Raila push for unity and the BBI loss

Former Prime Minister Raila Odinga’s quest for a united Kenya revolved around battles in court, especially the Building Bridges Initiative (BBI).

Raila’s then mantra was that nobody can stop reggae, and when Covid-19 muted reggae, he said the song had just gone on a pause and it would be back.

The opposition leader sauntered across the country drumming a new roar for  2010 Constitution amendments sanctioned by his handshake partner, Kenyatta.

But the Judiciary plugged off the music sweetened by promises for a united and more inclusive Kenya.

In the High Court, the verdict was unanimous. Justices Joel Ngugi, Jairus Ngaah, Teresiah Matheka, George Odunga and Chacha Mwita held that Building Bridges Initiative was unconstitutional and that President Uhuru had breached chapter six of the constitution.

Nevertheless, the court was split on whether he was justified or had powers to appoint the BBI task force.

On one hand, Justice John Mativo said that the President was right and on the other, the five judge bench found he breached Chapter Six of the Constitution.

Six issues were raised by economist Dr. David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei at the High Court.

However, it was not all doom for the President and the BBI taskforce as Justice Jairus Ngaah threw out a separate case filed by Kenyans living in diaspora in December last year

Kenyans in diaspora representative James Gitau lamented that they had not been incorporated in the BBI process.

In a case which had 27 parties, High Court declined to order the juggernaut back on the rails.

After a near chaotic 2017 Presidential election, a historic handshake on March 9,2018 between the then nemesis Uhuru and Raila birthed what was referred as a final bullet to slay perennial ethnic wars that the spur up during elections.

The team gathered views from Kenyans of all walks of life, documented them in a recommendation tainted as a cure for all the country's social woes - negative ethnicity, political antagonism, corruption, among others.  

However, the Court of Appeal dashed their hoped by affirming the High Court’s verdict. Unlike High Court, the second highest court in the land was split on the eight issues which were raised.

The judges were unanimous on five issues which included that High Court condemned President Uhuru without hearing him.

However, they could not agree on nine issues which included whether BBI was constitutional or not. Justice Fatuma Sichale found herself on the minority side.

Court of Appeal President Daniel Musinga and Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, and Francis Tuiyott agreed on the majority of issues raised by the Ndii’s team and affirmed the High Court’s judgment.

Meanwhile, the Supreme Court identified seven issues that finally settled the case.

Although their lives, contributions to the history of Israel and Egypt happened thousands of  years ago, and are dead, waiting for judgment day, they featured metaphorically in Kenya’s own historic battle-royale and was chronicled in her own moment of reckoning

 As narrated in 1 and 2 Kings Jezebel was King Ahab’s wife and a pagan who worshipped goddesses Anat and Astarte and Baal and who was a god of fertility.

In a rich history taught in churches pulpits to Christian, her story is a rich stew spiced up with sex, cruelty, and murder.

In a kingdom where Yahweh, the Hebrew God is the only divine being, the queen is a poster girl of evil.

Her story tragically ends after being thrown out of a window, died instantly and her unattended devoured by dogs as had been predicted by prophet Elijah.

At this time, she had titivated herself, and it is argued she was doing it to woo Jehu for some fornicate time.

 In her story, dogs were powerful symbols. In Canaanite religion, and are linked to goddesses Anat and Astarte and the god Baal. The irony is that the same deities she worshipped, all to the victory of Israel devoured her.

In addition, she had a second side of life, as narrated by senior lawyer James Orengo in his submissions on behalf of Raila team- she was bloodstained yet strong-willed, politically smart, and daring woman.

Orengo narrated about Jezebel to illustrate that although anti- BBI backers. He argued it the opposition reeked more confusion for the country. To him, it was evil. 

“My Lord I will invite you in the Bible there is a lady called Jezebel if you read her story she was a vile satanic woman but if you read her other accounts she has very good accounts of a strong lady,” Orengo argued.

Meanwhile, Pharaohs were kings of Egypt. They first appear in the Bible in the 2nd Kings. They considered themselves living gods, who ruled with absolute power.

To reinforce their images, they represented themselves by writing on scrolls and sculptured themselves on temples and tombs.

They are documented as warriors, killing lions and conquering nations but rigid to change, oppressors, slave masters, aloof to peoples’ needs, a law unto themselves, and only let go when God’s judgment fell on them.

 Nelson Havi, who is representing the now President William Ruto advisor, Seii, Jane Ngondi, Gikonyo, and Angelei, in the case, equated Kenyatta to a Pharaoh.

According to him, inspecting guards of honor, causing traffic snarl-ups as his chase cars ring out his presence to clear the way is just but a demonstration of his image of men and women who ruled Egypt from 3000 B.C.

To illustrate that a president is a different being, Havi invited the court to look at the life around the President.

According to him, he can never be equal to a peasant and should be barred from the constitution-making process.

"The president is not a mere mortal he is a superior being. The president cannot be a party to a popular initiative. Imagine the president demonstrating and picketing,” he argued.

In a battle of wits, lawyers on each side used them as metaphors on what they thought of the other side.

Raila’s and Uhuru’s quest would have historically allowed first-ever primary amendments to the 2010 constitution but the court spelt doom, the 23rd time.

 In a battle of wits, imagery, and spiced with legal arguments both the proponents of BBI and those opposed told their respective stories.

 Although a lawyer will tell you the constitution or law is clear, just as fog in broad daylight, they tried to submit their point and left it for judges to clear the way forward for the country.

 The issues boil down to whether the 2010 Kenya constitution can be amended and if so, which chapters and how to do it.

At the heart of the epic court, the battle is Article 257 of the Constitution and Chapters One, Chapter Two, Chapter Four, Chapter Nine, and Chapter Ten.

Article 257 deals with the process through which Kenya will amend the constitution. It provides that an amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.

It also spells out that the popular initiative can be either in form of a general suggestion or a formulated draft bill.

“If a popular initiative is in the form of a general suggestion, the promoters of that popular initiative shall formulate it into a draft Bill. The promoters of a popular initiative shall deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries Commission, which shall verify that the initiative is supported by at least one million registered voters,” it reads in part.

If IEBC is satisfied that the initiative meets the requirements, the Commission ought to submit the draft bill to each of the 47 county assemblies for consideration within three months after the date it is submitted by the commission.

It continues: “If a county assembly approves the draft bill within three months after the date it was submitted by the Commission, the speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it.”

Parliament ought to support the bill by the majority of the members of each House and if passed, it is handed to the President for assent.

If either house fails to pass the bill or does not agree on a specific matter in the proposed amendment, the same is to be settled by the people in a referendum.

Meanwhile, Chapter one deals with the sovereignty of the people and the supremacy of the Constitution while Chapter two declares Kenya as a republic, defines its territory, national values, language, culture, and devolution.

At the same time, Chapter four accords to Kenyan rights, Chapter nine is about the Executive, and 10 defines the Judiciary.

The crux of the case was that subjecting changes to the four clauses will result in a complete change of the entire law.

In court, Raila and Uhuru had their own interpretation on how Article 257 should be applied. According to them, the lower courts put an amendment benchmark that is impossible to achieve.

First, they argued, anyone, including the president, can push for an amendment drive. At the same time, another animal in the room is public participation.

On this, they say the promoters only need to seek the authority of 1 million voters and not do among others, civic education.

They also differed about who is an initiator and a promoter and if a president can promote a popular initiative.

On one hand, Uhuru, Raila , then Attorney General Kihara Kariuki, and BBI team argued that the handshake partners were not the promoters of the process, therefore, the president’s involvement was above board.

They hold, although he is a state official, he has a political right and is entitled to participate in an amendment push.  

“Can the president initiate a popular initiative? In this case, we say he did not. The promoters of the BBI initiative were the two gentlemen (Junet Mohamed and Dennis Waweru) we have mentioned and anyone is allowed to support. Anyone in this country, including the president and any person in this court, can support a popular initiative,” senior lawyer Otiende Amollo, who is representing Raila in the case argued.

The Court of Appeal heard that Article 257 talks of a promoter and not an initiator.

On the other hand, the respondents argued that the President’s DNA is in the BBI; therefore, it is an illegal entity.

Ndii argued that we already have a good law, which has chapters that cannot be amended and dealing with all the problems cited in the BBI document. The only problem, they say, is the failure to comply and implement it.

It was alleged that the intention of inscribing BBI recommendations into the constitution should be through a Parliamentary route or driven by a private citizen.

According to the respondents, Uhuru should have handed over his office to engage in such an exercise.

Ndii’s team claimed the country is now steered into unchartered waters, driven by few political bigwigs instead of a wave of change by Kenyans, which is similar to the quest to do away with the 1969 Constitution.

The 1969 law saw two fundamental changes - when then-President Jommo Kenyatta had Parliament pass an Act to allow him to pardon election offenders.

This was to save Paul Ngei who had in 1974 had been black-listed by a court to vie for in a by-election.

 The court found Ngei guilty of an electoral offense.

The second major change in the old constitution was the introduction of Section 2A in 1982. The amendment changed Kenya from a de facto (by fact) one-party state into some de-jure (by law) one-party system.

 The 1982 amendment was the turning point of Kenyan politics history after sparking the quest for multiparty democracy and which is outlined in Chapter 2(2) of the 2010 Constitution

In the case now before the court, Ndii’s team argues that if the 2010 law is changed, Kenya’s political future is uncertain.

Kenya found herself in the history of countries knotted with an eternal structure doctrine; amendable and non-amendable clauses clamour. The first experiment with an unamendable constitutional provision was in the 1787 American Constitution.

Meanwhile, eternity clauses were conceived in Germany, born in India and closer home, rejected in Uganda and it now wants to spread its roots in Kenya.

Uhuru and Raila however, argued that Kenya's constitution-making history. 

The quest for constitution change would, however give President William Ruto a pedestal to challenge his former boss and party leader whom he labelled a dynasty in the ballot in which he won.