25 Oct KLM Speaks To the Nation
Released in Nairobi on 25th October 2020
KENYANS, DON’T BE FOOLED: REJECT THE BBI NYAYOS!
Kongamano La Mageuzi (KLM) has carefully studied the report of the so-called Building Bridges Initiative (BBI) whose chiefs, President Uhuru Kenyatta and former Prime Minister, Raila Odinga launched on 21 October 2020.
KLM reiterates its total rejection of the BBI. From its outset, it was clear to the KLM membership that the sugarcoated BBI is a semi-clever plot by the ruling elite aimed at self-preservation and perpetuation in power.
KLM identifies the BBI as one among several mass psychological operations that the Jubilee administration, with the help of its foreign backers has unleashed on Kenyans to manufacture a fake constitutional moment in our country as a prelude to what is clearly an elite plot to defeat and overthrow our progressive Constitution.
KLM calls on Kenyans to invoke our Chapter 1 collective power, our supremacy and sovereignty to reject the BBI project for the following reasons:
The BBI PROJECT IS ILLEGAL
The BBI Taskforce: KLM wishes to remind Kenyans that the process used to create the BBI Taskforce was illegal from the start to its end. Uhuru Kenyatta and Raila Odinga singularly handpicked members of the BBI Taskforce – all the time in a secretive and opaque manner. KLM believes that membership to the BBI Taskforce was based on the singular criteria of selecting individuals who would, without questioning, deliver a set of pre-determined results that Uhuru, Raila Odinga and their Jubilee Party and opposition ODM intended respectively.
- No authorizing and guiding law: Article 10 of the Constitution of Kenya decrees rule of law. That means that every action of a public officer must be based and guided by a legally valid law. No law gave Uhuru Kenyatta and Raila Odinga the power to unilaterally pick a team to recommend review of the Constitution of Kenya. No law existed or has been passed to guide the activities of BBI. Essentially BBI has operated outside the law and therefore unconstitutional.
- Unauthorized expenditure of public funds: The BBI Taskforce and activities supporting it have been fully financed by the State when there was no law anticipating or authorizing public expenditure on the project. Such unlawful use of public funds automatically adds BBI project to the long list of examples of the contempt with which the ruling elite use public money.
- Secretive and individualized process: Uhuru Kenyatta and Raila Odinga have continued to ask Kenyans to support the outcome of the BBI ‘process’ even when they kept this process and the report a top secret for a long time. This shows a clear and desperate intent to manipulate and manage public reaction to the report instead of, as the Constitution of Kenya requires, making it a transparent, inclusive and an authentically participatory process throughout its course.
BBI PROPOSALS WEAKEN THE CONSTITUTION OF KENYA
KLM notes, overall that the proposals made in the BBI Report would significantly weaken our Constitution and undermine our democracy if implemented. These proposals are especially intended to benefit a few members of the political elite and not for the overall benefit of Kenyans. KLM takes significant issue with the following proposals:
- Responsibilities of Citizens: We note that the Constitution of Kenya already assigns the highest responsibilities to the citizens – including guarding its supremacy and asserting their sovereignty. The proposed responsibilities on citizens in the BBI report come from a place where the government clearly seems to perceive citizens as subjects who have to be patronized. The proposals also seek to pass responsibilities assigned to public officials back to citizens. These proposals invert and mock the power relations currently provided for by the Constitution with citizens being the sovereigns; not the people in power upon whom citizens delegate their power.( reversing the will of the people)
- Parliament: The BBI proposals essentially recommend a significant increase in the size of Parliament at a time Kenyans have consistently voiced concerns about wastage by having a top-heavy and extremely inefficient political system. We are also concerned that the proposals advocate the creation of an especially complex system of representation. This surrenders significant decisions on inclusion of marginalized groups to political parties, thus removing the current process which has seen an increase in the number of marginalized groups represented, especially at the county level.
- The Executive: The BBI proposals make no secret here. The report advocates an agenda to expand the Executive in what is clearly a mission to cater for specific personal interests and egos of individuals driving this process who believe that they, or privileged individuals from their ethnic communities are perpetually owed and entitled to senior state officer positions. In effect, BBI seeks to create a dysfunctional and mongrel Executive with the chilling effect of extending that dysfunctionality to Parliament by requiring cabinet secretaries to also sit in Parliament. Overall, the proposed political structure is irredeemably backward and essentially seeks to interfere with the internal harmony (basic structure) of the Constitution.
- The Judiciary: We are especially concerned by the changes proposed for the Judiciary. The Judiciary has a critical role to safeguard the rule of law and supremacy of the Constitution. Its independence is paramount. That independence has to be both institutional as well as for individual judges. The two critical elements that guarantee the independence of a judge are expressed in an objective appointment and removal process. The BBI proposal to create a position of Judiciary Ombudsperson nominated and appointed by the President shifts accountability of a Judge from the Constitution to the President since Judges will live in constant fear of being removed by the President’s Ombudsperson if they are seen as making decisions that are unpopular with the President. This cannot and should not be. Further, KLM wishes to remind Kenyans that there already exists the office of the Judiciary Ombudsperson that was set up in 2011. The BBI proposals are dangerous attempts by the Executive and probably parliament to intrude and subvert the independence of the Judiciary, which as every Kenyan knows has been under constant attack from the two arms of government. It is very clear that they are revisiting.
Moreover, KLM rejects the ageist proposal of raising the age of qualification of judges by five years. In a country where we have a significant youth bulge, high unemployment and underemployment of young Kenyans, any constitutional provision that makes it more difficult for younger citizens to access public sector service is not only unconscionable but devious.
- Devolution: KLM notes that the illusion created that the most consequential proposal in the BBI Report is to require that minimum county allocation under the national shareable revenue be raised to 35%. This is clearly populist brinkmanship by the captains of the BBI project. This proposal is not as consequential as it sounds. Neither is it a necessary proposal, since at present nothing prevents Parliament and the Executive from making that happen. They can do so without amending the Constitution. What is lacking is political will, which is a behavioral flaw and not a constitutional matter.
- The Police Council: The proposed introduction of Police Council undermines the independence of the National Police Service (NPS) and National Police Service Commission (NPSC). This is because by introducing political actors to play a part in decision-making on policing, it would surrender professional decision-making by the police required by the constitution to political whims. Equally, it will blur the chain of command, responsibility and accountability of the police.
- Independent Electoral and Boundaries Commission (IEBC): The BBI report eloquently discusses the failures of the IEBC and gives the impression of proposing significant reforms. Yet, sadly, the most fundamental change proposed is one that disenfranchises young people and further excludes minority groups, especially those living near the international boundaries where acquisition of national identification documents is a nightmare. By closing the Register of Voters 6 months (120 days) before an election, many young people will be unnecessarily denied their right to vote. KLM is aware that the failure of the IEBC to finalize the register of voters in advance is due to deliberate measures by those in power to manipulate electoral outcomes and not due to continuous registration of voters. It is clear from the BBI report that there is no intention to address issues of electoral justice. The proposals do not address the fundamental flaws in the IEBC, which are well documented, precisely because the failures are not as a result of constitutional flaws but rather State capture of the IEBC. The BBI report confirms what we have said before, that the electoral injustices our country witnesses are not as a result of gaps in the Constitution, but rather the failure to implement it.
KLM categorically restates its earlier position that at the core of the BBI project is a mission to re-introduce and consolidate the imperial presidency, the very reason why Kenyans fought for decades for a new, democratic and people-centered Constitution. We have no doubt in our minds that the overriding agenda of the BBI is to water down our progressive Katiba and in the process create more eating opportunities for members of the inter-ethnic elite clubs that have dominated state and government power since independence.
As we restate our total rejection of the BBI project, we endorse what has already been said by many Kenyans that all the good sounding things in the report do not need any changes to our Constitution to achieve. In the same vein, all the horrible proposals made in the report are an exhibit of the mischief behind the entire BBI enterprise.
It is unforgiveable that our country has continued to experience avoidable political and development stagnation a decade on after promulgation of the Constitution simply because of the selfishness, incompetence and disregard of rule of law by the ruling elite. We dismiss the BBI project for what it is: a survival stunt by a regime that failed Kenyans.
KLM therefore calls on Kenyans to treat the BBI project with the contempt it deserves and reject the farce. We call on all active citizens to firmly stand together in defense of the Constitution against all attempts by the ruling elite to overthrow it.
Further, Kongamano La Mageuzi:
- Calls for the full implementation of the Constitution and appeals to Kenyans, in their masses to rise in one accord to promote and support the #TEKELEZAKATIBA ethos and movement;
- Calls on President Uhuru Kenyatta and former Prime Minister Raila Odinga to immediately stop the BBI project shenanigans, put Kenya first and stop further waste of public resources to subvert our Constitution; and
- Encourages the Presidency of Uhuru Kenyatta and Deputy President William Ruto to resign should they find it impossible to fulfil their oaths of office in which they swore to govern in accordance with the Constitution and the laws of Kenya without fear, favor, affection or ill-will.
Kongamano La Mageuzi shall continue its work of bringing together all progressive Kenyan initiatives, individuals, movements, associations and political parties to provide the much needed transformational alternative political leadership that will defend our Constitution.
We will continue our fight to totally defeat the BBI project and to work together with Kenyans of goodwill to banish from public office all those who continue to undermine our sovereignty and suppress our potential for progress as a nation.
WE REJECT THE BBI NYAYOS!
KONGAMANO LA MAGEUZI