Two and half years after the Uhuru Kenyatta and Raila Odinga handshake, the Building Bridges Initiative Taskforce has finally revealed their joint vision for the future of Kenya. Within hours of the report’s release, most netizens have twisted into either #RejectBBI or #BBIOrNothing camps. Given its’ length and breadth, both camps and all of us in between, need to study it carefully. This is, therefore, a preliminary reflection.
The 204-page Implementation of the Building Bridges to a United Kenya Taskforce Report seeks to amend fourteen chapters of the constitution through a Constitution of Kenya Amendment Bill. It also proposes fourteen new bills. The wide range of constitutional and legislative amendments do not really allow for us to intelligently dismiss or embrace all the report recommendations. It is best to treat the report as a menu of options and study the risks, trade-offs and opportunities, it creates. As can be expected from this column, my preliminary reflection will apply a public interest and human rights lens.
The reports’ diagnosis of what paralyses Kenya today is difficult to argue with. Political disparities, economic inequalities and social exclusion coupled with the deadly venom of impunity and corruption fuels hopelessness for millions. While the handshake was the symbol of a political ceasefire and realignment, mass anger and violence in 2017 had burst from deeper tributaries than the Jubilee and NASA dispute over power
Human rights defenders may be relieved to see the only amendment to the Bill of Rights is to strengthen the protection of citizens’ personal data. Given public concerns with Government mass surveillance initiatives, increasing digitisation and use of our information without our consent, this is an important recommendation.
Health-workers may find the proposal for a Health Service Commission disappointing. While a long-term demand by the Kenya Medical Practitioners, Pharmacists and Dentists Union, the BBI report proposes an advisory commission with no clear powers. Predictably, the push for a constitutional commission with the financial and functional independence will continue.
Despite the historic leadership civil society organisations have demonstrated in drafting and defending the current constitution, the report merely assigns them the role of civic education alongside elders and chiefs. The report also overlooks their six-year-old demand for the operationalization of the Public Benefits Organisations Act (2013). Relying on the NGO Coordination Act and the latest fragment of an NGO Council is a non-starter. Despite professional leadership at the NGO Coordination Board, the NGO Coordination Act - a one-party state law - is hopelessly outdated.
The report attempts to address gender inclusivity and the current live wire of the two thirds gender constitutional requirement. It remains to be seen whether new proposals for party quotas and gender shall be “considered” in the selection of deputy governors will be enough for those disappointed by the lack of intentionality to date on this issue.
4.3 million Nairobians must also seriously consider whether they will accept taxation without representation. The BBI report formalises introduces legislation that assigns the National Government all functions of Nairobi City County Government. If they do, devolved governance will soon be history for Nairobi county.
Restructuring the Judicial Service Commission, Independent Electoral and Boundaries Commission as well as converting the Independent Policy Oversight Authority into a Commission and the National Police Service Commission into a National Police Council needs closer examination. Kenyans must scrutinise this from the lens of strengthening not diluting the independence of the judiciary, Inspector General of Police, oversight bodies and constitutional commissions. Does turning the electoral commission into a committee of party agents fundamentally serve the interests of competing political parties or twenty million voters?
Proposals for a stronger presidency, prime minister, two deputies and changes to Senate and National Assembly is already a major focus. Back of the envelope calculations suggest this may cost taxpayers more than 13.8 billion shillings every year. If this is the solution to “winner takes all, zero sum” politics, the first test must be whether the current political opposition Tanga Tanga support the proposals. Kenyans must also ask whether they are value for money.
Laws and national debates are important triggers for progressive political and social change. However, the degree to which the state and the public respects and enforces the rule of law and justice is a pre-condition for success. Ultimately, the real question is whether BBI will transform a brutalised and divided citizenry, reintroduce hope, dignity and empower the most powerless among us. To deliver us completely from our demons, BBI advocates must re-build from the ground up or risk continuing to poke recklessly at the demographic dynamite seen in Nigeria this month.
This article was also published in the Saturday Sunday, October 25, 2020. The night before it was published, Senior Counsel Nzamba Kitonga died. Kitonga was the former Chairperson of the Committee of Experts that stewarded the Constitution of Kenya to promulgation in 2010. The nation is indebted to him for his leadership over this historic document. May he rest in peace.