Governors have proposed at least five radical amendments to the BBI report, joining the growing list of disgruntled parties pushing for a review of the document before a referendum.
The county chiefs’ demands raise the stakes that could send President Uhuru Kenyatta and ODM chief Raila Odinga back to the drawing board in their campaign to realise BBI.
If they chose, governors could block other issues – BBI’s recommended changes in the governance structure that the President and Raila are especially keen on.
Uhuru and Raila are to meet governors in a crucial two-day session at Enashipai Spa and Resort, Naivasha, starting on Monday.
The large meeting follows a smaller session with Raila last week when they failed to reach a deal on grey areas.
The county chiefs have raised new recommendations likely to turn the BBI process into a daunting chess game.
For instance, the county chiefs are demanding that the Building Bridges Initiative report be revised to give them a free hand to pick their deputies after general elections – instead of going to the ballot with a running mate.
They also want powers to hire and fire their deputies, as they do with members of County Executive Committees, given that BBI proposes DGs be given ministerial portfolios.
Governors also want removal of a proposal that they choose deputies of the opposite gender, meaning mostly women deputies.
The county chiefs are also pushing for strengthening the Senate as the Upper House to protect devolution, a radical recommendation that will rattle members of the powerful National Assembly.
On Sunday, CoG chairman Wycliffe Oparanya told the Star the Naivasha meeting will discuss how the BBI proposals can strengthen devolution.
The Kakamega governor said county bosses will be taken through the report by experts, focusing on how it impacts devolution. He said it will give them a clear understanding before making proposes to “enrich” it.
“As governors, our biggest focus now is mainly how to use the report to entrench and protect devolution, especially in matters to do with the flow of finances. The biggest challenge we have had as the devolution family has been irregular flow of funds from the National Treasury,” Oparanya said.
He said the county chiefs hope the President and Raila would live up to their promise to receive new recommendations.
“There are a number of issues we need to amend and the President has been clear there is room to improve the report. The former Prime Minister has also said that the BBI report is not cast in stone, so we shall put our heads together,” Oparanya told the Star.
Despite the CoG boss’s statements, both Uhuru and Raila are on record as saying the document is not open to amendment, though interpretation is possible.
The county bosses are also seeking to amend the BBI report to grant the Controller of Budget authority to approve funds in the absence of the County Revenue Allocation law. This demand stems from the revenue allocation standoff when counties were being ‘strangled’ without funds.
Governors are a key force in the referendum campaigns and their reservations could derail the process. At least 24 assemblies must approve a referendum bill.
In the governors’ demands list is also a proposal to anchor the Council of Governors’ secretariat in law by amending the Intergovernmental Relations Act.
Section 19 of the Act provides for the CoG but does not contain a provision for the CoG secretariat; governors see the BBI process as the avenue to legalise it.
Makueni Governor Kivutha Kibwana argues that while the BBI report contains great proposals with merit, the document needs to be enriched, to among other things, strengthen devolution through upgrading the Senate.
“A window needs to be opened for a national conversation on the state of the nation and the Constitution of Kenya (Amendment) Bill 2020. Constitution-making is usually accomplished through national consensus building,” Kbwana wrote in the Sunday Nation.
Nakuru Governor Lee Kinyanjui said they expect constitutional experts to take them through the BBI report as part of building consensus following divergent views by various groups.
He termed the document very critical for the future of the country but said they must not lose the opportunity to raise their recommendations to make it better.
“All governors converge in Naivasha today (Monday) so we can get a deeper insight into this document ahead of the planned referendum,” Kinyanjui said.
The Naivasha meeting will be attended by select members of county assemblies and senators in what analysts say is a strategy to rally the devolution family behind the BBI process.
The Star has established the BBI scretariat that was planning the event had asked participants to arrive in Naivasha by Sunday evening.
“Having listened to some of the issues that have emerged and been raised by various interested groups, the two principals (Uhuru and Raila) have decided to call a round-table meeting with you,” reads a letter sent to the CoG and dated November 5.
The meeting comes just a week after Uhuru and Raila rallied their troops for a two-day retreat at the Great Rift Valley Lodge in Naivasha. It was attended by more than 250 lawmakers from the two Houses of Parliament.
The President had argued that the document had already been subjected to extensive public participation and therefore, no one had the authority to change it. He said that would be tantamount to overturning the people’s views.
Uhuru last Wednesday met a section of political leaders, including ANC’s Musalia Mudavadi, Ford Kenya’s Moses Wetang’ula, Wiper’s Kalonzo Musyoka, Narc’s Charity Ngilu and CCM’s Alfred Mutua – as pressure mounted to change the document.
But Raila on Saturday dismissed calls to engage the groups with divergent views on the BBI report, saying some leaders were using blackmail instead of engaging objectively.
“In 2010, they told us the new Constitution had provisions which would legalise abortion, gay rights and that 20 per cent of the document needed polishing. Why are they now opposed to the BBI efforts to amend the country’s laws?” Raila said in Kitui during the burial of lawyer Nzamba Kitonga.
Various groups have expressed concerns about the report, including Persons Living with Disability, leaders from the pastoralist communities, women and a section of clergy.
It is not clear whether the BBI report would be amended.
The BBI proposals have triggered heated countrywide debate, with proponents openly clashing over various recommendations.
For instance, some senators allied to the BBI process have vigorously opposed proposals seeking to weaken the Senate’s oversight role of counties.
During last week’s meeting in Naivasha, Homa Bay Senator Moses Kajwang said that some sections of the report needed to be amended before the country went for a referendum.
“The relationship between Parliament and the Senate is not well defined in the BBI report and we need to address such issues before going to the referendum,” he said.
He called for the involvement of all leaders regardless of political affiliation, adding that before the country goes for a referendum the document would have to pass through Parliament.
“If we can agree to reason, we shall come up with an uncontested document which will unite the country and make it easy during the referendum,” he said.
Leaders from Mwingi, Kitui county, and Migori have warned they will reject the BBI report because it failed to create counties for them.
Kuria East MP Marwa Kitayama protested the Kuria community’s submissions to the BBI task force for an extra county were ignored.
“We have joined a caucus of other smaller and marginalised communities in Kenya like the Sabaot, Teso and Ilchamus to push our agenda. As for Kuria we are still demanding our own county, otherwise, we will reject the report,” Kitayama said.
Kitui Senator Enock Wambua demanded that Mwingi be granted county status, otherwise the BBI report would have a hard time getting approval.
“This document will be very hard to sell in Mwingi if the residents’ request for a county is not considered,” he said.
However, Homa Bay Woman Representative Gladys Wanga said the document will not be subjected to any further amendments.
“This document was taken through public participation where some people refused to go and raise their issues. It must now be considered closed so that we can move to the referendum,” she said.