The Good,the Bad and the ugly of BBI, what voting Yes or No Means.

The constitution of Kenya 2010 was to advance 12 key principles and values

  1. Sovereignty of the people and supremacy of the constitution
  2. Equality -gender, regional
  3. Rule of law, constitutionalism, secularism, no state religion
  4. Separation of powers and strong Checks and balances
  5. Democracy, Human rights and freedoms
  6. Independence of institutions especially the Judiciary, Police,
    Commissions and independent offices
  7. Integrity: accountability and transparency
  8. Cohesion, inclusivity, unity
  9. Devolution and sharing of powers and resources
  10. Participation and representation- free and credible election,
    civilian oversight over security agencies
  11. Justice, equity, Affirmative Action- gender, tax, social
  12. Security of the people from all threats and from tyranny

The BBI Amendments Bill 2020:

The Good
 Regional integration as a principle
 Responsibilities of citizen is added at 11 A
 Article 31 – securing personal data from
 Future nominations to Assemblies will not be based on the seats a party has in the Assembly but the total votes a partyreceives in an election.
This is positive;
 The Leader of Official Opposition office has been restored (Art 107 A)
 The speaker of the House originating the Bill shall forward the Bill to the President; this is good for Senate;
 Days for Presidential Petition in the
Supreme Court increased from 14 to 30
days which is great ( Article 140 (2)..
Rigging shall become harder because
evidence gathering has been given more
 35% revenue share to the counties
minimum is now up from 15%
 Note that the GOOD in BBI did not need
a referendum;

The Bad
 Fighting corruption and impunity not focused on;
– Article 99 (3) not deleted as requested.
Chapter 6 remains dead unless this sub-article is deleted;
 Economy and shared prosperity being added to the constitution is totally unfortunate.
 The youth commission in the constitution is a bad idea; Commissions need to be reviewed and reduced- what value is CAJ to governance in Kenya for example?
 The CDF and Ward Development in the
constitution is a very bad inclusion;
 Women are NET losers- their seats have been moved to Senate whereas the National Assembly shall be the main House of power and authority even where Ministers can be appointed from;
 Coffee, tea, pastoralism, blue economy is not a constitutional issue; this is a policy issue supposed to be in party manifestos; what Pastoralists do not see is that the 1 man 1shilling, one vote has already been entrenched through CDF and the 70 constituencies shall be on the basis of population;

The Ugly
1) The new 70 Constituencies is a bad idea; population is not the core for representation but interests – the 1 man 1 vote 1 Shilling policy has been entrenched and it is a basis for injustice and breaking bridges;
2) National Assembly MPS shall increase from 349 to a possible 420 or 430; Senate shall be up to 94; the current total of NA Senate is 416.. The new total could be as high as 530- this is 115 additional MPs; this is bad and will hurt the country badly;
more MPs to a parliament with less oversight clout is a total

3) A Prime Minister appointed by the president is more power to the President; this is not power sharing at all. The MP can
be from the Opposition; the Proposal was to have a Presidential ticket of 5 so that actual power sharing is through the electorate;
4) Cabinet Ministers from Parliament with Assistant ministers will render Parliament totally ineffective in Oversighting the Executive; What the Church asked for was very different; a ticket of 5 within a presidential system;
5) Ministers and Deputy Ministers will not be vetted or approved by Parliament; who benefits from this ministers not being vetted?
6) MCAs can become CECs in the County
Government- further weakening oversight at the Counties;
7) The Judiciary Ombudsman appointed by the President will be a prefect (172A); this will hurt the independence of the judges- independent minded judges will be targeted with vendetta.
8) More power to the Inspector General of the Police to promote, transfer and even sack police officers is a serious recipe for chaos and rights violations; What problem is being solved, Who asked for it? This power must remain with the NPSC not an individual. The Problem we curing has been reinstated.
9) A transitional clause making it clear that the current President shall not be eligible to vie for the president under the new system of government is lacking. The system of government these amendments create is a parliamentary system of government- this poses a real danger.
10) The process of the BBI amendment has been controlled by a few who want to open up our Katiba but are unwilling to open up their Bill for negotiation; this is using unconstitutional means to amend our constitution; there is a shadowy cabal
doing amendments to the Bill at the instructions of Uhuru and Raila, which is an affront to democracy and our constitution

What Patriotic Kenyans Should do
going forward

Carry out sustained Civic education to point out the good, the bad and the Ugly in the BBI Amendment Bill.

Persist with the need for Bill undergoing further amendments through a negotiated process convened as a National Constitutional Conference.

Question the use of a popular initiative Process by the government instead of a parliamentary route;

Monitor the referendum, not just observing it; rigging can be massive in a referendum;

let the people know the consequences of a Yes vote and a NO vote;

Focus the country on holding credible elections in 2022 so that a more responsive government is formed.

What a ‘YES’ vote means
 It means Endorsing the bad, the good and the ugly together;
 Allowing for further unconstitutional and authoritarian rule because seven principles have been dealt a blow/weakened significantly;
 Separation of powers blurred with ministers from parliament, independence of institutions ( the Police and the Judiciary threatened), skewed representation to hurt
marginalized areas, favor 1 man/1 vote/1 Shilling policy re-launching the Session Paper No. 10 of 1965; checks and balances weakened further, inclusivity not addressed, gender equity addressed cynically, prudence in PFM ignored ( MPs increased to a possible 540)
 This was never the BBI agenda, but it is what the amendment will lead to- an imperial presidency, a police state, with an increased Mzigo;

What does voting NO mean
 It means that We shall retain our constitution as it is, which is a great constitution that needs leaders who
can implement it faithfully;
 The BBI Amendments offends 8 of the 12 Principles that underpin our constitution. The amendment fails all the four 4 tests of legitimate constitution review;
 NO means that the focus shall turn to implementing the BBI Policy, legislative and administrative reforms which are about 70% of the BBI report; the Constitution amendments are about
 It means that we shall create the need for a process that only brings improvements to the constitution not consolidating power in the hands of politicians;
Democracy shall have carried the day.

Facilitator Notes by Cyprian Nyamwamu

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