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BBI: The document and reality

By SADIQ ABDI

The much hyped BBI report is out, the launch is done and the political scores will soon be set. The citizenry, erudite, political, pedestrian, and humdrum opinions are out as well, and just like we expected the outcome is partisan even before it has fully circulated and this is my two cent opinion. 

DaShanne Stokes once said “When you’re dealing with frauds and liars, listen more to what they don’t say than what they do.” Indeed, the devil is in the details, the quote is not only candid theoretical but accurately apt for Kenyan political expediency. Kenya is made up of a clutch of tribes, colonial enclaved lands marred with corruption, injustice least but not last, whose ruling class amalgamate in suppressing the ordinary citizens by playing the tribal card in every electioneering period, for this and many other reasons I would like to share the reason why I will vote NO! to BBI on the appropriate time and thus I shall call upon honest, liberal and patriotic Kenyans to read, understand and vote prudently. BBI a political document whose idea was innate out of a political agreement of two men whose family held this country hostage for far too long, we never caused their fight, antipathies, or the aftermath brotherhood.

The proposed amendment bill proposes the creation of Act 10A in the constitution for African integration, regional stability, and developments. Kenya has been a member African Union since 1963 since. Kenya signed more than 74 treaties not limited to but including; African Charter on Human and People’s Rights, adopted in 1981,  Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol), adopted in 2003, African Youth Charter, adopted in 2006, African Charter on the Rights and Welfare of the Child, adopted in 1990.5) African Charter on Democracy, Elections, and Governance, adopted in 2007, AU Convention on Prevention and Combatting Corruption, adopted in 2003.

There are established East African Communities which were created in 1999 and amended on 20th August 2007. The treaty allowed establishments of Interstate organs and community institutions, East African Courts, Legislative assembly, Cooperation in trade linearization and developments, Monitory, cooperation and finance, and many others great intuitions. Kenya is one beautiful girl who every guy in the neighborhood wants to have a coffee with, with zero commitment. The other EA Member states are introducing one single stock market and pulling their companies out of Nairobi Security Exchange. This is self-explanatory why we don’t need the introduction of Article 10A as constitution messiah but instead Kenya should work on the treaties she signed, the laws we passed, uphold and honor our promises. Our relationship with other African nations especially East African has been nothing but a bully and openly dishonest encounter. There is a reason to why Air Ruwanda is reaping the KQ market in Tanzania, if we don’t work on our relationship with our neighbors the economic impact will deplorable.

 The drafters of the BBI document proposed the insertion of Act 11A (Economy and shared prosperity), Act 18A (Responsibilities of a citizen) (Article 31 of the Constitution is amended by inserting the following new paragraph immediately after paragraph (d)— “(e) their personal data infringed.”) intending to make an innovative article. in constitution 2010 the bill of right is well-drafted and reserved, what we don’t have is lack of political and leadership will for the parliament to pass legislation and the executive to draft policy framework to the realization of the economy and shared prosperity. right to data and personal privacy which just requires an amendment to the data protection act 2019, not a referendum, God knows how many millions will it cost this struggling economy. 

 

It is nearly 8 years since the Truth Justice and Reconciliation Commission report was submitted by the Commission led by Amb. Bethuel Kiplagat pursuant to section 10 of the Truth, Justice, and Reconciliation Act No. 6 of 2008 what happens to the report? Does the leadership of this country care what transpired in 2007-08 Post-election Violence? Or were they the architect of chaos just like we knew? Does Uhuru Kenyatta care about the victims of Wagala Massacre? Or does he care about the enormous land he possesses in the name of inherence? How will BBI go to solve the historical injustice if what I read is anything to by? TRJC report was never implemented because the victims are the voters who make long que to the ballot heedlessly while those in power are the actual criminals who don’t want the truth not to see the light of the day. The historical injustice in the county is a textbook building that doesn’t require a paragraph in the book Genesis, it was just the other day when populace counties wanted to have one man, one-shilling formula at the expense of the marginalized counties, half a century, since the independence, under the dispensation new a constitution the children in NEP are experienced hegira of non-local teachers in the name of insecurities, the insecurity created by the same government where the people of NEP became victims on both ends of the war. Will BBI bring back teachers? Will BBI solve extrajudicial killing and enforced disappearances in the Northeastern province. Will BBI keep session paper No:10 of 1965 at bay? I don’t think so. For historic injustice to be addressed we must implement the TJRC report, revisit the demons of 2007-08 PEV by implementing Kregler and Waki reports. We must treat the Somali and Muslim communities like any other Kenyan, the national government should create a policy framework where the Northern and Asal counties get the fair share of the national government development project not just kiambu and other central counties. We should advocate for an equal employment opportunity by revisiting our civil servant database so that we put to stop the narrative of particular ethnic domination in the civil services and the least said hereto will never require a magic wave of constitutional change but it takes honest leadership which this country has the capacity to produce.

The establishment of a youth commission under Act 237A and 7 years’ tax holiday is a very noble idea that we all need, it can be institutionalized, well-funded and managed I tell you it can lead to youth empowerment, job creation which will be a promising future but methinks the intention might good but my I lower my expectation because who doesn’t know the fate of Owezo Fund, Youth Enterprises Fund, and many other youth-oriented government programs which their only existence vestiges on a bulk paper. If honesty is something we care to mention to our young generation, tell me how on earth did the likes of a former vice president, Arthur Moody Awori 91 years old great grandfather got appointed to a member oversight board to manage the Sports, Art and Social Development Fund? To a project which is meant to benefit the youth. really? The best place the youth of this country deserve is the National Youth Service where they overworked, underpaid, starved at the expense of rich procurement officers who in return make billions out of air supplied and something sort of that while those who dry up government coffers walk scot-free. what we need is a robust criminal and justice systems which can hold the criminals who steal from the youth of this nation day in day out. We need to amend our tax laws, company laws, and other relevant financial act so that youth can create fruitful incomes through business, tax amnesty. This will require excellent policy framework which will do better than duping young generation into another predetermined wave of fake promises before you come back with the same promises which our politicians couldn’t keep at the first place. In the meantime, from where I stand there is no hope for youth in BBI.

The other thing which I find amusing is how the Politicians and cohorts make the increasing county allocation funds from 15% to 35% a constitutionals issue. How is it? If you keenly read the proposed Act 217 and Act 218A of BBI, the drafters directly copy-pasted nearly the entire chapter 12 of the constitution 2010, especially Act 217 and Act 218, this is poorly placed. And for the record how did we solve the highly contested recent county allocation standoff at the senate? We all know it went down, President Uhuru Kenyatta through the senate increased the county allocation funds from 316billion to 370billion. Was there a need for a referendum then? Why now? BBI will increase the allocation money to counties is a prosaic opinion, reject it, we can vote BBI out and demand for higher allocation of funds to the counties, one thing has nothing to do with the other. From where I stand, the introduction of ward funds under Act 270A is nonentity but to further delegate corruption with zero accountability. It will either die the death of equalization fund which since the establishment has been nothing but a bunch of paper or it will be dragooned in the fate of CDF, NGAF, either way, the beneficiaries of doles were few steps away from the presidential podium at the Bomas clapping for the eatable foreseeable future. What a tragic. 

 

The winner takes all was/is at the center stage of BBI, this is what many believed to be the root cause of a political predicament, that is what was fed the mainstream media and the majority of Kenyans anticipated as well. Well After reading the proposed document, Winner takes all is one repeated lie which now remains a myth or one unsettled equation. Formerly, a powerful president with limited powers is what the drafters of the constitution 2010 considered as a solution to our everlasting Kenyan political quandary having replaced the constitution 1969 which had former presidents rule the country with an iron fist. Unquestionably there was light at the end of the tunnel. unfortunately, a decade after the promulgation of the constitution 2010 the county’s political chaos and politician’s greed is one thing which we never found a solution for. The highly contested presidential election still brings the country to her knees. Allow me to break it down what the document suggests. The drafters amended the constitution by inserting article 51A which introduced Prime minister and deputy prime minister. the prime minister will be appointed under Article 151B which says (2) A person is eligible to be nominated as the Prime Minister if the person is a member of the National Assembly who is the leader of the majority party or coalition of parties in the National Assembly. Among his role will be under Article 151 (a) be the leader of government business in the National Assembly, (b) oversee the legislative agenda in the National Assembly on behalf of the government; which is not that much different compared to the position of majority leader in the national assembly which under act 180 of the constitution 2010 when it comes to the appointing authority. The role might slightly be different which politically speaking won’t make much difference. Let me ask, If by any chance a party wants to cause political chaos what remedy do we have in place? How is a president appointing a prime minister makes the presidency not a highly contested position when a presidency whose executive wasn’t big enough compared to what BBI proposes nearly made us stateless? How is a president appointing the prime minister addressed the winner take all situation? How did the president appointing prime minister limit his powers? What will stop the president from not appointing from his tribe men and political buddies? And if he does which is highly possible what legal avenues do we have to challenge the appointing authority? What will our political situation be if the majority party doesn’t win the presidency? Doesn’t that mean the prime minister will come from the opposition? How will the government business in the house be conducted? Are we creating more complicated political problems than what we already have? Are we staring at a moment of constitutional crises? Which parliament will pass the amendment when its legitimacy is in question? What happened to the Chief Justice advisory to the president to dissolve the parliament? Many questions remain unanswered. Well to bring this point to its best logical conclusion we need to color, bold and underline our problems because I believe  it is known that a powerful the presidency is not the problem we have been facing since independence, it was never how inclusive the document was, Our problems were either the occupant of the statehouse or the contender and more likely the president and this are my reasons, when the president doesn’t respect the constitution which he swore to protect it, when he uses the justice and security system as he wishes against his/her political opponent, when he awards and benefits his political cronies using the appointing authorities, When the legislative arms of government do not do  it is oversighting authorities and doesn’t hold the executive accountable, when the judiciary is rotten to the core with corruption, where judges interpret the laws as to the executive direction, when the independent offices are not as independent as they ought to be, when the foreign debt erupting like volcano is the last thing the government cares about, when the shilling is losing the last respect  against the dollar, when the citizens of this country pledge their allegiance to their tribes and clan leaders without hesitations, when our political difference isn’t about ideological difference but that of tribe A and B. For heaven’s sake, tell me what amount of prayer and constitution changes will it take for us to realize that our problem is not the document but the people and the leaders? A politics of bad manners is nothing but disastrous. The event at Bomas of Kenya is a litmus paper that we don’t have ideological differences but the greed of different capacities and volumes. As Professor PLO Lumumba said when he was asked what is his opinion on the constitution 2010 and I quote he said’ ’The forest may change but the Monkeys will remain the same’’ 10 years ago we changed the constitution but we never changed the politics of bad manners, we created many offices whose occupant were more liability to the taxpayers than an asset. As a patriot, I have fully read BBI and understood the document to the best of my knowledge. BBI is meant to address nothing but politician’s greed. It is 95% for a political opportunity for the politician and 5% for the taxpayers. that 5% is achievable without a referendum. I believe we can reform, pass good laws, and keep our constitution 2010, own up to our mistakes like men and give mother Kenya a chance to breathe.  

 

The writer is; 

Law student and political commentator. 

SADIQ ABDI

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