FOR all the political talk,media coverage and statements by third parties, consequential questions continue to hang over the Building Bridges Initiative, BBI.

Though the proponents of the BBI insist it was inevitable to shepherd the country through constitutional amendments that were yet to be clearly defined, the rationale for changes remains hazy.

The closest the President Uhuru Kenyatta has come to shedding light on the rationale behind BBI-Constitutional amendments agenda was when he spoke in Kisumu when he launched  the Universal Health Care pilot programme in December last year.

In his off the cuff remarks at the event attended by his deputy,Mr William Ruto, and former Prime Minister, MrRaila Odinga, President Kenyatta hinted he backed constitutional changes to , he said, correct some difficulties associated with what he called  “winner take all” political system in Kenya.

“This politics where we are competing for others to join the government as we lock others out must come to an end….we want competition that will ensure that every community in Kenya feels as part of government”
As a justification for a proposal as consequential as constitutional changes, this statement has raised two fundamental questions:

President Uhuru Kenyatta was the leader of the majority Jubilee leaning voting blocs in 2013 and 2017 general elections.
 These blocs have now been split down the middle with those opposed to the constitutional changes agenda faulting it it as unnecessary apeasement to create executive positions for election losers.

This , they argue, is akin to surrendering after victory, or caving in to blackmail , intimidation and threats.

Coalition of minorities

In their view, the President should not be seen to surrender to intimidation to appease a coalition of minorities that is the opposition Nasa, led by Mr Raila Odinga

They view the BBI agenda as setting a bad precedent to subvert constitutionally protected democratic principles to settle transient political disputes, than standing up for constitutionalism.

Among arguments against the BBI agenda is there should never be lame ducks and sore losers in a democracy.

There are back benches in parliament for the official opposition regardless of the names and labels they go by.

They will have their say whether as political parties, tribes, communities of interest, socio-economic classes or ideological leanings.

The BBI trend of appeasing electoral losers is viewed as classical political chicanery for a party to participate in elections, only to rebrand itself in ethnic colours to blackmail rivals after losing at the ballot.
Among questions being raised include whether politicians who made their choices with eyes wide open should be rewarded for making wrong electoral choices at the tax payers expense.

Hypothetical questions abound to the effect if so called “winner take all” concerns would have arisen ahead of Raila Odinga succeesion in 2022, had the Cord or Nasa Coalitions won the 2013 and 2017?

Kenya is a constitutional multi-party democracy whose consequences are clear.

So the argument of questioning ‘winner take all’ sounds mischievous, being the essence of majoritarian democratic practice.
Elaborate democratic principles and traditions exist to ensure that the winner is sworn in, assumes power and keeps it in the specified manner and time span.

Political voodoo

The ‘winner take all’ being packaged as a problem needing some ‘correction’, through proposed constitutional amendments is political voodoo , not statecraft, but barefoot deception.

The suggestion that an election winner should share power with someone else or a group of ‘others’ so as to ensure ‘inclusivity’, does not fit any fashion, shape, colour or form of democratic principles.

It effectively overturns the high threshold legal legitimacy requirement imposed by the constitution for a winning Presidential candidate.

It tends to invalidate democratic competition in the first place,especially for Kenya, where the first- past-the-goal-post principle is constitutionally augmented by a steep threshold requirement of 50+1 per cent of all votes cast.

The winning candidate must also secure not less that 25 per cent of all votes cast in 24 counties out of the 47, a proviso specifically inserted in the the supreme law to ensure as broad inclusivity as possible among political parties.

It raises fundamental questions about why a winning candidate shoud spend time, enegry and resources to secure the very high winning threshold of 50+1 per cent of all votes cast only to be compelled to share the spoils with the loser.

It undermines the enduring essense of democracy as the only system invented by man that upholds and guarantees the highest of human values-Freedom of the individual.

Socialism by another name

Like competitive capitalism , voluntary co-operation and free exchange, democracy places a premium on freedom of the individual to choose and associate freely.

Wanjiku must not be, forced, manipulated for ulterior motives ,blackmailed, bulldozed, brainwashed, but respected as a person with rights and dignity in regard of which she/he can only be pursuaded, not coarced.

Chapter 4 of the constitution guarantees the rights of the individual.

The “winner take all” rationale for amendments introduces notions of socialism by another name, having as it does, “inclusivity” as its objective, but not of individuals, but some nebulaous group right to be in government or entitlemens of some ethnic groups as represented by individuals championing the BBI agenda.

There is nothing those championing for “inclusivity” have been denied,or stopped from doing.

The essence of executive power is authority to control and allocate resources among all stakeholders.

This power is shared with parliament, where the Executive proposes, and Parliament scrutinizes and approves appropriation.

With the constitutional devolution under implementation in Kenya today, this power is already legislated for under equitable revenue sharing policies between the national and the 47 county governments. 

Each has clear mandates and functions.

Since 2013-2014 when the devolution project kicked off, some Ksh1.5 trillion of taxpayers money had been disbursed by 2018 to the 47 regions, complete with decision making and expenditure powers.

Effectively, the pre-2010 ‘winner take all’ ghosts of marginalisation,exclusion,skewed development and so on have been exorcised by the devolution project.

Which should lead to the question of what is the nature of the newly invented ‘winner take all’, problem if it persisted?

How did the drafters of the 2010 constitution miss it? And how does if manifest itself?

Until these questions are answered, one cannot proceed to prescribe solutions via BBI – backed amendments to a problem not yet defined.
The second consequential question that proponents of the BBI-Amendments agenda are yet to answer revolves around political mandate, the timing and rationality of apparent stampede towards constitutional amendments.

Manifesto

Skeptics are concerned with the casual manner in which the constitutional debate has been introduced as an “inevitable” national political discourse by Kenyatta and Odinga acolytes.

This despite the fact that neither of the major political parties competing for power in 2017 general elections- The Jubilee Party and the Nasa Coalition – promised constitutional amendments as a major campaign agenda in their manifestos

This is important because it means President Uhuru Kenyatta and Raila Odinga did not promise Kenyans constitutional amendments , and neither did Kenyans demand for them.

This implies they have no popular mandate to seek or back constitutional changes, and that the Kenyan voter was not expecting constitutional changes from either of them.

It then follows that the agenda for changing the supreme law of the land is an imposition, a second thought from someone or a group of people for undisclosed reasons but manufactured post 2017 General Elections.

Which leads to another question about who owns or benefits from the agenda of the envisaged changes, to what end and implications in democratic and constitutional terms?
It is expected the anticipated BBI report that should be published any time before the end of October will provide answers to some of these questions.

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Waiganjo: Implementation the priority, not changes

City lawyer and ex-commissioner in the Constitutional Implementation Commission (2010-2015), Mr Kamotho Waiganjo, says the urgent priority for Kenya is not constitutional amendments but implementation.

“Since 2014, the constitutional implementation was shelved.The government elevated own agenda and priorities, relegating implementation to the back banner. For instance, the war on corruption now causing political storms needed not be so had chapter six (Integrity in public office) been implemented as expected” Kamotho said.

According to Mr Waiganjo, the devolution project and creation of 47 governors’ offices settled elite competition at the regional/county levels, but the national elite power games remained unsettled and unresolved.

“Kenyans are now being invited to decide what costs more, between braving instability wrought on all of us by elite power games every election cycle, or paying for extra executive positions to settle the power struggle disputes?”

Mr Waiganjo, who describes himself as a pragmatist, said the struggle for power by national elite was real and would not go away until it is settled one way or another, including through constitutional emendments.

“Sadly, other key insitutions of society like the judiciary and civil society have made grave strategic errors that undermined their capabilities to arbitrate and mediate the power struggle crisis the country is going through among the political elite.The constitution and Wanjiku are the ultimate losers” he said.