings vacated could be an uphill struggle, but the more appeals filed, the better their chances of achieving at least partial success, if not at the court of appeal, then at the supreme court. A successful appeal would pave the way for Kenyatta to sign the bill into law and for a public referendum to be called. Kenyatta’s goal is to conduct the referendum before the end of August, 12 months before the 2022 elections.
An alternative scenario is that the appeal or supreme courts uphold all or some of the high court’s 22 findings. After all, 2017 created a powerful precedent of the court standing up to the executive. In a worst case, the BBI initiative could be dead in the water, as it would be difficult to restart the process from scratch ahead of the end of Kenyatta’s second term in 2022. However, the attorney-general has already filed for a stay order and notice of appeal, in which case the BBI process could continue while the appeals process drags out. In addition, or as an alternative, the president’s side could also try to reinitiate the BBI process via parliament, though this would likely delay the referendum further. In this event, amendments to some of the BBI content, including the executive structure, the addition of constituencies, the judiciary ombudsman, and gender representation, is plausible. If the BBI is repackaged via the parliamentary route, it will face fewer procedural hurdles than the popular initiative. Its passage would require two-thirds majorities in both houses.
While legal challenges, not only from Kenyatta’s side but also from the BBI opponents, seem likely to drag on for a few months, the bill is unlikely to die completely for now given the alternatives outlined above. Nevertheless, Kenyatta will be concerned about any delays to the planned referendum beyond August, because it would make it harder to influence the succession, which could strengthen the argument in favor of the parliamentary process. In the meantime, however, media headlines suggesting that the ruling could pave the way for Kenyatta’s impeachment certainly seem overblown given that the president and Odinga command a significant majority in parliament.
If a referendum does happen, eventually
Unless Kenyatta’s team ends up going the parliamentary route, his team still seems confident of being able to win a referendum. A January opinion poll by Tifa Research suggested lukewarm public support for the BBI (with just 29% of 1,550 respondents saying they supported the BBI changes, compared with one-third opposing them and the remainder undecided or unlikely to vote). Yet, Kenyatta’s side seemed very confident of being able to win a simple majority on the back of overwhelming recent support from the counties, MPs and senators; for example, it expects as many as 285 MPs to campaign for the bill. While the legal battles could dampen public support once again and Ruto’s side has argued that the bill primarily protects the interests of the first family, Kenyatta’s side has tried to win support by arguing that it will end electoral violence, further devolution, channel funding to counties, and would assure gender quotas.
The fate of the BBI will be a crucial determinant of who succeeds Kenyatta in 2022. Ruto could use the anti-BBI ruling to reinvigorate his presidential campaign that until recently had been losing momentum. On the opposing side, Odinga’s alliance with Kenyatta is founded on the BBI initiative. If the BBI is enacted, Kenyatta’s endorsement of Odinga becomes more likely. However, which camp other aspirants join will also be crucial: Musalia Mudavadi, Kalonzo Musyoka, Gideon Moi, and Moses Wetangula, as these political barons control crucial regional votes. Kenyatta’s succession strategy seems predicated on building a grand political coalition against Ruto, which would be much easier to accommodate under the BBI’s big tent.