Kenya intends to hold a referendum in June 2021, if not earlier, but there are multiple challenges ahead.
With just 20 months left in his last term in power, Kenya’s President Uhuru Kenyatta, 59, intends to engineer major constitutional changes that will affect the structure of his successor’s government. The changes, contained in a constitutional draft bill colloquially known as the Building Bridges Initiative (BBI), is the result of a March 2018 ‘peace’ deal between the president and his three-time rival in the polls, opposition leader Raila Odinga.
“Major changes are needed to our Constitution and other laws so as to lay the foundation for the prosperous future that we seek,” Kenyatta told parliamentarians in a mid-November speech.
Atop the list of changes in the draft laws are re-introducing the positions of Prime Minister and two deputies, Leader of Official Opposition, as well as expanding the legislature by adding 70 more seats.
By December 2020, the proposed changes were supported of nearly every major political leader in the country, including Deputy President William Ruto, 54. Originally opposed to the process, Ruto has since said that his job is to support his boss. He has, however, avoided giving the draft laws his direct support.
“The constitution is about every Kenyan, myself included,” he told a local TV station in early December, “If it is being amended, I do not have the luxury to stand aside and do nothing about it…I do not want history to judge me for not stepping out to speak out.”
The Ruto succession?
In October, Ruto pushed for several changes to the draft bill, some of which were included in the final draft launched in November by President Kenyatta and Odinga. He has since sought to buy time by asking for a consensus among the top leaders before the plebiscite.
His underlying demand for a no-contest referendum appears at the same time capitulation and continued resistance, perhaps meant to buy time to gauge the public mood on the proposals while leaving enough space to disown it if it fails.
While Ruto was deemed the de facto successor to his boss when they were first jointly elected in 2013, the two of them have grown apart over the years especially after Kenyatta reconciled with Odinga in 2018.
The resulting rift led to divisions in the ruling party, which expelled Ruto’s allies from leadership positions in Parliament and the Senate in May and June 2020.
But despite the state-driven support, the constitutional changes still face major hurdles.
Among them is the fact that in the face of the COVID-19 pandemic, which has gutted major economic sectors, disrupted society and worsened the debt burden, the cost of the referendum could itself be an issue.
Since mid-2020, Odinga has been engaged in a public back and forth with the country’s electoral body over the cost issue, which will most likely grow as the process moves along in early 2021.
The first part of the process, after introducing the draft law changes to the public, was to collect at least one million signatures from the electorate and submit them to the electoral body. The campaign submitted 4.4 million signatures in mid-December.
If the signatures are verified, the bill’s proposers will then need to submit it to the country’s legislatures, first at the county assembly level and then in the national assembly, all before the referendum.
This elaborate process was part of the fail safes introduced within Kenya’s new constitution 10 years ago.
The referendum is widely seen as an early contest between Odinga and Deputy President Ruto on who has more popular support to succeed Kenyatta. But the deputy president’s refusal to lead opposition to, or expressly support, the draft bill has left his opponents in a bind.
Building consensus is key, but time is of the essence. The BBI has timelines that should be adhered to for the country to have a say and move on. As a leader, taking Kenyans in circles without a clear position amounts to a failure to provide effective leadership.
The BBI referendum will be the fourth referendum in the country’s independence history, and the third in the last decade and a half. While the issues in it will affect the political structures for the long-term, the goals driving it now are far more short term.
First, the political exercise of campaigning for a referendum allows for political rearrangement – in 2005, Odinga (and Kenyatta, who was at the time Leader of Opposition in Parliament) opposed the constitution proposed by President Mwai Kibaki’s government, in which Odinga served as a Cabinet Minister at the time.
Odinga’s current party, the Orange Democratic Movement (ODM), was born out of that referendum process and even its name is a direct result of his success—the symbol of the successful ‘No’ campaign in the elections was an orange.
In 2010, Ruto did the same thing, opposing the new constitution at the referendum while he was a government minister. Although, unlike Odinga five years earlier, he failed at the ballot, the process allowed him to create his own political support structures and a national profile.
A fifth column opposition is unlikely to come from the Cabinet this time, as the new constitution did away with elected legislators being appointed to the Cabinet (which the new amendments propose reverting to).
In the absence of direct opposition within governance structures, a small but growing coalition of politicians and civil society activists has sought to fill the gap.
One, the “Linda Katiba” (Protect the Constitution), the coalition is led by Narc-Kenya leader and 2013 presidential candidate Martha Karua, economist and public intellectual David Ndii, and social activists Boniface Mwangi and Jerotich Seii. It is also affiliated with other attempts to scuttle the proposals in the courts in at least two suits filed by county governance structures.
With just six months to go the planned referendum, it is still possible that the draft bill will face an organised opposition, or an organic one at the polls.
If it does pass, then the second half of 2021 will involve a flurry of legal and political realignments as well to hire new officials to the electoral body, delineate boundaries for new constituencies, and prepare for the Kenyatta succession.
With Odinga and his former partners in his 2013 and 2017 presidential runs mostly aligned on the need for an expanded Executive, and President Kenyatta in open support of the process, it seems improbable, but not impossible, for the referendum will fail at the ballot.
The promise of expanded appointive and elective positions is likely to draw widespread political support, but the underlying cost implications, the ticking clock to the 2022 elections, are likely to be at the heart of any opposition.
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