2021 Kenyan constitutional referendum attempt


The Building Bridges Initiative was a proposed set of amendments to the Constitution of Kenya initially proposed in October 2019. In the wake of the 2017 general election annulment and subsequent re-run, incumbent President Uhuru Kenyatta mandated the formation of the Presidential Taskforce on Building Bridges to Unity Advisory on 31 May 2018. The Taskforce was assigned to provide constitutional and legislative solutions in 9 broad categories:
  1. Lack of National Ethos
  2. Ethnic Antagonism and Competition
  3. Responsibilities and Rights
  4. Shared Prosperity
  5. Divisive Elections
  6. Safety and Security
  7. Devolution
  8. Corruption
  9. Inclusivity
In October 2019, the Taskforce published their findings, which were incorporated into the Constitutional Amendment Bill, introduced in November 2020. The initiative consisted of 78 amendments, spanning 13 of the Constitution's 18 chapters. After the Bill passed, a Constitutional referendum was scheduled to occur in Kenya in June 2021, per the Kenyan Constitution.
The referendum, which was approved by 30 of the 47 county assemblies, was halted on 13 May 2021, by a five-judge panel of the High Court of Kenya. In its decision, the court stated that the process by which the referendum was formed was unconstitutional and barred the Independent Electoral and Boundaries Commission from proceeding with the referendum. In response to this, the Attorney General of Kenya and the Kenyan government filed an appeal of the court's decision, asking that the ruling be overturned.
On 20 August 2021, a seven-judge panel from Kenya's Court of Appeal upheld the High Court's ruling that the BBI process was unconstitutional.
In September 2021, Kenya's Attorney General's Office filed a notice of appeal announcing that it will challenge the Court of Appeal's ruling, taking the case to Kenya's Supreme Court.
On 31 March 2022, the Supreme Court of Kenya upheld the rulings of the lower courts, ruling that "The Constitution Amendment Bill of 2020 is unconstitutional," because President Kenyatta initiated the amendments through his creation of the Presidential Taskforce on Building Bridges to Unity Advisory, and vocal endorsement of the legislation crafted based on their findings.

Background

Since Kenya held its first multi-party elections in 1992, subsequent elections have all been extremely competitive. Widespread ethnic tension and political violence characterized the aftermath of both the 2007 and 2013 general elections, the latter of which saw incumbent President Uhuru Kenyatta elected for the first time. In the face of such destabilizing, political, ethnically-motivated violence, a subsequent constitutional crisis produced a grand coalition government and a new Constitution in 2010, as well as a protracted process in the International Criminal Court which saw Uhuru Kenyatta and his future Deputy President William Ruto accused of crimes against humanity. Despite these charges, both Kenyatta and Ruto continued to serve as President and Deputy President respectively, and seek election together in 2017. While there was less overall political violence through the course of the 2017 general election campaign, an attack on the home of William Ruto, and the murder of Christopher Msando of the Independent Electoral and Boundaries Commission, garnered international attention.

2017 aftermath, annulment, and re-run

Though international missions from the African Union, Carter Center, East African Community, and European Union all praised the election as free and fair, opposition leader and presidential candidate of the National Super Alliance, Raila Odinga, suggested that the Independent Electoral and Boundaries Commission had been hacked, and that vote totals had been tampered with. Odinga then went on to challenge the electoral results, appealing to the Supreme Court of Kenya. Representatives of both Odinga's National Super Alliance and President Kenyatta's Jubilee Party were allowed to audit the IEBC's official results. After three days of deliberation, the Supreme Court ruled in favor of annulling the election, and a new Presidential election was scheduled for 17 October. A week before the re-run, former Prime Minister Odinga announced he was withdrawing from the election, citing a lack of "legal and constitutional guarantees" against another allegedly fraudulent result. President Kenyatta was re-elected with 98.3% of the popular vote and was sworn in on 28 November 2017. At least 92 civilians died in instances of election-related violence throughout the campaign period.

Reconciliation and "The Handshake"

Faced with a continuing political crisis in the wake of the 2017 election, negotiations began between President Kenyatta and former Prime Minister Odinga to end their longstanding rivalry. On 9 March 2018, the two men were photographed symbolically shaking hands. During the event, former Prime Minister Odinga declared, "The rift that has existed since independence now comes to an end with this act." President Kenyatta echoed his former rival: "We have come to a common understanding. An understanding that this country Kenya is greater than any one individual." This new alliance fundamentally reshaped and realigned Kenyan politics. Constituent parties in both the Jubilee and NASA coalitions who supported the alliance between Kenyatta and Odinga formed the Azimio la Umoja coalition, while those who did not, including the incumbent Deputy President William Ruto, formed their own pact: the Kenya Kwanza Coalition. Of the 416 members of the Parliament of Kenya in both houses, over 180 members have changed their party affiliation from 2017. While the exact terms of President Kenyatta and former Prime Minister Odinga's agreement have not been published, both men agreed on a program of Constitutional reform which would facilitate their power-sharing, which later became the Building Bridges Initiative.

Amendment process

Following "the Handshake" on 9 March, the original Building Bridges Initiative task force was announced, and on 31 May 2018, President Kenyatta officially decreed the creation of the Presidential Taskforce on Building Bridges to Unity Advisory, and the appointment of its 14 Members and 2 Secretaries. Both President Kenyatta and former Prime Minister Odinga claimed that the chief goal of the BBI task force was to address the problems inherent in Kenya's "winner-take-all" electoral system. The Taskforce carried out a large-scale research mission, spending 18 months meeting with citizens in all of Kenya's 47 counties, totaling more than 7,000 citizens. Over 400 elected leaders at the National and County level were consulted, as well as 123 "individuals representing major institutions, including constitutional bodies and major stakeholders in the public and private sectors."
After the Presidential Taskforce's findings were released to the public, the final draft of the amendment proposals was presented to Parliament on 25 November 2020 as the Constitutional Amendment Bill of 2020.

Amending the Constitution

The 2010 Kenyan Constitution contains two provisions for amendment, one by "parliamentary initiative," and one by "popular initiative." To amend the Constitution by parliamentary initiative, an amendment bill must be introduced in either House of the Kenyan Parliament and must pass both chambers with 2/3rds supermajority support. Then, the Speakers of the two Houses of Parliament jointly submit the Bill for the President's signature. However, according to Article 255 of the Constitution, a national referendum to approve the changes must be called after the President signs the bill if its amendments relate to any of the following:
"
"
Should this referendum pass with a simple majority of votes, and as long as "at least of in each of at least half of the counties vote in the referendum," then the Constitution is amended.
However, the legislation crafted out of the Building Bridges Initiative called for an "amendment by popular initiative," by which an amendment to the Constitution can be proposed by a popular petition with at least 1 million signatures of registered voters. The petition is then evaluated by the IEBC, which submits the bill containing the proposed amendments to each of the 47 county assemblies for approval within three months. If passed with simple majority support from over 50% of the county assemblies, the Bill then goes to parliament, where it requires only simple majority support to then be signed by the President. If the Bill fails to clear the 50% support threshold in either House of Parliament, the Bill is again voted on in a national referendum, requiring the same 20% of registered voter turnout in at least half the counties, and a simple majority of votes.

Kenyatta and the popular initiative

While the BBI Constitutional Amendment Bill was originally brought before parliament in 2020, President Uhuru Kenyatta ultimately decided to change tactics, and the BBI Secretariat, began a signature collection drive, which reached the requisite 1,000,000 registered voter threshold, as 1.33 million signatures were verified by the IEBC on 22 January 2021. By 23 February 2021, 30 of the 47 county assemblies had approved the BBI referendum, surpassing the minimum threshold of 24 counties to trigger a national referendum. By the time of the High Court ruling on the BBI in May 2021, 42 county assemblies had approved the BBI referendum. The Nandi and Elgeyo Marakwet assemblies voted no, while the Baringo county assembly decision had been vetoed by a local court, and two counties had not held votes. Members of the National Assembly then overwhelmingly passed the BBI Constitutional Amendment Bill, voting 224–63 in favor, with two abstentions.