There will be celebrations in President Uhuru Kenyatta and his Handshake partner Raila Odinga courts if the Court of Appeal judges today overturns the declaration that the Building Bridges Initiative (BBI) is illegal.

But there will be disappointment at Deputy President William Ruto’s Karen residence.

The converse will be true if the seven appeal court judges uphold the decision of the trial court, declaring the Uhuru-Raila project “unconstitutional, null, void,” in a stinging rebuke that was hailed as a mark of judicial independence, but criticised by a section of the political elite as activism.

This probably demonstrates the high stakes that the country’s key political leaders had attached to the case. 

Legacy, 2022 politics, critical amendments to the law, relations between the Judiciary and Executive, and jurisprudence are all staked at the decision the judges will make today.

Political scientist Sharif-Peter Mogire argues that the BBI projects has immeasurable ramification on President Uhuru, Ruto and Raila and the Judiciary.

“If the court rejects it, it will be a blow for Uhuru who had staked it as his legacy project as well as Raila, who hopes to use the proposed positions to build a vehicle for his 2022 presidential elections.

It is also argued that without an expanded Executive, the Handshake team will be unable to form a formidable alliance against the DP,” he argues.

“While Ruto would have also benefited from the posts which he would share with allies for the 2022 contest, collapse of the BBI could be interpreted as a major score against his boss and dress rehearsal for 2022,” he told People Daily. 

Winner-takes-all

Uhuru and Raila have been championing the project, which proposes radical changes to the Constitution; including expansion of the Executive, but Ruto has raised objections to it, arguing it was calculated to create more seats for his opponents with the aim of blocking his presidential ambitions.

While rallying support for the BBI, which has been the subject of national debate for the past three years, Uhuru and Raila projected it as a legacy project, meant to address the country’s most pressing issues.

These include corruption, divisive elections, inclusivity, security, devolution and shared prosperity.

For Uhuru and Raila, it was an avenue to radically alter the Constitution, to address what they saw as the challenges of the time amidst a strong din of objections from Ruto’s corner and a section of the civil society.

According to the President, Kenya had reached what he described as a “constitutional moment”.

“In 2010, we formulated and adopted a new Constitution, altogether replacing the independence Constitution. 10 years later, I am already discerning a constitutional moment.

Not a moment to replace the 2010 constitution but one to improve on it,” he said during Madaraka Day.

He added: “It is a moment that will right what we got wrong in 2010. But fundamentally, the constitutional moment I discern is one that will bring an end to the senseless cycles of violence we have experienced in every election since 1992.” 

Uhuru and Raila argue that the BBI proposals will cure the winner-takes-all system that is blamed for violence after every election.

Raila has been going around the country rallying support for the project, which he dubbed as reggae, with pundits arguing that he was hoping to use the expanded structure to cobble together an alliance, on which he could ride to State House next year. 

The BBI proposes creation of the post of Prime Minister (PM) with two deputies with top politicians already angling for the positions.

Raila made a passionate appeal for MPs to pass the Constitutional Amendment Bill (2020), which contains the BBI proposals.

“We are making a joint appeal to members of the National assembly and the Senate to join the 3,188,001 Kenyans who supported the Bill, and the 44 County Assemblies who approved it, in upholding what represents the hopes and aspirations, of all those who participated in the various public forums seeking long term solutions to this country’s problems,” said Raila.

“We are asking them to stand up with their country-men in charting a non-partisan and selfless way forward for all of us.

This is not the time for political adversity, not for personal aggrandisement. This is the time to listen to the people and to remember that it is their sovereignty we exercise as their servants,” he added.

While Uhuru and Raila expressed disappointment with the May 13, High Court decision declaring the BBI “unconstitutional”, Ruto took to the social media in celebration. 

Fix ills

Indeed, Uhuru used his Madaraka Day speech to lambast judges for making “irresponsible” decisions and following the letter and not the spirit of the Constitution.

Uhuru said the BBI judgment overturned the people’s will, diminished their power and stifled efforts to fix ills that have bedevilled the country.

“From nullification of a presidential election in 2017, to an attempt to stop the will of the people as expressed through BBI, the Judiciary has tested our constitutional limits,” he said in Kisumu.

But on the day of the judgment, Ruto took to his twitter handle to express his joy over the High Court outcome.

The DP thanked God for being there for Kenyans. 

“There is GOD in heaven who loves Kenya immeasurably. May GOD’S name be PRAISED forever,” he tweeted.

During the official launch of the BBI report at Bomas, Ruto punctured holes into the proposed expansion of the Executive saying it will not address the issue of inclusivity and the winner-takes-all democratic system.

“The President will appoint the PM and the two deputies from the winning coalition. And then we will have the runners up being the leader of the Opposition.

The question I am asking myself is, have we sorted out the winner-takes-all question?” he posed.

“For example, we have the President, I am the DP, (Amos) Kimunya is the PM because he is the leader of Majority, Jimmy Angwenyi (National Assembly deputy majority leader) as the deputy and Maoka Maore as the other deputy, what happens to the whole Nasa brigade?” he asked. 

It is widely argued that the proposal for appointment of Cabinet ministers from both inside and outside Parliament, was the motivation a number of second term governors threw weight behind the project as well as the suggested additional resources to counties.

Besides the politicians, the BBI case will be a major test for independence of the Judiciary and could escalate the supremacy wars between the courts and the Executive.

The major contention in the High Court by a group of influential activists was whether the President can initiate the process of amending the Constitution using a popular initiative.  

The opponents of the BBI also persuaded the High Court that certain fundamental articles of the Constitution were protected from amendment.

Popular initiative

The BBI case was heard by High Court Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka.

In their ruling, judges said any proceedings to amend the Constitution ought to be started either by Parliament or through a popular initiative. 

But they argued that the President cannot deploy the popular initiative arguing that that route was reserved for the ordinary citizens otherwise christened as Wanjiku.

“A declaration is hereby made that the President does not have authority under the constitution to initiate changes to the constitution, and that a constitutional amendment can only be initiated by Parliament through a parliamentary initiative under article 256 or through a popular initiative,” ruled the five-judge Bench.