BBI: MUTILATION OF THE CONSTITUTION

By Billow Kerrow

In essence, there is nothing wrong in amending a Constitution. The famed 1996 South African Constitution has since gone through 17 amendments, made by Parliament to address emerging challenges. What BBI proposes are not amendments to enhance the Constitution but a radical review of the 2010 Constitution. Most proposed amendments are outright irrational, some too mundane to be in the Constitution and yet others, likely to create more mischief and disharmony, and undermine good governance. It seeks to amend 15 out of the 18 chapters of the current Constitution, and amounts to mutilation, not amendments!

Our Constitution was the culmination of 20 years struggle by Kenyans that started in early 1990s, following the agitation for restoration of democracy. It involved an intensive bottom-up people-driven process that climaxed in a year-long 3,000–member national delegates conference at Bomas in 2004-2005, representing Kenyans of all walks of life and complete with a validation mechanism. The CKRC process was a massive public participation exercise, with unmatched civic education at every stage. The end product was a people-owned Constitution which was finalized in 2010 by the Committee of Experts that re-examined it and sought consensus on every contentious issue.

What is BBI? A handshake, a gentleman’s agreement to circumvent the will of the people of Kenya by shredding the Constitution to serve one objective – share power. This subversion of our rights as the citizens is ostensibly to right “winner-takes-it-all” politics. Ours is a “first-past-the-post” that is the essence of representative democracy worldwide, not the former which is a convenient term coined by the gentlemen to give credence to the document. If competitive democracy or conflictual politics is a mischief, one would have thought they would instead embrace consensus or negotiated democracy; they instead opted for a muddy concoction where candidates will compete but after the vote share the spoils. Or so, it seems! In fine print, the document gives all the powers to one man, the winner, to use it as he or she deems fit…back to where we started in 1990s.

All other proposals are sweeteners to get the document to appeal to all sectors. Unfortunately, most are not worth the paper they are written on. As usual, we are not short of cheerleaders, opportunists and sentimentalists outdoing each other, proclaiming that BBI is the panacea for all our problems; sort of an antidote that cures the myriad of challenges we face overnight, including Covid-19. To others, the end justifies the means. However, BBI is more likely to undermine inclusivity, national unity and all other lofty terms used in the document.

What ails our nation is the poor leadership & lack of good governance, not the Constitution. At worst, it is the lack of its implementation that is the bane of our challenges, including lack of fidelity to it and the rule of law in general. In July 2012, Prime Minister Raila Odinga noted “that the culture of creating good laws, then undermining them at every turn had become entrenched in the country where majority still wallow in misery while the ruling elite continue to enjoy themselves in luxurious lifestyles. Let us not forget what gave us the final impetus and courage and made majority accept that indeed we needed a new constitution. He challenged Kenyans to rise and defend the constitution and ensure its full implementation.”

Today, he leads the team that wants to mutilate the same Constitution he fought hard to enact. President Uhuru has never been much of an enthusiast on matters Constitution. As the first President to serve two terms under the new Constitution, he had the singular opportunity to oversee its full implementation, and run away with a prized legacy. Regrettably, he too is on the wrong path. History will judge him harshly.

I hold no brief for anyone. I attended the first NCEC conference on Constitutional talks at Safari Park Hotel in June 1998, then an activist representing Muslim organizations. In 2004, as MP for Mandera Central, I chaired the Steering Committee that collated and finalized the Bomas Draft chapters on Public Finance, Leadership & Integrity and Public Service. I have seen men & women of distinction struggle all those years to get our current Constitution, billed as one of the best in the world. There is nothing fundamentally wrong with the Constitution that justifies its mutilation.

Many friends have sought my views on BBI…that’s it. Reject It!