A referendum postponed, a referendum denied?
Kenya’s Appeals Court has upheld an earlier decision blocking a referendum on constitutional reforms. Despite threats of another appeal at the Supreme Court, this all but cancels the possibility of a referendum being held before elections due on 9 August 2022. Much of the political backing for the initiative was won by promises of increased funding, new constituencies and increased local control over budgets. The project’s failure, and the loss of those political goods, throws accompanying political allegiances into question.
Significance – Challenging electoral alliances
The plan for the referendum came about as a consequence of the now infamous ‘handshake’ between President Uhuru Kenyatta and his long-term foe turned dauphin, Raila Odinga in March 2018. Their warming relations led to the formation of a Building Bridges Initiative (known as BBI) that delivered a report on constitutional reforms that would be put to the public in a referendum[1]. After a protracted process, the plan was approved by parliament in May 2021 only for the Nairobi High Court to deem the action illegal two days later, saying that the president does not have the authority to institute a referendum calling the bill illegal and unconstitutional. On 20 August, an appeals court agreed with these assertions and reiterated that such reforms can only be initiated by parliament or by popular consensus[2]. The ruling will contribute to a redrawing of battle lines ahead of next August’s general election both ideologically and in terms of allegiance:
For the short term at least, the fight for constitutional reform has been dealt a significant blow. It is unlikely to again pass through the current parliament under these circumstances, all the more so because there was only minority public support for it initially.
However, some MPs from Kenyatta’s Jubilee Party have vowed to attempt to pass some 52 individual clauses through parliament without a referendum[3]. They will likely be opposed by Odinga’s (current) main opponent, Deputy President William Ruto. Initially, Ruto was non-committal on the planned BBI reforms but later came out to call the move an attempted power grab. Following the appeal court’s ruling, he has said that: “they [BBI supporters] should know that there is Kenya outside changing the constitution”, he also called for efforts to now be directed towards reviving the economy.
Odinga will now also face challenges in bringing smaller parties in to his stable[4]. As the favoured candidate of Kenyatta, he would have been expected to implement promises made to various devolved authorities of increased funding, power and influence that would have been brought to them under the BBI initiative. For example, Mount Kenya, Kenyatta’s stronghold, was in line to receive 15 new constituencies.
Like Ruto before him, Odinga is now having to sit somewhat on the fence to maintain his appeal to a broad audience of potential suitors that can help him win the presidency. His initial statement following the ruling highlights this indecision – he speaks both of “pursue[ing] the bigger goal of setting the rest of issues facing this country right” whilst also saying “it is likely that this is not the end of the conversation and the parties involved will each make their own decisions on how to proceed[5].”
Outlook – Election Boost for Ruto, Prosecution Risk for Kenyatta
If the case does end up at the Supreme Court, we can expect to see a continuation of the judicial independence that has been a thorn in the side of many of Kenyatta’s plans. And even if the Supreme Court were to rule in favour of the BBI, there would not be enough time to organise a referendum before the 2022 poll. There had been previous murmurs of delaying the election to allow the provisions of the BBI to be enacted, an avenue that may be sought if any further appeal was successful. Though a very remote possibility, this would significantly increase the risk of political violence across the country as it would be seen as an attempt by Kenyatta to hold on to power past his constitutionally mandated two terms in office.
It was mentioned in the ruling that Kenyatta could face civil charges and there have already been calls[6] for taxpayers’ money that was used in promoting BBI to be refunded by Kenyatta and its’ other supporters. In the eventuality that Ruto wins the election, we can expect this to be pursued as there is a clear and genuine dislike between the president and his deputy.
Overall, the ruling can be seen to bolster Ruto’s chances of victory in the August 2022 polls. With a lack of incentives on the table following the collapse of BBI, his social interventionist policies that centre on job creation, youth employment social housing will likely find a sympathetic ear amongst both the general population and their representatives.
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[1] See: What’s at Stake in Kenya’s Hotly Contested BBI Referendum?
[2] https://www.afronomicslaw.org/sites/default/files/pdf/BBI%20Consolidated%20Judgment%20-%20Final%20Version%20-%20As%20Delivered.pdf
[3] https://allafrica.com/stories/202108240060.html
[4] It is not yet clear under which banner he will stand as his current National Super Alliance (Nasa) is all but disbanded.
[5] https://www.nairobileo.co.ke/news/4074/raila-odinga-reacts-to-bbi-ruling-by-court-of-appeal
[6] Including by Musalia Mudavadi, a former Nasa member who could hold the key to Odinga’s success.
*Photo: Kenya High Court, Wing, CC BY-SA 3.0
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