The 2021 Kenyan constitutional referendum attempt was part of the Building Bridges Initiative (BBI), which aimed to amend Kenya’s 2010 Constitution. Proposed by President Uhuru Kenyatta and former Prime Minister Raila Odinga, the referendum sought significant changes in political, governance, and electoral systems. The aim was to address long-standing issues such as ethnic antagonism, divisive elections, and the winner-takes-all electoral system. However, the process faced significant legal challenges, leading to its eventual halt.
Background: Formation of the Building Bridges Initiative (BBI)
The Building Bridges Initiative was launched after the 2017 Kenyan general elections, following the election’s annulment and re-run. President Kenyatta and Odinga’s handshake in 2018 marked the beginning of a political reconciliation and the creation of the Presidential Taskforce on Building Bridges to Unity Advisory. The taskforce was tasked with finding solutions to challenges such as ethnic competition, divisive elections, and corruption. In October 2019, the taskforce’s findings were presented, leading to the introduction of the Constitutional Amendment Bill in November 2020.
The amendments proposed changes in several areas, including devolution, representation, the expansion of the executive, and the introduction of new political offices, such as a Prime Minister and Deputy Prime Ministers. After the bill was introduced in Parliament, a referendum was scheduled for June 2021.
The High Court Ruling: A Major Setback for BBI
On 13 May 2021, just weeks before the scheduled referendum, a five-judge panel of the High Court of Kenya ruled that the BBI amendment process was unconstitutional. The judges cited that President Kenyatta, who initiated the amendments, had overstepped his powers. According to the ruling, constitutional amendments could only be initiated by Parliament or a popular initiative led by citizens, not by the President.
This ruling halted the referendum and barred the Independent Electoral and Boundaries Commission (IEBC) from proceeding with the planned vote. The ruling sent shockwaves through the political landscape, especially considering the backing the BBI had from high-ranking political figures.
The Appeal: Kenya’s Legal Battle Over BBI
In response to the High Court’s decision, the Kenyan government and the Attorney General filed an appeal, requesting that the ruling be overturned. On 20 August 2021, the Court of Appeal upheld the High Court’s judgment, agreeing that the process violated the Constitution. The seven-judge panel stated that the BBI’s popular initiative mechanism could not be initiated by the President, further solidifying the BBI’s legal challenges.
In September 2021, the Attorney General filed a notice of appeal to challenge the ruling at the Supreme Court of Kenya. This led to further anticipation and debates about the future of the BBI amendments.
The Supreme Court Ruling: Final Blow to the BBI
On 31 March 2022, after a lengthy legal battle, the Supreme Court of Kenya delivered its final judgment, affirming the decisions of the lower courts. The Court ruled that the BBI Constitutional Amendment Bill of 2020 was unconstitutional. Key points of the ruling included:
- The President cannot initiate the popular initiative mechanism for constitutional amendments.
- There was insufficient public participation in the BBI process.
- The proposed expansion of Parliament and new district borders were deemed unconstitutional.
This marked the end of the BBI’s legal journey, confirming that Kenya’s Constitution had not been properly followed in the amendment process. The ruling was a significant political setback for President Kenyatta and Raila Odinga, who had championed the BBI reforms.
Impact on Kenya’s Political Landscape
The failure of the BBI referendum had far-reaching consequences, especially for President Kenyatta and Raila Odinga‘s political fortunes. The amendments were seen as a major attempt to consolidate political power within their alliance, but the legal hurdles damaged their credibility. Deputy President William Ruto, who was a vocal critic of the BBI, seized on the ruling as evidence of the government’s disregard for the Constitution and pledged to pursue a different approach to addressing Kenya’s political issues.
Criticisms of the BBI
The BBI’s proposed changes faced criticism from various quarters, especially from Deputy President William Ruto and his supporters. Key concerns included:
- The expansion of the executive, particularly the creation of the Prime Minister and additional deputy positions, which Ruto argued would concentrate power in the hands of a few.
- The BBI’s gender parity provisions, particularly its approach to women’s representation, which critics felt was more about tokenism than true gender equality.
- The lack of public participation, with many critics arguing that the BBI was a top-down initiative driven by political elites rather than a truly grassroots process.
Conclusion: The Future of Constitutional Reform in Kenya
The 2021 Kenyan constitutional referendum attempt revealed the deep political divisions within the country. While the BBI aimed to tackle long-standing issues such as ethnic tensions and divisive elections, the process failed to adhere to constitutional requirements, resulting in a legal defeat. The controversy surrounding the referendum, however, highlights the challenges of achieving constitutional reform in a polarized political environment.
Going forward, the challenge will be finding a path toward national unity and inclusivity without over-centralizing power. The lessons from the BBI process may prompt future efforts to address Kenya’s political issues in a more transparent, participatory, and constitutionally sound manner.
