The release of the Building Bridges Initiative (BBI) report was without a doubt one of the defining moments of the decade in Kenya.
We waited with baited breath for the brainchild of President Uhuru Kenyatta and former Prime Minister Raila Odinga.
Kenyans have only ever witnessed an alliance of this scale twice before. It happened the first time in the electoral pact between Mr Odinga and President Mwai Kibaki in 2002, ironically, to defeat Mr Kenyatta in the race for the first post-Moi presidency.
The second occasion was between President Kibaki and Mr Odinga, when they signed the 2008 power-sharing deal to end the post-election violence.
Almost 10 years later, a “dual” general election in 2017 left the nation stumped. The wounds could only heal by bringing together the two warring sides. It seemed impossible but it happened with a surprising and unexpected “handshake”.
It was a good political start but it had to be operationalised. A team of prominent persons was put in place and the BBI was launched. The team came up with a report entitled Building Bridges to a United Kenya: from a nation of blood ties to a nation of ideals.
Mark Twain wrote, “Always do what is right. It will gratify half of mankind and astound the other”. This was bound to happen with the BBI; half of the country would be pleased and the other half would not.
Despite its strong support and equally strong opposition, a BBI report seems better than no BBI report.
Setting the record straight
The BBI report is palliative care on a bleeding nation. It is the first full document discussing the major challenges we are collectively facing as a nation.
In the past, we have had commissions of inquiry and task forces that looked into very specific areas, from education to land, corruption, historical injustices, ethnic and post-election violence and so forth.
It goes without saying that the BBI report is significant. Its breadth covers issues affecting Kenya from her independence in 1963 to date.
The BBI gave us the possibility of turning the page and starting afresh; a chance to forget the ills of the past, forge a better future and perhaps, at the start of this new decade, celebrate.
However, as we ushered in the 2000s Ethiopian writer and political activist, Hama Tuma, was sceptical about Africans having a reason to celebrate.
He said, “We Africans are condemned to repeat the past not because we forget it but mainly because we are forced to relive it.”
It is hard to disagree with Tuma. So the big question is: how do we avoid the fate that Tuma bleakly predicts? Can we find the right answers in the report’s recommendations and execution?
Kenya’s current mayhem calls for thorough changes, which require both a desire to change and an ability to execute that desire. In this context, change can only be achieved when recommendations are diligently made and acted on.
The report could have made recommendations that, if implemented, would have provided the institutional framework for such change. But in this respect, not only has it fallen short but also does not even scratch the surface.
The BBI report hit the nail on the head when it came to challenges. Sadly, it fell disappointingly short by making blurred recommendations with little logical and rational flow between the problems stated and its conclusions and recommendations.
The report is a missed opportunity; it is a bittersweet mixture of key issues and downright dangerous suggestions. For instance, it proposes a more powerful two-term presidency, which proves we have not learned from our history as Tuma predicted.
Which sides are these bridges connecting?
The report contradicts itself in a manner difficult to explain. In attempting to move Kenya from a nation of blood ties to a nation of ideals, its recommendations are extra-constitutional, meaning they are not tied into any legal framework.
And most of the challenges it addresses had already been covered in the 2010 Constitution of Kenya.
It waxes lyrical about diversity and enhanced gender representation yet only four out of 16 taskforce members are female (far below the ideal one-third gender rule).
There is also only one person living with disabilities, and almost all the members have a social science background. It talks about the importance of youth, yet the average age of its membership is close to 60. Certainly, these basic “architectural flaws” should have been foreseen.
It also exhorts the readers more than once to read the report in its entirety yet it falls into impenetrable language, with terms such as “heresiographies” and “autochthonous” being examples that make you reach for your Dictionary.
The contradictory governance drama
Wachira Maina explains that our constitutional history is marked by the historical tension between decentralisation and overconcentration of executive power.
At independence, power was relatively devolved, but one constitutional amendment after the other brought it to the centre and concentrated it on the president.
This trend was broken by the 2010 Constitution, which devolved power again to the peripheries, but now we seem to want it back at the centre.
This phenomenon is common in Africa. Nwabueze defines it as the Africanness of the presidency; an almighty presidency which is free from limitations, checks and balances, and restraint mechanisms.
The BBI report explains that “proposals for reform is the theme of dissipating executive authority: as a way of taming the potential for executive overreach…” yet the same report also proposes an even more powerful presidency with a prime ministerial system fully dependent on the President, without even giving the Prime Minister the power to appoint Cabinet.
Should we not consider having a single seven-year term to avoid the tensions that inevitably arise from the need for re-election? Why does the report duck dealing with Kenya’s divisive elections? Why have the Kriegler Commission’s recommendations not been implemented?
It also ignores the failures in election machinery, technology and procurement, which is commonly considered to be a key stumbling block to legitimate elections.
It identifies government as a major contributor to what ails Kenya by reminding us, quite rightly, “that the very size and inefficiency of Government is at the heart of the current debate”, yet it proposes a bigger government.
What about our bloated government?
There is not a single, specific recommendation to reduce the size of government except to abolish the post of chief administrative secretary. On the contrary, it proposes additions such as a Prime Minister and deputies, new commissions, an Official Historian and a Participation Rapporteur.
It also calls for the privatisation of government services as a solution to corruption, but fails to provide any suggestions as to how we might avoid the failures that have sooner or later plagued our previous privatisation projects, our national airline being a case in point.
Kenya is beyond corruption and has graduated into state capture. Will the suggested privatisation programme fall into the same state capture trap that many Eastern European countries fell into when they underwent mass privatization during their transition from authoritarian communist systems to more democratic market economies at the end of the last millennium?
Enthusiasm for the other arms of government is less than equal to that of the executive. The Judiciary receives only half a page of attention, and the legislature even less, beyond its role in the proposed parliamentary system.
Recreating our history without thinking of tomorrow
To deal with our apparent lack of a national ethos, “we should give ourselves a definitive, evolving and inclusive history…which should go back 1,000 years”; to “produce a vision of a unique Kenyan civilisation 100 years from today” and that to do so, we should create a new Official Historian resident in the National Archives.
A sense of national fraternity, nationhood and patriotism is important. Political scientist Benedict Anderson in his book Imagined Communities, states that “profound changes in consciousness…bring with them characteristic amnesias”, suggesting that building a nation means remembering the same things, but also agreeing on what to forget.
It is impossible to carve out a collective national identity overnight, and besides, the process of “constructing” history should be an organic task and not one, imposed from and created by government.
After all, history is the quest for the truth about our past, whether for better or worse. Anything else could lead to national self-delusion. Reconstructing history may be an important task as long as we look for our truth and identity.
As we bring our history together, we also need to bring our economy to a functional level. Love with hunger is not sustainable. We will never love the country that cannot feed us, the country where millions go hungry.
Kenyans are desperate for growth more than anything for we cannot eat our history. Regrettably, the report is blind to our future needs, placing more emphasis on our past rather than our future.
For example, there is no engagement with the subject of Artificial Intelligence (AI), Machine Learning, STEM subjects, Digital Printing and Robotics and the impact on conventional post-agrarian development models.
Avoiding unscientific conclusions driven by emotional impressions
The report contains many sensible recommendations but it sadly felt short on essential methodology that could have led to stronger and robust recommendations.
Hard data is missing which leads to unscientific conclusions driven by emotional impressions. The only statistics on the report appears on page 22, when it says that Kenyans in the age group 15-24 make up 20.3 per cent of the population.
This has an explanation. The taskforce consulted more than 7,000 citizens, but the process was based on group discussions and the team used convenience sampling.
It would have been of interest to know, for example, how many favoured or disagreed with the parliamentary system (especially given the new positions to be introduced), as well as the national volunteer network.
No doubt, the report is written in beautiful prose; it is a mirror on the soul of our nation and it should lead us to self-reflection. As we enter the third decade of the 21st century we should ask ourselves: will this time be any different?
The handshake was necessary for the healing of the nation. It was a good start. The question for Kenyans is whether we can make something meaningful out of this BBI process.
Can our political leaders find the courage and sincere disposition to put the common good above their personal gain, and the people before their personal ambitions?
This article is part of a long series of articles on the rule of law in the context of politics and ethics. The series is researched and co-authored by:
•Prof Luis Franceschi, founding dean of Strathmore Law School and Visiting Fellow, University of Oxford.
•Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates.
•Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
•Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates