Correcting misconceptions about BBI

There has arguably never been a more confusing, misunderstood and at times flagrant misrepresentation of any idea, programme or project in Kenya than we have witnessed in regards to the BBI report and its impending implementation.

While at it, it may as well be stated for posterity sake there has never been a more heralded and celebrated euphoria for a flawed document as we saw in 2010 following passage and promulgation of the Constitution.

Yes, the passage of the 2010 Constitution was guided by the best of brains in the business, including Prof Yash Pal Ghai but the good professor would be the first one to admit the final product was less than even close to perfect and the explanation is when you have various powerful competing interests, compromise by definition means imperfection.

Well, and good but one would hope there are lessons learned from the exercise such that the next time people move to fix the flaws in the imperfect document, the exercise would be devoid of or less prone to pitfalls such as we’re witnessing with BBI.

To be sure, while the idea and vision underlying BBI are noble, the problem with the exercise emanates from how the initiative was put in motion. As gazetted, the BBI task force’s mandate was to “collect general public views on the national direction” and to “evaluate national challenges outlined in the nine-point communique made by President Uhuru Kenyatta and ODM leader Raila Odinga.”

BBI was to make practical recommendations and proposals designed to address the various points of contention identified by Uhuru and Raila in their handshake compromise, which gave birth to BBI.

Nowhere in the gazette notice does it say anything about having a referendum, which was a fatal omission and largely the reason we have the ongoing confusion and misconceptions as to what is to happen next.

One common misconception that’s also perpetuated in the media is the false belief that the report is a done deal only waiting to be voted on in Parliament to become law.

Reality is, we’re far from BBI becoming law.

First, there are several proposals in the report that do not need even Parliament action to implement as the President can put those changes into effect through executive powers.

Second, there are several provisions or proposals that would require parliamentary action and the President’s assent to become law under the normal lawmaking process and those will be handled accordingly.

However, when it comes to restructuring the government as proposed in the BBI report, that requires a referendum, not just a vote in Parliament.

Changing the Constitution via the parliamentary option requires a referendum, if the change “relates to” any of the topics listed in Article 255(1) and two certainly do therefore require a referendum.

For example, an argument can be made that creating a prime minister position “relates to” democracy — a national value, which in turn requires a referendum.

That being said, a legal case can be made that a referendum can be avoided altogether and to still put into effect what BBI proposes in restructuring the government. That would, however, require some serious juggling of the pieces and things lining up so perfectly it’s safe to say the better route is to go the referendum route.

Not surprisingly, where one stands on whether we should have a referendum or not, depends on which side of the divide they fall: Uhuru/Raila handshake side, or DP William Ruto's.

Which means we’re trying to utilize a political and constitutional process to solve political problems their architects and practitioners are not willing to part with but are perfectly capable of exploiting those same processes to make sure that’s the case.

To put it mildly, Kenyans we are doomed unless some visionary leader emerges to put the horses back in the barn and start afresh.

That leader may as well be none other than Uhuru himself and, to do so, he will need to think outside the box and if that means hauling Raila and Ruto into a room and forcing everyone to agree on a way forward, so be it.

Samuel Omwenga is a legal analyst and political commentator.