Court Sinks Bid for Biggest Kenyan Politics Overhaul in a Decade

Kenyan President Uhuru Kenyatta’s ambitions of reshaping the nation’s political system as his final term draws to a close were dealt a body blow by a court ruling that he acted illegally in initiating the reforms.

The High Court’s declaration on Thursday may derail a planned referendum on sweeping proposals championed by Kenyatta and one-time foe and opposition leader Raila Odinga -- despite parliament overwhelmingly giving them the go-ahead. It could also undermine Kenyatta’s ability to influence who succeeds him after next year’s elections and raise the odds of the post going to Deputy President William Ruto, who fell out with his boss for criticizing the reforms.

Court Sinks Bid for Biggest Kenyan Politics Overhaul in a Decade

Kenyatta “is now seen as a president who has failed,” Lempaa Suyianka, a lawyer at the Katiba Institute, a Nairobi-based thinktank, said by phone. “I don’t see any light at the end of the tunnel for the referendum.”

A regional hub for global brands including Alphabet Inc. and Coca-Cola Co., Kenya has struggled to contain political and ethnic violence. A disputed result in 2007 triggered clashes that left more than 1,100 people dead. Kenyatta and Ruto were indicted by the International Criminal Court for their alleged roles in the bloodshed, but the cases were eventually dropped due to a lack of evidence.

Building Bridges

Kenyatta and Odinga said proposed constitution changes, the first in a decade, will end winner-takes-all elections and reduce political risk for investors in East Africa’s largest economy. In 2010, the nation amended its constitution and among the changes, introduced county governments and a second house of parliament.

Their so-called Building Bridges Initiative, or BBI, envisioned reintroducing the role of prime minister and two deputies, creating an official post for the main opposition leader and increasing the 47 counties’ share of the budget. Some of the plan’s critics warned it would result in a bloated government and add to a budget deficit that’s projected at 8.7% of gross domestic product in the year through June.

Court Sinks Bid for Biggest Kenyan Politics Overhaul in a Decade

Ruto, who’s complained of being sidelined by the ruling Jubilee Party and hinted he may break away to run for the top job, argued that the reforms wouldn’t necessarily make the government more inclusive and a proposed ombudsman for the judiciary would infringe on its independence. Some of his allies were more forthright, alleging that the main aim of the BBI was to diminish his odds of winning and set up Odinga for the role.

The High Court’s ruling mostly focused on the legality of the process followed in drafting the proposed constitutional amendments, and the nation’s solicitor-general said the government plans to appeal.

The ruling “confirms that the Kenyan judiciary has capacity to check on presidential and government excesses,” said Dismas Mokua, a Nairobi-based independent political analyst. “Kenyatta’s only saving grace is an upper court setting aside the High Court’s decision.”

“Wounded Lion”

Kenyatta has had several previous run-ins with the judiciary. In 2017, the Supreme Court ordered a rerun of presidential elections, upholding Odinga’s complaint that Kenyatta’s victory was tainted by rigging. And last year, the chief justice urged him to dissolve parliament because legislated gender quotas hadn’t been met -- advice he eschewed. The president has also stalled on filling dozens of vacant judicial posts, leading to backlogs in the legal system, and been criticized for cutting the judiciary’s funding.

Even if the legal and procedural hurdles can be overcome, support for the BBI is far from guaranteed. Just 29% of 1,550 respondents canvassed by Nairobi-based Tifa Research said they’d back the changes, a third said they’d oppose them and the balance were undecided or said they wouldn’t vote, a poll published in January showed.

The president will nonetheless want to ensure he is spared from legal repercussions after he retires, according to Mokua.

“Kenyatta’s political capital has suffered immensely, yet he is now a wounded lion,’ he said. “Kenyatta will go an extra mile to determine who becomes the next president as an insurance policy.”

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