Be Wary of Rushed Analyses of the Court of Appeals Ruling Against BBI.


By Washington M. Osiro

It is interesting to see Kenya’s talking heads and spinmeisters react to the just-announced ruling on the Building Bridges Initiative (BBI) by their country’s Court of Appeal (CoA). In a majority opinion, the judges upheld the High Court’s ruling – that declared the initiative “Unconstitutional.” The vote wasn’t even close. Of the sixteen opinions,

the Appeals Court rendered, six of them were “Unanimous.” Only three opinions garnered more than one dissenter.

While I appreciate the headline-grabbing slap-down by CoA President Daniel Musinga and his team, there was nothing unusual or earth-shattering about the decision by the same Judiciary that once declared the results of a presidential election “null and void” despite threats – that some unknown and non-specific issue would be “revisited”.

So, facing scrutiny and oversight by a demonstrably independent Judiciary, what inspired or gave the two principals – President Uhuru Kenyatta and former Premier Raila Odinga – the cajones to embark on the patently arrogant and blatant power-grab? What convinced the two scions of the country’s premier political families to try and manipulate the Constitution – arguably to railroad the 2022 presidential ambition of their main opponent, current Deputy President, and frontrunner William Ruto?

I don’t know but whatever it was also persuaded them to arrogate unto themselves and tangentially, individuals of their choosing or liking, the inside track in said 2022 race.

Somehow Uhuru Kenyatta and Raila Odinga believed that they were on terra firma when they set out to change the Constitution through a referendum that when stripped of all its lofty-sounding but ultimately meaningless words, addressed and replicated almost all the areas of concerns already addressed by the 2010 Constitution or bureaucracies/institutions mandated by said Constitution to act thus.

The Courts were particularly miffed at the duo’s attempt to gerrymander the number of constituencies within the country and increase presidential power – by fiat. The Kenyatta and Odinga-led initiative sought to increase the number of constituencies to 360 – from 290. This would have been a 25% increase – mostly benefitting the former’s political and ethnic base and somehow, the former prime minister was on board with this gambit.

The initiative also sought to create a series of positions appointed, directly or indirectly, by the president – hence answerable to him. This attempt at an imperial presidency was obvious despite the duo’s lipstick-on-a-pig effort – to make the over-reach appear organic, independent, and subject to legislative oversight, i.e., “the mischief of disguising unpopular amendments among the popular amendments of the constitution” according to African Growth Initiative’s Senior Fellow John Mukum Mbaku. BBI created the Office of a Prime Minister (OPM) while using many words to rationalize what ultimately was an illegal extension of presidential power.

The framers of the initiative sought to repackage and present as “critical in strengthening inclusivity and accountability,” the same office that was ridiculed during the Coalition Government of 2008 by none other than Mr. Kenyatta and allies of then-President Kibaki. And what makes the just-quashed attempt to revive the premiership audacious and baffling, is that it was then-Prime Minister Odinga who was derided by then Deputy Prime Minister Uhuru Kenyatta and supporters of Mwai Kibaki.  Mr. Kenyatta and his colleagues disparaged the OPM as “nusu mkate” even though the said office was an attempt at national unity and oversight by the late Kofi Annan and others tasked with pulling Kenya back from the precipice of civil war. The issue then (2007/2008) as it is now, decades later, was, you guessed it, an executive that had zero compunction about grabbing power by not only rigging the elections but bestowing upon itself the authority to self-swear into power in secrecy and in darkness. In short, an executive that acted with the same impunity the Court of Appeals just swatted away.

It is this specter of history repeating itself, almost to the letter, that has tempered my exuberance towards the August 20th ruling forcefully and succinctly articulated by Justice Musinga. It is also the reality that there, but by the grace of a seemingly independent and apolitical Judiciary go the country – to the whims of an entitled executive and a tightly-knit coterie of Yes men and women – that have mitigated most of my enthusiasm.

Might the courts, for all their arcane and unemotional legalese, have grown tired of the hypocrisy and double-speak of the two men – and their supporters?

Was this series of rulings the Judiciary’s desperate efforts to save Kenyans from themselves? After all, one million of them supposedly “voted” in favor of moving the referendum forward. And for some strange reason, BBI was popular in Raila’s demonstrable “Guardian of the Constitution” stronghold – despite its tenuous constitutional basis.

Forgive me if I am an “Alert Anyango,” “Nervous Nasongo,” “Skeptical Shiru,” “Mistrustful Musau,” or “Suspicious Solei,” but we’ve all seen this movie before. Kenyans have seen a plurality of their Judiciary rescue them from politicians hellbent on staying in power only to have these same politicians weasel their way back into the political fold.

Maybe it is this last reality that also gave President Kenyatta and former Prime Minister Odinga the confidence that they held just enough sway over a tipping point of judges to push another extrajudicial usurpation of power by an entitled few across the finish line.

It has happened before – more than once.