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 On the morning of March 9, 2018 I received a phone call from my course mate who asked me to tune in to Citizen TV and after tuning, I saw President Uhuru Kenyatta and Opposition leader Raila Odinga on the door steps of Harambee House. 

President Uhuru Kenyatta (C), Deputy President Dr Ruto and Opposition Leader Raila Odinga during the launch of BBI. Photo/COURTESY. This writer says 80% of BBI caters for the elite and little is left for ordinary wananchi.

It is believed that the two were in a closed door meeting for hours. It is after that meeting when the two read their statements and agreed to put their political differences aside and “work for the interest of this country”.

They argued that Kenya is bigger than individual, elections come and go but Kenya will remain. None of the NASA Co-Principals knew the two were having a meeting, almost all of them said they saw it on their screens. Others said Deputy President was caught unware.

Nobody ever imagined or thought that the two would shake hands and end their differences. It is said that in politics there are no permanent friends or enemies and a day in politics is like a thousand days.

The two were presidential candidates in the 2017 hotly contested election. IEBC declared Uhuru as President-elect but Raila and his team rejected the polls. Nobody knew what the Opposition were up to because during their campaigns they had said they would not go to court again but on 18th of August 2017, Raila surprised his supporters when he opted to file a petition challenging the presidential election.

Their statement read "We had said we will not go to court. But with the raid of civil society and determination to silence all voices that could seek legal redress like Africog and Kenya Human Rights Commission, we have now decided to go to court and lay before the world the making of a computer generated leadership. Our decision to go to court constitutes a second chance for the Supreme Court to redeem itself or like in 2013, it can compound the problems we face as a country." On September 1st, the Supreme Court nullified Presidential election.

Chief Justice Maraga in his judgment said the election had not been conducted in accordance with the dictates of the constitution, ordered IEBC to conduct a fresh presidential election within sixty days which was supposed to comply with the electoral laws spelt out in the constitution. Raila and his team boycotted the fresh presidential election after their irreducible minimums were not addressed. This followed formation of people's assembly, arrest of NASA politicians, and boycott of products like Bidco, Brookside and Safaricom.

On 30th of January 2018, Raila was sworn in as the people's president, the other co-principals boycotted the swearing in which the media has severally referred as Mock Swearing.

For over three years now since Raila and Uhuru had handshake, we have witnessed political stability, peace and unity. Citizens can move freely across the country without fear of being subjected or classified according to their ethnicity.

Many have lauded handshake as a step which should be emulated by future leaders. However, there are those who believe there is no Opposition which can offer checks and balances and act as a government watchdog.

Their argument is Raila appears to be in government and opposition at the same time. Some believe the president has neglected the Big Four Agenda for BBI and isolated his Deputy.

Kenyatta legacy

However the president has said severally that he wants to leave a united Kenya free of tribalism, electoral violence among other factors when his term expires next year. Uhuru and Raila identified the nine point agenda, some if not all they believed have been ailing Kenya since independence. They are; corruption, lack of national ethos, devolution, divisive elections, safety and security, responsibilities and rights, inclusivity, shared prosperity, responsibilities and rights. All have been addressed in the Building Bridges Initiative. In this opinion piece, I am going to highlight the gains and demerits of BBI.

Here are some of the proposed changes contained in the Constitution of Kenya Amendment Bill 2020:

Additional 70 constituencies and 47 female senators. BBI has proposed for additional seventy constituencies in areas perceived to be populated like Kiambu and Nairobi. Additional constituencies to those areas means more development and additional resource allocation like constituency development funds. The document has also proposed for each county to be represented by a man and a woman in the senate in order to bridge the two third gender rule but the question I am asking is when senators will be voting either to impeach a governor or for other reasons, who will be eligible to vote?.

Some say there is a proposal to nominate 180 legislators should election outcome fail to comply with gender rule. While these proposals will work for those who will get the new constituencies and women, it is the taxpayer who will cater for their salaries and expenses. We may end up with over six hundred legislators. Economists say their salary per year will amount to Sh3.7 billion. Jubilee government has relied on borrowing and we are not sure if the next president will continue to borrow or repay the existing debt which has raised to Sh7.2 billion according to Central Bank Kenya website.

Expanded Executive. There is a proposal to establish the office of the prime minster and two deputy prime ministers who will be part of the Executive arm of government. The prime minster will be the leader of government business in the National Assembly, oversee the legislative agenda in the   National Assembly on behalf of government and chair cabinet committee meetings as assigned by President.

The Prime Minister can also delegate some of his duties to his deputies. Political analysts opine that this will address inclusivity. But for one to be appointed in those offices, he/she must be an elected member of parliament. This will also work for the coalition that wins presidential election. William Ruto while making his speech during the second launch of the report at Bomas of Kenya questioned whether the BBI addressed inclusivity question. He used the current example in Jubilee government where Amos Kimunya is the majority leader, Jimmy Agwenyi and Maoka Maore are his deputies. He wondered what will happen to Musalia Mudavadi, Kalonzo Musyoka and the entire NASA coalition.

Under the recommendation of the BBI if any of those wants to become Prime Minister then they will have to vie for Member of Parliament in their respective constituencies. Runners up in the presidential election will become an official opposition leader who will be an ex-officio member of parliament alongside cabinet secretaries who are not members of parliament.

Imperial President. There are those who suggest that BBI concentrated a lot of power to the President. Under the BBI recommendations, President remains the Head of State and Government and Commander-in-chief of the defence forces. The president also has a jurisdiction to appoint and dismiss Prime minster and his deputies, cabinet ministers and other state officers at will.

Most governance experts rooted for the establishment of parliamentary system of government where some presidential powers are delegated to the Prime Minister. The report also failed to assign defined functions to Deputy President. Under the constitution pursuant to article 147, the deputy president has no defined roles other than being the Principal assistant to the President.

Judiciary Ombudsman. There is a proposal to establish the office of judiciary ombudsman. He/she will be tasked with receiving and conducting inquiries into complaints against judges, registrars and other staff of the judiciary. This is a good recommendation but I disagree with the process of recruitment. He/she will be appointed by the President and approved by the senate. I would have proposed judicial service commission be tasked with recruiting the said office holder like it recruits Chief Justice. An appointee of President will look like the attorney general who always supports the government agenda. This will interfere with judicial independence.

Proposal to increase county funds from 15% to 35%. This is a good proposal because counties will get extra cash for development even though some have questioned if the government has failed to disburse the current funds to the counties, will it disburse extra cash? Alongside the increment of revenue to counties, there is a proposal to establish constituency development fund which will be used for implementation of national government development projects. The government allocates CDF funds to the constituencies but it had not been included in the constitution.

Ward development funds have also been captured in the amendment bill. This will constitute five percent of county government revenue. The funds will be used to facilitate the economic and social rights set out in article 43.But in order to slay mismanagement, embezzlement of funds and fight corruption, BBI steering committee should have considered adopting justice Mumbi ruling which requires a state officer accused of corruption and taken to court step aside or be barred from accessing his/her office pending hearing and determination of his/her case.

Establishment of Youth Service Commission. The commission will comprise of six members, four of them being youth. The commission will be responsible for advancing the participation of youth in all spheres of public and private life. PLO Lumumba while being interviewed by Jacky Maribe suggested we don't need the commission if we have ministry of youth. He also said we have too many commissions and some of them are not necessary.

The Youth have also been given a seven year tax holiday, University students/graduates have also been given a grace period of four years to start repaying the Helb loans. However, these two proposals are in the main report. They haven't been included in amendment bill. Furthermore these two proposals can be addressed through parliamentary legislation.

At the time of writing this opinion, 42 county assemblies had already passed the Constitution of Kenya 2020 Amendment Bill which is more than the number required (24). The bill now proceeds to the National Assembly and Senate for debate. Should the August House fail to pass the bill, Kenyans will go to a referendum to vote for or against the amendment of the constitution.

Deputy President William Ruto has rooted for a multiple choice referendum where Kenyans can vote for changes they want, but Dismus Mokua would say Moraa in Mosocho is illiterate and multiple choice questions won't work for her. Should we go to the referendum, the ball is in your court. But as a political analyst and having read the BBI report several times, I can state 80% of the contents of the report has addressed the political and ruling class. This was also confirmed by Uasin Gichu Governor Jackson Mandago. It has partially addressed the concerns of the ordinary mwananchi even though the role of state officers is to represent the people of Kenya.

KITONGA MUSYOKA is a Political Analyst. He comments on political, policy, constitutional and legal topics.

Edited by Musyoka Ngui.

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