August 26, 2021

Africa

KENYA: Constitutional referendum dead, presidential succession less certain

BY Anne Frühauf, Malte Liewerscheidt

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( 3 mins)

On 20 August, the Court of Appeal upheld a high court ruling declaring several aspects of the Building Bridges Initiative (BBI) unconstitutional. The ruling represents another blow to President Uhuru Kenyatta’s and opposition leader Raila Odinga’s plans to amend the constitution via a popular referendum, which appears dead in the water ahead of the 2022 elections. Running out of time, Kenyatta’s focus may now shift to derailing Deputy President William Ruto’s presidential aspirations by other means.

What next?

  • No referendum: The referendum project led by Kenyatta and Odinga appears all but dead as a result of the ruling. The two leaders are running out of time ahead of elections slated for 9 August 2022. Odinga had signaled ahead of the ruling that it was time to drop the referendum, though he also indicated his intention to revive the BBI if elected in 2022. A subsequent meeting by his ODM parliamentary grouping suggests tactical changes are still possible.
  • Further legal challenges: Legal challenges at the Supreme Court against aspects of the latest judgment are still possible. But even if these go ahead, the top leaders’ objectives seems to have changed: whereas the initial goal was to ensure that the referendum could be held ahead of the elections, appeals might now focus on challenging certain aspects of the ruling, e.g. the’basic structure’ doctrine that limits the powers to amend the constitution. From the perspective of the judiciary, which has increasingly demonstrated its independence since 2017, it appears unlikely that the Supreme Court would overturn two prior rulings in their entirety.
  • Constitutional changes via parliament? One of the options available to BBI proponents is to pass some of the BBI’s constitutional proposals via the parliamentary process. However, a broad omnibus amendment bill encompassing many BBI aspects would likely risk further legal challenges, not to mention the lack of time ahead of the elections. Instead, BBI proponents might push single-issue bills intended to salvage certain elements of the BBI. For instance, a private members’ bill already in parliament is intended to allow the president to appoint MPs to cabinet.

Implications for 2022 presidential race

The most important implication is that Kenyatta will now have to negotiate his succession on a completely different basis. The president had hoped to use the BBI and the patronage associated with it – including the planned creation of the posts of prime minister, two deputies, and an official opposition leader; 70 new constituencies; and raising county governments’ budget share to 35% – to build a broad-based anti-Ruto coalition. Instead, he must now outmaneuver his estranged former ally on the basis of the status quo of Kenya’s presidential system, which will make it more difficult to rally political heavyweights from other regions around Odinga. Key players like Musalia Mudavadi, Kalonzo Musyoka, Moses Wetangula and Gideon Moi, most of whom view the 2022 race as their last opportunity to secure the top job, may now be more reluctant to fall in line behind Odinga.

As a result, the presidential succession looks less certain than it did a year ago and Ruto’s presidential chances have improved. A July opinion poll suggests that no current candidate would win the presidential election in a first round, but at 43% of voter intentions, Ruto has a strong lead, well ahead of Odinga (14%), Moi (5%), Mudavadi (3%) and Musyoka (2%). Voter preferences will evolve as political alliances become clearer (15% of voters are currently undecided), but coalitions will undoubtedly be crucial for the winning platform.

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