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Last Friday’s High Court knockout blow against the Constitutional (Amendment) Bill, 2020 or the Building Bridges Initiative (BBI) Bill proved one fundamental factor.

That the Constitution of Kenya, 2010 has firmly entrenched the doctrine of separation of powers between the Executive, the Legislature and the Judiciary.  

While the ruling shocked many who had confidently predicted the BBI Bill “dancing the reggae beat” all the way to a referendum, observers of the legal terrain insist its path was littered with landmines.

The independence and competing powers of the three arms of government was amply reflected in the unanimous boldness of the five-judge bench’s interpretation of the law and their verdict on the constitutionality of the bill. 

Analysts point out that the decision is not a surprise within a scenario of judicial liberty and cultivation of jurisprudence with a legacy precedence in the Supreme Court judgement that nullified the presidential election of 2017.

That is why promoters of the Bill in the political class harbouring hopes in the appeals procedure, will be walking a tightrope.  

It will take a herculean legal feat for the Court of Appeal and possibly the Supreme Court to overturn a decision so erudite and so lucidly made by their High Court colleagues. 

That does not mean the BBI Bill is dead and buried. However, a change of tact is necessary.

Promoters of the Bill should take the High Court ruling in good faith, learn from the flaws the judges identified and institute a “Plan B” since a lot of ground has been covered. 

Quickly removing bad elements from the bill could yet salvage the road to a referendum, but time is of essence, with the August deadline fast approaching.

The judges’ decision and the vote in Parliament exposed fundamental constitutional and legislative weaknesses. It also firmly asserted citizens’ constitutional and democratic rights.

Vitally, it demonstrated that the Constitution that took years of national soul-searching, debates and strenuous legislative processes to construct is cast in iron and withstands the test of time. 

It will take monumental effort to amend even one clause of the Constitution – as the drafters intended – reinforcing its cardinal principle (Article 1 on Sovereignty of the people) for “Wanjiku” and strengthening devolution, which the BBI Bill seeks to improve.

The Bill should follow this path, which enjoys massive popular grassroots support and for now shelve the power sharing and constituency increase agenda, the root cause of political divisions providing ample ammunition for critics.

It must revisit the original BBI nine-point agenda initiated to consolidate national unity and seal the political fissures in our fragmented, ethnically diverse nation following bitter and protracted electoral contests in 2007, 2013 and 2017. 

They should sidestep legal landmines and attempts to introduce or amend contentious clauses in the Constitution elaborated in Friday’s ruling.

The derailment of the BBI train is largely the consequence of inaction and impunity.

The Executive’s procrastination on Judiciary and Independent Electoral Commission (IEBC) appointments has also contributed to the BBI’s predicament.

The Kriegler, Waki and the Truth Justice and Reconciliation commissions established in the National Accord that birthed the Constitution set a series of “must dos” and timelines to realise national healing and reconstruction.

Kriegler Commission’s key recommendations included a constitutional and legal framework for the electoral process, organizational structure of the electoral management system and public participation.

The IEBC’s “nakedness” exposed in the ruling s judgement is the sore thumb in the legal-political hubris threatening to torpedo BBI’s noble mission. —[email protected]