Kenya: Lobby Group Says There's No Legal Crisis to Warrant BBI Constitutional Reforms

(file photo).
30 November 2020

The clamour for constitutional amendments through the Building Bridges Initiative (BBI) has already taken a 'Yes' versus 'No' trajectory after civil society groups and a section of political leaders on Sunday expressed their opposition to the push for the changes spearheaded by President Uhuru Kenyatta and ODM leader Raila Odinga.

Deputy President William Ruto has been pushing for a consensus, even after the two leaders launched the signatures collection drive last Week.

"We are working on consensus for Kenyans to have real choices to decide and vote while avoiding 'Yes, No' division," Dr Ruto tweeted on Saturday.

But even as the DP placed his hopes on dialogue to avoid a contested referendum, on Sunday, rights activists, uniting under the Linda Katiba movement, declared their opposition to any plans to amend the 2010 Constitution through the BBI, terming it a "travesty of justice".

They said that Kenya is not in a constitutional crisis to warrant any amendments to the Constitution which was promulgated in 2010, which they noted was people driven following the extensive involvement of the people by the defunct Constitution of Kenya Review Commission (CKRC).

No need to amend constitution

Expressing their reservations about the BBI initiative, Mr David Ndii, Narc-Kenya leader Martha Karua, Mr Boniface Mwangi, Prof Gitile Naituli, Ms Jerotich Seii and Ms Daisy Andany of the National Women Steering Committee (NWSC), among others, said "the Constitution of Kenya is still the good document that was proclaimed as one of the most progressive in the world", hence there is no need to amend it at the moment.

"We therefore reach out to other Kenyans of like mind to join us, as we build a movement, the - Linda Katiba Movement - to defend the Constitution, defeat impunity and advance the transformational agenda that we set for ourselves a decade ago," they said during a press briefing at the Serena Hotel in Nairobi.

Ms Karua said BBI, being a State project, is an illegality since the constitution only provides for only two processes of initiating its amendment - popular and parliamentary initiative.

"A State-led initiative can only be initiated through Parliament, which is one arm of government, while a popular initiative, as the name denotes, is a peoples' process," she said.

"The usurpation of the peoples' constitutional amendment pathway by the State is therefore unconstitutional," the former Justice minister added.

Mr Ndii said the BBI process is illegal, unconstitutional, flawed and intended to return the country to the dark days when the provincial administration was used as the enforcement arm of the imperial presidency.

"We are calling upon all to rise up and to know that our freedoms, our civil liberties and ability to hold our leaders to account which they continue to refuse can be taken away with our participation.

"One thing we must do is to withdraw our participation so that we [stop] these insidious, cynical attempts to overthrow the Constitution and legitimacy," Mr Ndii said.

He said Kenyans must rise up and defend the 2010 Constitution, arguing that it has survived 10 years of various types of assault.

"The independence constitution was not so lucky. It didn't survive two years yet we had a progressive constitution at independence.

"It was abrogated in the same manner by whipping up political sort of sentiments, mobilising ethnically, dividing people and it is instructive that the two partners (Uhuru and Raila) who want to overthrow the 2010 Constitution are the sons of the people who overthrew the independence constitution," he said.

Mr Ndii disclosed that "we are going to use every other lawful constitutional means of protest, political engagement using the Judiciary, mobilising people so that we can defend the gains in the 2010 Constitution and to further its transformative agenda."

Court orders

The BBI opponents accused President Kenyatta of doing little to defend the Constitution which he swore to defend at all times.

"He continues to hold the Judiciary hostage, by refusing to confirm the appointments of judges he does not like, and has set the example for members of his government to treat court orders like toilet paper," Mr Mwangi said.

The BBI constitutional proposals, he added, are designed to cover and entrench leadership failures, greed and entitlement by the current leadership and are not designed to address any of the pressing needs of Kenyans that can be tackled through "faithful implementation of our Constitution".

"Our stand, therefore, is that our Constitution is fine. Katiba iko sawa. The electoral grievances can and should be addressed by implementation of the recommendations from the Kriegler report and the relevant provisions of our constitution and, in particular, Article 10 and 80," Mr Mwangi added.

The activists called for a review of the electoral process in Kenya, adding that its chronic failures should be addressed before the 2022 General Election.

Prof Naituli and Ms Jerotich said that since the handshake between Mr Kenyatta and Mr Odinga, democracy has been distorted and the role of the minority party (opposition) completely eroded.

"The opposition is more government that the government," Ms Andany said.

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