It has been fascinating to see the reactions from even some Kenyans I thought were following this BBI launch more closely and the ignorance or lack of correct information they have demonstrated in their various comments.
One common error I am noticing even from people I would think know better–at least in social media is the belief and people acting as if the BBI report is a done deal only waiting to be voted up in parliament to become law.
Reality is, we’re far from BBI becoming law.
First, there are several proposals in the report that need not even parliament action to implement as the president can effect those changes or new policies utilizing current executive powers.
Second, there are several provisions or proposals in the report that would require parliamentary action and the president’s assent to become law under the normal law making process and those will be handled and proceed accordingly.
However, when it comes to restructuring the government as proposed in the BBI report, that requires a referendum, not just a vote in parliament.
Article 255 of the Constitution provides as follows:
(1) A proposed amendment to this Constitution shall be enacted in accordance with Article 256 or 257, and approved in accordance with clause (2) by a referendum, if the amendment relates to any of the following matters–
(a) the supremacy of this Constitution; (b) the territory of Kenya; (c) the sovereignty of the people; (d) the national values and principles of governance referred to in Article 10 (2) (a) to (d); (e) the Bill of Rights; (f) the term of office of the President; (g) the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies; (h) the functions of Parliament; (i) the objects, principles and structure of devolved government; or (j) the provisions of this Chapter.
Changing the Constitution via the parliament option requires a referendum if the change “relates to” any of the topics listed in Article 255(1) (see above). Although many of these topics are not relevant in this context, meaning, pursuing BBI implementation via a referendum, one or two can no doubt be argued to be relevant.
For example, an argument can be made that changing the democratic system and how the head of government is elected “relates to” democracy — a national value. A change “related to” a national value needs a referendum therefore.
Although I can see a legal case or scenario where a referendum can be avoided to still put into effect what BBI proposes, that would require some serious juggling of the pieces and things lining up so perfectly it’s safe to say the better route under current circumstances, is to put into effect those changes via a referendum.
To get there, the constitution lays out what needs to happen next, which can be a people initiated referendum, or one initiated by parliament. I can’t say for sure as things stand today which direction Uhuru and Raila will go with this; if the objections raised thus far by some in opposition camp can be accommodated and have a referendum bill passed by 2/3 of both houses, then IEBC will conduct a referendum within 90 days of passage for a yes or no public vote on the bill.
If there are not enough votes in Parliament to initiate the bill as modified to make BBI better, then the only other route will be a popular initiative signed by at least one million registered voters and the rest will go as per the rules established in the constitution, much as we had the 2010 passage and promulgation of the new constitution.
So, those celebrating that BBI is in as is you better hold off your horses you may be in for a big surprise when it’s all said and done, BBI won’t be what you think or assume it is.
Conversely, those not too happy with BBI as proposed, especially on the question of government structure, you, too, hold your horses for if there are changes to be made in the proposed structure, I doubt they’ll go all the way to a pure parliamentary system Raila and others said they prefer.
In fact, I can state categorically without any fear of contradiction a pure parliamentary system will NOT be proposed, let alone pass a referendum vote, even if proposed.
Rather, we’ll have more refining and redefining of the hybrid parliamentary/presidential system currently proposed in the BBI report to make the presidency not as dominant or as imperialistic as proposed while giving the Prime Minister office some autonomy and independence, answerable only to the people through their representatives in parliament.
The president can perform perfunctory duties relative to the appointment of the PM but that should be about it.
All that being said, and unfortunately so, how we move forward from here all depends on President Uhuru Kenyatta’s goodwill and those closest to him, working or at least making sure the handshake objectives are intact and remain firm throughout the process. That happens, we have a new Kenya for sure.
It doesn’t, well the same old ugliness, hatred and division shall continue.
As a progressive, I can only hope and pray for the former and am fairly optimistic that’s what we have in the offing going by what has transpired thus far.
God help us!