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Judges reject the Kenyatta-Odinga plan to remake government but help their rival Ruto

Why the court ruling scuppers the government’s plan for a July referendum and boosts its opponents

Political allies President Uhuru Kenyatta and erstwhile opposition leader Raila Odinga have to rethink their political strategy after the High Court in Nairobi threw out their plan to remake the constitution in line with their Building Bridges Initiative (BBI). The key beneficiary of this latest development is Deputy President William Ruto who opposes the changes but has failed to win enough votes in parliament to stop them (AC Dispatches 28/04/2021 Parliament sets up roadblocks for Building Bridges law).

The proposed changes reintroduce the prime minister's post and creates two deputy prime minister posts; it also devolves more powers to the 47 counties, creates 70 more constituencies and, most contentiously, introduces a regulator to oversee the judiciary.

The BBI amendment bill sailed through the Senate on 11 May, with 51 senators backing it, 12 opposing and one abstaining (AC Vol 60 No 24 Building shaky bridges).

And then it hit a major snag two days later when the High Court ruled it 'unconstitutional, null and void'. It is the second grand clash between the judges and the Kenyatta government. The first was when the Supreme Court nullified the August 2017 general elections, creating the chain of events that led to a rapprochement between Kenyatta and Odinga, then the birth of the BBI (AC Vol 59 No 6, Raila beats rivals to a new deal).

'The constitutional amendment Bill is an initiative of the president and the law is clear that the president does not have the constitutional mandate to initiate any constitutional changes through popular initiative,' the judges said in a unanimous ruling delivered on the evening of 13 May.

The five justices also struck down the BBI bill's plan to create 70 new constituencies as invalid on the grounds that deciding on electoral boundaries is the sole function of the Independent Electoral and Boundaries Commission.

The ruling will not kill off the BBI project. Three years after the 'handshake' between President Kenyatta and Raila Odinga, the two principals have invested too much political capital in it (AC Vol 62 No 1 Handshake to face poll test).

But it does derail any plans for a referendum in July. Nor have BBI promoters seemed prepared to compromise on any of its recommendations. The National Assembly and Senate were not given leave to amend the bill, and were invited to 'take it or leave it'. The government says it will appeal the ruling but it's unclear on what grounds. More legal contestation is likely to reduce its room for manoeuvre.

The judges' ruling is great news for Kenyatta's estranged deputy, William Ruto, who was leading a 'sotto voce' fight against BBI. Any moves by Kenyatta and Odinga to bypass the court will strengthen Ruto's campaigning case that BBI is a project imposed by Kenya's political elites and designed solely to protect their interests.

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