The Building Bridges Initiative announced on 9th March, 2018, is President Uhuru Kenyatta’s idea to unify the country following the 2017 elections. In its original iteration, the BBI was intended to promote unity and settle the problems of exclusion, divisive and often violent electoral competition, and ensure equity in resource distribution in Kenya.
A task force was launched to provide a forum for Kenyans to speak to these issues and propose solutions for consideration and appropriate action.
Along the way, the BBI became the focal point for constitutional changes. As citizens, we recall that the journey to and post Bomas I (November 2019) was marked by exclusion in ownership of the BBI process and therefore suspicion, hostility and attempts at profiling Kenyans as pro- or anti- handshake. Kenyans persevered and overcame these divisive attempts and indeed, the Bomas I document was largely accepted by all Kenyans.
After a validation exercise marked by attempts at imposing views on Kenyans through highly choreographed public rallies, which met the resistance of Wananchi. A second report was launched at the Bomas of Kenya on 26th October, 2020 (Bomas II). Bomas II proposed key constitutional, policy, legislative and administrative changes.
Reflections on Bomas II recommendations
As citizens representing numerous and diverse sectors, interest groups and other stakeholders present at the launch, we noted and welcomed a number of progressive ideas in the recommendations including proposals to:
Protect data privacy
Achieve gender parity in the Senate,
Privileging of economic and social rights,
The establishment of the office of the Leader of Opposition,
The establishment of the Youth Commission,
The increase in revenue allocation to counties
The entrenching in the constitution of the Constituency Development Fund (CDF) and the Ward Development Fund.
The inclusion of the primary aspects of the hustler economy under “ economy and shared prosperity”.
Kenyans also appreciated suggestions to enhance youth participation and create an enabling environment for them to find employment, do business, engage in innovation, including proposals on moratoriums on student loans.
However, loyal and patriotic Kenyans immediately raised a number of critical issues in good faith, with the view that everyone wins in this process.
The issues coalesced around the following:
The independence of the Judiciary and the general area of access to justice. Many Kenyans support judicial accountability and transparency but saw the proposal to create a judicial ombudsman as an unacceptable derogation of judicial independence that goes against the imperative to protect, uphold and defend the independence of the Judiciary.
The independence of IEBC and the management of elections. The recommendation that political parties participate in the appointment of commissioners was seen as building bias into the electoral system.
The independence and professionalism of the Police Service. The proposal in the BBI for the formation of a Police Council under a Cabinet minister, was seen in many quarters as impacting the integrity and professionalism and, therefore a direct assault on the Police service.
The mandate of Senate in terms of protecting devolution and its general oversight role. The BBI proposals denied the Senate the constitutional mandate as a forum for the discussion and arbitration of matters relating to division of revenue.
The place of women in our legislature and the issue of affirmative action principle in our constitutional infrastructure. The proposals abolished the women representative position at the National Assembly, essentially excluding women from the centre of critical decision-making, relegating the participation of women to nominal and tokenistic roles.
Concerns by diverse Stakeholders
9 . After Bomas II, more stakeholders continued to reach out with further input to enrich and improve the proposals. Some of the stakeholders who engaged intensively with the proposals include the pastoralist communities who articulated their views through their parliamentary caucus as well the Frontier Counties Development Council, Protestant ministries, The Catholic Church, the Muslim leadership, other citizen groups, and civil society organisations.
The stakeholders defended the independence of institutions and rejected proposals aimed at interfering with the independence of parliament, the judiciary, the police and the IEBC. Thus, proposals in the BBI to introduce the judiciary ombudsman, Police Council as well as the repeal of the Director of Public Prosecution’s tenure are specifically opposed, as are the proposals aimed at changing the mode of appointment of electoral commissioners.
The stakeholders also opposed the amendments on various grounds, including that the recommendation to create an imperial presidency, weakened checks and balances, downgrading the level of representation in the National Assembly of low population constituencies, enabled the executive capture of the Legislature and Judiciary.
Many stakeholders, citing the Covid pandemic, the difficult economic circumstances, the high national debt and gaps in public financial management, took issue with the prioritization of BBI and preparations for a referendum campaign in the current environment.
They pleaded that attention be directed to runaway corruption, heightened political intolerance, the securitization of public affairs, as well as impunity and the flagrant disobedience of court orders by the Executive.
In conclusion, the stakeholders concluded that BBI proposals do not meet the stated and publicly declared objectives of the Handshake and BBI of uniting Kenyans and ensuring that general elections will not be violent, and are, in fact a major claw back on the gains made by the 2010 Constitution.
Additionally, the stakeholders questioned whether there are resources to
support a referendum a year before elections and advocated a multiple-choice referendum to prevent the rejection of good ideas, and urged the escalation of efforts at building consensus, rather than taking partisan positions.
Post-Bomas Changes; Progress Towards Consensus
The Constitution of Kenya (Amendment) Bill, 2020 was gazetted on the 25th November 2020. The Bill reflects significant changes to the Bomas 2 document, adopting a number of the concerns raised by stakeholders including the following.
The proposals on political party representation in IEBC through the appointment of commissioners has been dropped. The unfair implication of having some players choosing the game’s umpire has been noted and accepted.
Similarly, the problematic idea of a Police Council headed by a Cabinet minister has been abandoned. The independence of the police service has, therefore, been retained.
The proposed 70 nominated seats have now been converted to representative electoral seats. A nominated seat would only have benefited the individual nominee, and encouraged political interference and manipulation of Parliament. On the other hand, elective seats benefit constituencies through representation and the allocation of meaningful development resources.
Moreover, historically marginalized communities have secured protection by the extension of the validity of the Equalization Fund period to 30 years.
The proposals that would have undermined the role of Senate have been abandoned. The alternative enhancement is a development in a positive direction. The role of Senate is vital to our governance.
The Constituency Development Fund, CDF, a critical tool for community level socio-economic development, is now proposed to be anchored in the constitution.
The Bill has a proposal that would anchor matters touching on the economy and shared prosperity in the Constitution. Legislation to actualize and operationalize these proposals will be enacted within a year to give effect to what would otherwise have been abstract values.
Article 11A mainstreams the hustler economy as well as the mandatory requirement for the President to make a report on the status of the achievement of economic and social rights. These proposal will safeguard the protection and the actualization of critical interests of the of agricultural and Hustler Sectors.
As a consequence, within 1 year, legislation on Guaranteed Minimum Return for all farmers ( maize, coffee, wheat, tea, Korosho, ndengu, fish, livestock, potatoes, cabbages ) which is a vital anchor for productivity in agriculture and food production will be enacted as will be legislation for the establishment Livestock Marketing Authority.
Similarly, legislation on a fund to support the hustlers economy – micro, small, medium enterprises fund and the entire wheelbarrownomics economic ecosystem, will be enacted.
18. From the foregoing, it is therefore clear that significant progress was made between Bomas II and KICC, and that the amendment Bill adopted major inputs of stakeholders in fairly explicit terms. In essence, the gazetted document is a positively progressive development compared with the Bomas one.
19. Our position post Bomas- that there was no way this process would proceed without bringing on board important sectors and constituencies that could have been overlocked – has been vindicated. It is emphatically clear that the issues, concerns and interests of ordinary people have found their way to the main table and are part of the national conversation. This is as it ought to be, and this must become the basis of all meaningful national deliberation going forward.
Outstanding Issues and Opportunity to Strike Consensus
However, a number of issues raised by various stakeholders, including ourselves, remain outstanding and are yet to be conclusively and exhaustively addressed.
The idea of accountability for all government organs is a strongly held tenet of democracy. The proposal on a judicial ombudsman speaks to the issue of accountability of judicial officers. We however strongly believe that judicial independence matters and must never be undermined, even if only in perception.
We submit, therefore, that there still remains room for the ombudsman’s appointment mechanism to be reviewed and agreed upon and for the appointment of the ombudsman by the Judicial Service Commission or the Chief Justice would be more consistent with the principle of judicial independence than appointment by the Executive, which runs contrary to the principle of separation of powers.
At Bomas 2, we opposed the establishment of 70 multi-member constituencies, seeking to move away from a culture of nominations and virtual constituencies. We are happy that 70 constituencies were have been proposed to enhance representation. While we agree with the principle of equality and equity in representation, IEBC should vary the proposed constituencies by upto 20% so as to capture and accommodate the most expansive, arid and largely marginalized areas including Garissa,Nyeri, Wajir, Nyandarua, Kitui, Kisii and Migori.
The proposals on affirmative action and equality in representation are important principles and there is a progressive attempt to address them. However, the outcome of the current proposals is that combined with nominations required to meet the to 2/3 rule in accordance with Article 81, the size of parliament will now increase from 416 seats to as high 640.
An increase of more than 200 MPs is untenable, and a hugely unsustainable burden on the taxpayer. We propose that in addition to the 47 women elected to the Senate, we bring back the 47 women representatives elected to National Assembly. We note that will allow for the elected women in the National Assembly to be nominated to the Cabinet.
In furtherance of the above, we have 3 proposals to make:
First, even with the post-Bomas gains and the improvements to the document, these outstanding issues require attention and we should build the necessary consensus to further enrich the constitutional Bill, especially because we have to acknowledge certain realities including the fact that the people of Kenya have voiced strong concern about the prudence of a bloated government.
Second and imperatively, the BBI recommendations do not propose a constitutional replacement through repeal and promulgation but rather the amendment of numerous discrete provisions. This calls into question the appropriateness of framing the referendum as a single-question plebiscite when multiple issues must be considered. A multiple-choice referendum is clearly more appropriate.
Third, we must consider the circumstances in which we find ourselves. We are in the midst of a deadly pandemic that has ravaged our country, killing close to 1500 Kenyans including frontline health workers, infecting nearly 100,000 Kenyans, and affecting millions of others, straining public health facilities, and instigating an economic meltdown. The deepening financial quagmire has led to the destruction of livelihoods, enterprises, hustles and consequential loss of jobs and shrinkage of revenues.
Additionally we are haunted by the reality that we are yet to create confidence in our education system’s ability to make schools safe enough for our children to resume school because the myriad challenges facing the entire school system remain largely unaddressed.
Given the foregoing it is legitimate to question the wisdom of expending 14 Billion shillings a year before an election that will cost another 42 Billion (2017 figures), when the referendum could be conducted as a seventh ballot in the General Election at virtually no extra cost. We believe it is prudent to hold the referendum along with the General Election in 2022.
Encouraged by this demonstration of a very real prospect of finally converging towards respectful accord and peaceful consensus on the matter of BBI-related reform, the prospect of reggae becoming Jerusalema,
Emphasising our long-held and firmly maintained position that we must avoid contentious, win-lose, divisive or acrimonious referendum that holds the potential to breed hate, ethnic polarization and conflict,
Cognizant that we are in the midst of a deadly pandemic that has ravaged our country,
Aware of a struggling economy which is on the verge of full-scale collapse,
Recognising that we have not built the capacity to handle the huge risk that comes with reopening of schools as well as the tremendous financial outlay required to enhance school facilities in this Covid phase
And after broad consultation, lengthy engagement and robust deliberation with a wide spectrum of various stakeholders on the matter of the Constitutional Amendment Bill, 2020:
We appreciate the good proposals in the amendment Bill and also acknowledge the positive efforts made in accommodating various concerns relating to outstanding issues as indicative of progress towards consensus.
With the progress we are making in building consensus on important constitutional, institutional and administrative changes, we recommend that resources earmarked for BBI related activities be redirected to Covid mitigation measures and supporting the recovery of micro and small enterprises.
Based on the above, our position is as follows
We care far too much for our country and fellow Kenyans to reduce this important exercise to a question of YES and NO. Not just because it is premature and simplistic, but because there is real progress towards consensus that we need to resolve outstanding issues inclusively, exhaustively and conclusively.
Democracy provides us with infinite opportunity for deliberative consensus-building. It is how great societies are built. It is how all Kenyans, in their great diversity, come together to make a beautiful future for themselves and for future generations.
And, it is worth stating time without number that consensus is the right thing to do, and the right way to go. We must therefore never tire or relent or give up doing the right thing. Consensus entails both speaking and listening. We must listen to one other.
The time is always right for consensus-building. Therefore, I submit once more that it is never too late to do the right thing. Every time is consensus time.
We have been asked what we mean by consensus. The consensus we seek and this country needs is in relation to content, process and timing.
In short, we must agree on the what, how and when. The consensus is to align the process with its founding objectives and bring it closer to the dreams and aspirations of Kenyans.
By content we mean we resolve all outstanding issues through consensus, including issues on Judicial independence, bloated Government, equity and equality in representation and affirmative action among others.
By process, we mean providing a multiple-choice plebiscite to prevent the rejection of good ideas.
By timing we mean we should hold the referendum in 2022 together with the General Election in order to save costs and re-direct available resources to mitigating the effects of Covid-19.
“ Let all with one accord In common bond united Build this our nation together”