When President Uhuru Kenyatta’s controversial bid to enlarge Kenya’s executive was rejected by the High Court in May, it was a major boost for one of the president’s former allies turned leading rival. William Ruto, Kenya’s deputy president, has been vehemently opposed to the Constitution of Kenya Amendment Bill 2020, popularly known as the Building Bridges Initiative (BBI).
That boost has now been reinforced by the Court of Appeal’s ratification of the verdict. The Bill was “unconstitutional and an usurpation of the people’s exercise of sovereign power”, said Judge Daniel Musinga, one of a seven-judge bench that rejected the president’s appeal against the High Court judgement on 20 August.
The constitutional amendment was first suggested by the president in the aftermath of the disputed 2017 election. It sought to bring back the post of prime minister, introduce 70 new constituencies and create up to 300 new unelected members of parliament.
Supporters of BBI, who include Kenya’s long-running opposition leader Raila Odinga, argue that it will make Kenya’s divisive ethnic-led politics more inclusive. But critics say that it is merely a way for Kenyatta to continue to exert power by maintaining influence over the executive even after he is due to step down in 2022.
To date, the president has been plagued by a succession crisis in which he is yet to back a certain candidate. Many believe that he wishes to continue Kenya’s dynastic politics, where power is kept among the elite families that came to the fore during the country’s formative years of independence. Uhuru Kenyatta is the son of independence leader Jomo Kenyatta, who went on to serve as prime minister and the country’s first president.
Ruto, on the other hand, has been sidelined from Kenyatta’s election plans and the ruling Jubilee Party, of which he is a member. The former chicken trader, who relates to working class Kenyans by calling himself the head of the “hustler nation”, has drummed up immense popularity as an anti-establishment figure who can rock the boat.
The rejection of BBI by the courts has strengthened Ruto’s hand and put him on a path to convincingly contest the election in August 2022.
“The [May] BBI ruling gives Ruto a substantial boost and leaves him as a clear political frontrunner,” says Meron Elias, Horn of Africa researcher at Crisis Group.
However, Kenyatta’s plan to reshape the executive is not yet dead in the water. Although the Court of Appeal has not found in favour of the Kenyan president, he is still able to appeal to the Supreme Court.
The initial decision by Kenya’s High Court to reject the bill was praised as another sign of an independent judiciary. In 2017, the Supreme Court overturned a disputed election in which Kenyatta beat Odinga, marking the first time an election had been overturned by a court in Africa. Kenyatta subsequently triumphed in a re-run boycotted by the opposition.
The Supreme Court decision was led by Kenya’s former chief justice, David Maraga, who built a reputation for thwarting the executive. His departure in January after serving a five-year term led to concerns that the Supreme Court may no longer maintain such a distance from the executive – a factor which could be important in the next election.
Kenyatta has repeatedly delayed the appointment of 40 judges to various courts, refusing to appoint six who were recommended by the Judicial Service Commission. Maraga has suggested in local media that Kenyatta has refused to appoint two of the judges because they formed part of the five-judge bench that ruled against BBI.
Regardless of BBI’s status in the courts, experts say that the initial ruling could well have stymied the bill’s proposal to hold a referendum on constitutional amendments before the next election.
“Given the necessity of the appeal mechanisms that are there in place with the Court of Appeal and the Supreme Court it is likely to take much more time and so the possibility of having a referendum before next August would be a bit of a challenge,” said lawyer Javas Bigambo after the High Court gave its decision in May.
“At present it may be necessary for Kenyatta to start thinking about alternative paths to manage his succession.”
Road to elections
As has been the case in previous elections, political analysts are expecting politicians to jump ship amid a flurry of realignments and the creation of new parties in the run-up to the election. A common complaint by the Kenyan electorate is that parties are created and destroyed to usher personalities into power, rather than to set out any long-term economic or ideological goals.
The biggest question for Kenyatta is who he will back as his successor. There is currently no leading candidate from the Mount Kenya region, which is home to Kenyatta’s own ethnicity – the Kikuyu – and the closely linked Meru. However, it is not guaranteed that the president’s successor will be a Kikuyu. Other possible candidates include Musalia Mudavadi and Kalonzo Musyoka. Political insiders say that the Kenyatta family is not sure who they want as a candidate, because they are all backing different people.
Another unknown is whether Kenyatta will back former foe Odinga, who has been making strong suggestions in the media that he will contest the presidency for the fifth time. The former adversaries only came together to push BBI and it is unclear what remains of the partnership that was made famous by a handshake in 2018 after years of animosity.
One thing that most observers agree on is that a rapprochement between Ruto and Kenyatta is unlikely. The deputy president is expected to split from the ruling Jubilee Party and join the United Democratic Alliance (UDA) to contest the presidency, observers say.
“The rift within the Jubilee Party is so big that it cannot be healed within the next six months,” says Bigambo.