1. Introduction

Kenya Human Rights Commission(KHRC) is a premier non-governmental organization established in 1992 with a mandate of enhancing human rights-centred governance at all levels. This obliges us to advance progressive legal, policy and constitutional frameworks that uphold human rights and rule of law in the management of public affairs.  Having been involved in the formulation and implementation of the diverse governance processes in Kenya,  KHRC can authoritatively affirm that the making of a constitution for a young republic is often arduous.

However, even more, difficult is the implementation of the constitution with fidelity.  That is because a constitution – though a legal document – is fundamentally a political charter.  It allocates and restricts power, duties, and rights.  It circumscribes the interests of ruling elites and liberates the masses of the people.  At least that is the promise of constitutionalism and democratic theory. However, elites must submit themselves to the predicates of liberalism and the people must be able to hold their leaders accountable.  In the short time, Kenya has been a republic, the elites have been unable to internalize the democratic project and the people have been powerless to exercise popular sovereignty over the state.  Kenya’s elites have manipulated and cannibalized the constitution since the dawn of the republic.

The Independence Constitution fell victim to power games among the elites barely two years after the republic was born.  By 1969, Kenya had become a de facto one-party state.  In 1982, it became a de jure one-party state.  In both cases, the Kenyan state became more repressive marked by corruption and widespread human rights abuses.  In 2010, after many years of deadly struggles, Kenyans enacted a new democratic constitution that the world hailed as one of the most progressive.  It was not perfect, but it opened up avenues for devolution, an expanded bill of rights, and codified independent institutions in the context of separation of powers.  It domiciled power in the people, not the leaders.  However, a decade later, the 2010 constitution has failed to tame the appetite for the imperial presidency, illiberalism, corruption, and ethnic antagonism.  In 2018, after a contentious botched election – and a collapsing economy – Mr. Uhuru Kenyatta and Mr. Raila Odinga entered into a secret political pact.  That pact gave birth to the Building Bridges Initiative (BBI), which has put forward a raft of proposed legal and constitutional amendments meant ostensibly to address electoral violence, corruption, conflictual discriminatory ethnicity, and deficits in democracy.

  1. The Building Bridges Initiative

Political pacts between foes are nothing new.  In fact, some Kenyans welcomed the so-called Handshake between Mr. Kenyatta and Mr. Odinga because it restored a measure of calm in the country.  However, BBI, the signature project of the Handshake, left much to be desired.  The BBI Task Force, its centrepiece, was constituted without public participation and was not broadly representative of the people.  Its activities were closely held and shrouded in opacity.  The public rallies held to popularize BBI were political affairs devoid of serious deliberation.  The BBI report and its recommendations – legislation and the Constitutional Amendment Bill – failed the test of inclusive public participation required of proposals to amend the constitution.  The proposed Constitutional Amendment Bill includes several items that would claw back basic constitutional rights.  Some of these repressive changes include the Judiciary Ombudsman that would further erode judicial independence.  It would re-introduce a more oppressive executive with expanded powers similar to the one in the reviled pre-2010 constitutional dispensation.  Particularly concerning is the proposal for an unjustifiable more bloated legislature at a time of great penury in the country.

The executive that refuses to obey explicit court orders and to honour the recommendations of the Judicial Service Commission wants Kenyans to believe that its proposed legislation and constitutional amendments are in good faith.   Frankly, this is simply incredulous.  How will a state that cannot – and will not – implement the current constitution faithfully carry out a new one?  While the proposal to increase revenue allocation to counties to 35% is laudable, how is that possible when the state is unable and unwilling, to meet the current provision of 15%?  How will a state that cannot – and will not – fight corruption do so because of new amendments?  How will a state that cannot – and will not – remedy ethnic antagonism and ethnic favouritism in the allocation of public resources tame these demons because of new amendments.  The answer is clear.  It will not.

Counties have overwhelmingly passed the BBI Constitutional Amendment Bill after MCAs were induced with massive grants for cars with scarce public money.  The passage has met the constitutional threshold for a referendum sometime later in the year.  In the midst of the devastating Covid-19 pandemic that has destroyed livelihoods, killed many, and pushed people into abject poverty, one must ask if the referendum is a priority.  The country is gagging on foreign and domestic debt for which it has little to show.  Even Mr. Kenyatta publicly acknowledged that Kenya loses 2 billion shillings a day – most of it in monies loaned at unconscionable conditions that threaten Kenya’s sovereignty.  A costly referendum at this time is highly questionable.  Nevertheless, Kenyans will decide the fate of the Constitutional Amendment Bill at the referendum.  In the meantime, the KHRC will conduct political education to ensure that Kenyans fully understand all their options, including why they should vote for, or against, the proposed changes.

  1. The 2022 Kenyatta Succession

The political class understands that the BBI/Referendum push is tied to the 2022 succession when Mr. Kenyatta will be constitutionally barred from running for another term.  Unconfirmed reports, which Mr. Kenyatta has denied, indicate that he may use the proposed constitutional changes in the executive to elongate his hold on power. Meanwhile, Mr. William Ruto is barnstorming the country to succeed Mr. Kenyatta at State House.

Let us be clear.  Neither Mr. Kenyatta, nor Mr. Ruto, should sit in any public office within the state after their terms expire next year.  After the economic pain, mountains of foreign debt, corruption, and poverty wrought under their watch, the pair must retire and go home together in 2022.  The KHRC fought in court to bar Mr. Kenyatta and Mr. Ruto from running in 2013.  We lost the court fight.  However, nearly ten years later, the KHRC has been fully vindicated as to why the duo was unfit to lead Kenya because of the predicates of Chapter Six of the Constitution.  Nothing has changed.  Chapter Six is the anchor of clean governance.  Without its strict enforcement, we will never become a true democracy free of corruption, dictatorship, Illiberalism, and thieving leadership.  That is why referendum/BBI or not, Mr. Kenyatta and Mr. Ruto must retire together and allow Kenyans to freely choose who will take over the state in 2022.

SIGNED

Prof. Makau Mutua, Chair, KHRC Board of Directors.

Davis Malombe, Ag  Executive Director.