Linda Katiba Movement gathered to speak to the nation on the BBI constitutional amendment initiative launched last week, presided over by Hon. Uhuru Kenyatta and Hon. Raila Odinga.
Our message today is threefold.
First, to condemn, in the strongest terms possible, the promoters of a nefarious, cynical and counter-reformist political agenda.
Second, to assure Kenyans that the Constitution of Kenya is still the good document that was proclaimed as one of the most progressive in the world when we promulgated it in August of 2010.
Third, to reach out to other Kenyans of like mind to join us, as we build a movement, the – Linda Katiba Movement – to defend the Constitution, defeat impunity, and advance the transformational agenda that we set for ourselves a decade ago.
We wish to speak to each of these issues briefly.
We are not facing a Constitutional moment.
There is a concerted attempt to manufacture consent to the effect that (a) Kenya faces a constitutional moment and (b) the BBI has come to the rescue. Nothing could be further from the truth. The BBI popular amendment initiative is a cynical mockery of constitutionalism, the rule of law and good governance. It is a travesty of justice.
The BBI is a creature of the March 2018 handshake between Uhuru Kenyatta and Raila Odinga following the contested 2017 presidential election outcome. In the handshake memorandum that they made public, Kenyatta and Odinga promised, and undertook to personally lead the process of healing the country from the divisions caused by the election fiasco.
At no point did they advise Kenyans that they were setting out to review, nay, overthrow the Constitution of Kenya 2010. The BBI Task Force was mandated to recommend “policy and administrative reforms”, and given six months.
A year later the Task Force produced a report proposing a raft of far reaching constitutional amendments. After hostile public reaction, the report was withdrawn.
On the 3rd of January 2020, the mandate of the BBI Task Force was renewed this time as a Steering Committee on the Implementation of the BBI Report. The scope of work was expanded to include “statutory or constitutional changes.” The Gazette notice instructed the Task Force now renamed Steering Committee to “report to the Government” in six months.
These observations leave no doubt that the BBI is a State project. We are now told that the BBI has changed its garb from a State project to a popular initiative. This cannot be allowed to go unchallenged. The Constitution of Kenya 2010 provides for only two processes of initiating its amendment namely popular and parliamentary.
A State led initiative can only be initiated through Parliament, which is one arm of government, while a popular initiative as the name denotes is a people’s process. The usurpation of the people’s constitutional amendment pathway by the State is therefore unconstitutional.
This is no oversight or omission. All the constitutional changes that legalised dictatorship, between the abrogation of the independence Constitution in 1964, and the repeal of Section 2A in 1991, were initiated and pushed through an emasculated Parliament by the Executive. They were all designed to concentrate unaccountable power in the person of the president. The purpose of the BBI constitutional amendment initiative is to do the same.
The Constitution of Kenya is not broken.
The 2010 Constitution embodies the will of the Kenyan people, and adequately expressed in its letter and spirit. The consultative process conducted by CKRC was one of the most extensive and rigorous undertaken anywhere in the world.
Wherever it has been operationalised, upheld and obeyed, it is delivering on its promise. The governance failures that persist – maladministration of the state, corruption, human rights abuses, marginalisation and exclusion, electoral crises, impunity and counter-reformist machinations – are manifestations of defiance of the Constitution by those who now purporting to improve it.
Since coming into office, Uhuru Kenyatta has done little else more than display his defiance and total contempt for the Constitution. He continues to hold the Judiciary hostage, by refusing to confirm the appointments of judges he does not like, and has set the example for members of his government to treat court orders like toilet paper.
The BBI constitutional proposals are designed to cover and entrench leadership failures, greed and entitlement by the current leadership and are not designed to address any of the pressing needs of Kenyans that can be adequately tackled through faithful implementation of our Constitution.
Our stand therefore is that our Constitution is fine. Katiba iko sawa. The electoral grievances can and should be addressed by implementation of the recommendations from the Kriegler report and the relevant provisions of our Constitution and in particular Articles 10 and 86.
It is instructive that the BBI, which is a child of electoral failure, had time and space to delve into all manner of extraneous issues while completely avoiding electoral justice.
The Linda Katiba Movement calls upon Kenyans to demand that the electoral process is reviewed and its chronic failures addressed before the 2022 General Elections. This country cannot afford another election fiasco.
A call to arms.
The BBI amendment initiative is the culmination of a counter-reformist agenda that began with the controversial Security Laws amendment in 2014 and has continued unabated since.
The courts are inundated with petitions challenging many laws and administration actions on constitutional grounds, including by other organs of Government.
Since the handshake, our democracy has been distorted and the role of the minority party (opposition) completely eroded. The opposition is more government than the government.
Uhuru Kenyatta is on record many times expressing distaste for the 2010 Constitution that he is sworn to protect. As for Raila Odinga, his erstwhile compatriots in the political reform movement are no longer certain he is the same person.
Let Uhuru Kenyatta and Raila Odinga know that we are not going back to dictatorship. We shall not allow the blood, sweat and tears of the many gallant Kenyans that fought and finally toppled the KANU dictatorship to be in vain—not on our watch.
We are calling on Kenyans to resist this illegitimate, illegal and ill-timed constitutional amendment initiative. We are calling on all leaders and people of goodwill to impress upon Uhuru Kenyatta and Raila Odinga that the national imperative at this point in time are (a) to contain the Covid19 pandemic, and (b) alleviate the immense hardships that many Kenyans are going through.
Covid19 is leaving many affected families destitute. Millions have lost their livelihoods and are going hungry. Even if the changes sought were legitimate, and we reiterate that they are not, no rational, sane leader would put them above matters of life and death.
We are already receiving reports that chiefs and assistant chiefs are being coerced – and coercing others – to collect signatures for the referendum campaign.
This is an example of the observation we made earlier that the governance challenges we are facing are manifestations of the creeping return of the KANU authoritarian State in which the provincial administration served as the enforcement arm of the imperial presidency.
We call upon Kenyans to resist this flagrant abuse of power, and to flag any incidents they encounter through social media.
To the merchants of impunity and the manufacturers of consent we say the following: your hubris is premature. We the people, will defend our Constitution. We will defend it in the courts of law, in the court of public opinion, in the political trenches, we will defend it everywhere.
We will in the coming days be convening Kenyans to consult on the modalities of organising our defence of the Constitution and what we hope will be our final showdown with the forces of impunity and darkness.
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