It is race against time as politicians allied to President Uhuru Kenyatta, Deputy President William Ruto and Orange party leader Raila Odinga engage in a battle of wits over the Building Bridges Initiative (BBI).
Political antennas over the matter are in the air already, following Senate leaders’ Kipchumba Murkomen (majority) and James Orengo (minority) clash on a suitable date for a plebiscite.
While Orengo proposes a referendum not later than July this year, Murkomen dismisses the same as a pipe dream.
The flare-up comes in the wake of planned regional meetings to discuss the BBI report, which kicked off in Kisii on Friday before heading to the western region, whose leaders - Amani National Congress party boss Musalia Mudavadi and Council of Governors Chairman Wycliffe Oparanya - remain deeply divided.
Behind the turf wars between Mr Mudavadi and Mr Oparanya in western Kenya and allies of Mr Odinga and Mr Ruto on the national stage is the element of time, which is now making some restless.
And the President has not made the situation any better by not placing a gazette notice extending the BBI team’s mandate.
“The BBI team needs to be gazetted pronto, like yesterday, because without a gazette notice the BBI is not legally effective and time is just not on our side,” says Rarieda MP Otiende Amollo.
There remains a lull at the BBI offices. Reached for comment by the Sunday Nation, most of the commissioners declined to go on record.
BBI’s Joint Secretary, Mr Paul Mwangi, explained they could not comment on the substance and time frames of the initiative, “since we are not yet in office”.
Mr Mwangi was however hopeful a gazette notice would come through “any time soon”.
But Devolution Cabinet Secretary Eugene Wamalwa offered an assurance that nothing stops Kenyans from proceeding with the exercise even without the gazette notice.
“That will follow as per the President’s public assurance, but what is important at the moment is for the people to own the process.”
There are also concerns that the avenue chosen by President Kenyatta to have BBI commissioners spearhead the initiative could consume a lot of time.
Dr Amollo, for instance, prefers the establishment of a committee of experts.
Noting the initial mandate of the BBI team was to collect and collate people’s views, the constitutional lawyer observes the remainder of the task is different and technical, “which is to reduce the BBI report to a constitutional document and to eliminate technical inconsistencies”.
Mr Orengo concurs. The Siaya senator points out, however, that the BBI team can still directly engage the technical services of lawyers and economists in order to hasten implementation of the BBI report.
Before the unveiling of the BBI report last November, teams allied to the Kenyatta-Odinga axis and Ruto were divided in support and against the initiative.
But after Team Ruto’s eventual backing of the BBI report, the battle has shifted to the implementing avenue and timing.
Nandi senator Samson Cherargei, who chairs the Senate legal committee, has vowed the referendum will not take place.
The legislator lists three key reasons that stand in the way of the plebiscite, including lack of a budgetary allocation for the same to this date, lack of adequate time for the crucial ballot and the dilemma presented by a recommendation to reorganise the electoral body.
The timelines of a popular initiative route, same as the BBI, are indeed very tight.
With the publication of the report, Kenyans are supposed to read through the document and offer feedback, to allow the Independent Electoral and Boundaries Commission (IEBC) to draft a constitutional document.
The team is then supposed to raise one million signatures in support of the process, before paving way for the electoral body to study and verify the same.
Once officials of the IEBC validate the one million voters’ list, they will refer the same to the 47 county assemblies for debate and endorsement.
The stipulated period for this exercise, according to the law, is three months. The bill then is forwarded to Parliament for deliberation and possible endorsement, if it gathers support of more than half of the county assemblies.
With such a packed implementation schedule, it is understandable why some are running scared.
The time for the referendum envisaged by Mr Orengo, June or July this year, is halfway the life of the current Parliament.
The last two constitutional referendums were similarly undertaken halfway the lives of the 9th and 10th parliaments.
The one pitting the Bananas and Oranges camps was conducted on November 21, 2005, with general elections being held two years and a month later on December 27, 2007.
In 2010 it was held on August 4, two and-a-half years earlier than the General Elections, which were conducted on March 4, 2013.
It is in the same spirit that Mr Orengo is pushing for a referendum by mid this year.
The seasoned politician argues this will allow enough room for enactment of relevant laws ahead of the next biggest political exercise — the 2022 polls.
Incidentally, the BBI report recommends an overhaul of the IEBC, whose officers are supposed to preside over the referendum.
Mr Orengo maintains the current commission has no capacity to hold a credible plebiscite because it is composed of individuals “who have failed the people of Kenya”.
“However, we may have to do with this team for purposes of the referendum but make sure it goes after the referendum because in my view, this IEBC is a criminal enterprise,” maintains the senator.
Dr Amolo similarly remains optimistic: “The lead proponents of this exercise, President Kenyatta and Hon Odinga, jointly enjoy unparalleled political support across the country and can realise one million signatures in a day or even two.
And with the electoral body having reduced the validation threshold to a listing of voters only and not interrogation of signatures, as was the case with the (Ekuro) Aukot-sponsored bill, the IEBC can similarly give the nod in the shortest time possible.”
Confidence among proponents of BBI is further hinged on the fact that the bill can be dispensed of under the stipulated 90 days once 24 county assemblies endorse the document.
Further, an amendment through popular initiative requires a simple majority support of parliamentarians to be deemed to have passed.
Backers of the BBI report are confident the Kenyatta-Odinga axis can raise this number in both houses of Parliament.
“However the support for BBI goes beyond the so-called allies of the two principals. As far as I am concerned, this exercise enjoys support of MPs across the political divide, and the DP has pronounced himself on this as well,” says Dr Amollo.
Owing to unforeseen impediments, a number of independent initiatives have also sprung up to address the urgency of the matter.
The regional forums, beginning with the one in Kisii Town for the Nyanza region, are geared at proactively engaging local residents.
Mr Wamalwa explains there is nothing sinister about the ongoing regional meetings. Coast and Eastern regions are expected to follow suit.
Mr Wamalwa’s interest in the BBI process seems strategic. Besides the fact that devolved governments fall under his docket, the CS has teamed up with governors in an apparent ploy to kill two birds with one stone.
“Remember the governors are fronting their own process dubbed ‘Ugatuzi Initiative’, and I am glad they are taking the lead in the regional BBI meetings. I hope we will finally end up with one initiative,” he says.
But Cherargei reports that most Jubilee allied politicians are not keen on the referendum because, in their current form, “the BBI proposals only require policy direction by the Executive and amendments by Parliament”.
BBI A HOAX
DP Ruto has similarly pronounced himself on the subject emphasising his preference for the parliamentary route because the referendum and lead up campaigns will generate “unnecessary political heat”.
But noting the amendments to the Constitution may affect the governance structure of the Executive and Legislature, Dr Otiende maintains a referendum is unavoidable.
Senator Cherargei, however, dismisses BBI as a hoax spearheaded by ODM: “Raila is a political genius who is just keeping his supporters busy by exciting them with all manner of initiatives.”