Press Statement: On the Court of Appeal BBI Judgment

Press Statement: On the Court of Appeal BBI Judgment

The verdict is out.


The judges of the Court of Appeal, yesterday, in black and white, pronounced themselves on the initiative that was brought forth by the handshake partners in an attempt to birth political stability in our otherwise beautiful country. In their judgement, the judges were categorical that the attempt by His Excellency President Uhuru Kenyatta and Former Prime Minister Raila Odinga to amend the constitution was unconstitutional and an illegality.


Now, I don’t want to go into the details of the judgement for that is not my forte. But at this point let me state that as a respecter of the law and our courts I abide by this decision. However, I would like to voice my views on the judgement, generally, considering many Kenyans and indeed members of the International Community associate me with the BBI: Maybe only second to the President and the Former Prime Minister.


As a matter of fact, COTU (K) prides itself in being the proponent of the BBI considering I, during the 2017 International Labour Day Celebrations asked Kenyans to rethink amending the constitution so as to achieve political stability. I was, without doubt, the first leader that came out publicly and called for constitutional change. In that speech, that I delivered at Uhuru park, I was fierce and categorical that Kenyans needed to amend the 2010 constitution to give way to peace, unity and development.  


Of importance is that this was not the first time that trade unionists were voicing themselves on serious political issues as the history of this country, is, without doubt, the history of trade unionists. It is unthinkable and incomplete to discuss the history of this country, especially the struggle for independence, without discussing the role played by trade unionists such as Tom Mboya, Clement Lubembe, Fred Kubai, Makhan Singh, Ochola Mak’Anyengo, Dennis Akumu, Aggrey Minya among others.


But some ask, ignorantly, “why would a trade unionist concern himself with politics?” Simple. As trade unionists, we are so passionate about politics because it is politics that determines everything. It is politics that determines who gets what, when, and how. Therefore, the role of politics in the development of the country and especially of the workers cannot be downplayed. It is politics that determines the development of workers. It’s politics that determines if a country has political stability and therefore economic growth, meaning more jobs and better salaries. Everything boils down to politics. In fact, in some countries, trade unions form, or legally belong to and support, a given political party. A good example of this is the long-standing Labour Party in the United Kingdom.


Therefore, the BBI was something close to my heart not only because I am a unionist who must be present to the political realities but also because I love my country. I for one strongly believed that BBI would have brought forth peace and inspired economic growth. I, like many Kenyans, abhor violence and especially the form of violence brought about as a result of bad politics. As I have also said previously, and much more why I hold the view that the constitution of Kenya 2010 MUST be relooked is the perpetual violence as a result of election contestation.


Since the introduction of multi-party democracy in 1992, elections in Kenya have been a cut-throat affair save for the election of 2002 which, understandably, was propelled by the deep desire for a united Kenya. Kenyans have fought in 1992, 1997, 2007, 2013 and 2017. And sadly, also explaining why this is close to my heart, is the fact that those who suffer the most are workers, women and children.


I am among those Kenyans with very dark and traumatizing memories of the 2007/2008 post-election violence. This explains why I speak passionately about the subject matter. Around 2007, a shop steward from the Kenya Plantation and Agricultural Workers Union (KPAWU), where I am the general secretary, was beheaded in one of the flower farms in Naivasha while still on a phone call with me. This was, and still is, traumatizing. It is not something I would like, or wish anyone, to go through.

And this explains why to me, and indeed, like many Kenyans, the BBI was somewhat a panacea.

As a proponent of the BBI, I would also like to state categorically that the BBI was simply and squarely about two fundamental things. Dealing with the challenge of Winner-takes-all and inclusivity.

Ironically, and focusing on the first point on winner takes all, on the 8th of February 2019, the Deputy President while delivering a keynote speech in London at Chatham acknowledged the fact that even though the 2010 constitution had birthed political and economic change in the country, Kenyans in their numbers still had serious concern on, what he termed as, the fundamental normative architecture of the constitution.

And true to his observation, the DP went further and took great issue with how the constitution structured the executive and dealt with the opposition. He argued that “the current formulation undermines the executive accountability and saddles our democracy with a headless, incoherent and dysfunctional opposition.  The constitution neither recognizes nor creates the functions of the official opposition. It is not proper that the leader of a party gathering the second highest votes has no formal constitutional role”. And to deal with the challenge of winner takes it all, the DP observed that the constitution should be changed to introduce a position of official opposition leader in the National Assembly.

It was therefore with great bemusement when I saw the same man who called for the creation of the office of opposition leader admonish the same proposal as contained in the BBI. But this, in fact, shouldn’t be that shocking considering the men and women who opposed the 2010 constitution have since turned to be the “greatest admirers” of the same.   

Secondly, the BBI was to deal with inclusivity. This was out of the honest observation that Kenya is a highly tribal society and elections are much or less a tribal contestation. To affirm this observation is the overbearing reality that Kenyans have always desired a Parliamntary system of government. “Wanjiku”, in nearly all engagements that have taken place in regards to constitutional review, has always stated the need to have a Prime Minister to run government and a President to run the affairs of the state. That we have a presidential system right now, you would agree with me, was a usurpation of “ Wanjiku’s” power during the Naivasha talks.

And this is is what I believed in, and what I equally believe, Kenyans have always wanted. This is also simply to say that the BBI was never about 2022. Indeed, when I called for the BBI in 2017 we were yet to conduct the 2017 elections. But I, as an elder, has forestalled.  

Finally, with the above observations, let me remind Kenyans that ANY administration that comes in office following the coming election will make constitutional review their first order of business especially after realizing how polarized the country will be with the current constitutional dispensation. This country is hurting. And we must fix our politics. The lie making rounds that our problem is the economy is just that. A big lie.

Our problem is bad politics and to fix it we must do readjustments to our constitution to cater for the abovementioned proposals. If we are unable to deal with politics, we won’t deal with the cancer of corruption and tribalism.





Dr. Francis Atwoli, NOM (DZA), CBS, EBS, MBS


Jacqueline Kamau

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