Why Nadco is headed the BBI way

The National Dialogue Committee (Nadco) report could be heading the Building Bridges Initiative (BBI) way if the ruling by the High Court barring the Parliament from forwarding the Constitution of Kenya (Amendment) Bill, 2025, to President William Ruto for assent is anything to go by.

Some of the bills recommended by the Nadco report include the National Government Constituency Development Bill, the Senate Oversight Fund (SOF), the National Government Affirmative Action Fund (NGAAF), the office of the leader of opposition, and the office of the Prime Minister.

On Thursday, a High Court issued a conservatory order preventing the forwarding of the bill to the President, reflecting the legal hurdles that the BBI suffered in 2018.

“Pending the hearing and determination of this petition, a conservatory order is hereby issued forbidding and or preventing the forwarding of the Constitution of Kenya Amendment Bill 2025 to the President for assent, and if assented to, the same shall not take effect until the instant petition is heard and determined,” Justice Lawrence Mugambi ordered.

Those opposed to the Bill, like the Katiba institute, argued that the MPs ought to have enacted legislation to govern referendums, as opposed to rushing to amend the Constitution, a move that the court muddied the process and undermined public confidence in constitutional change.

“All organs of State, including Parliament and the President, must remain within the constitutional confines when interpreting and/or implementing the Constitution,” Katiba argues in its petition.

Both the Nadco and BBI reports were initiated by politicians in the government and the Opposition, and  ODM leader Raila Odinga was at the centre of the initiatives.

The two initiatives also propose almost the same recommendations. Like the Nadco, BBI, which was championed by Raila and former President Uhuru Kenyatta, also proposed the introduction of the position of Prime Minister to 'cure the country's winner-takes-all syndrome'.

The BBI report also proposed to create 70 Constituencies to address the issue of over-representation, as well as entrenching the NGCDF fund into the Constitution.

However, while declaring the BBI report null and void, the Supreme Court maintained that the President could not initiate a Constitutional amendment through a popular initiative, saying it was a preserve of the common man.

“The President holds the power to decide whether a referendum will be held. There will be a conflict of interest if he were to initiate an amendment of the constitution through popular initiative; he is not like any other Kenyan citizen,” the Supreme Court ruled.

According to legal scholars and political analysts, the Nadco could head the BBI bill, as the very reason that saw the BBI declared unconstitutional had occurred with the introduction of the Nadco bill, followed by a five-member committee to oversee the implementation of the 10-point agenda negotiated between President Ruto and Raila.

 According to Dr Njoki Wamae, Assistant Professor in politics and international relations at United States International University-Africa (USIU), the reports mediated through the political class meant to amend the Constitution are not usually consultative and do not reflect the wishes of the people, a move she attributed to the Judiciary’s decision to declare them illegal.

“The reports are what Prof Mushtaq Khan referred to as political settlements, which are from the elites to accommodate their aspirations and trying to use the judicial and legal means, such as Parliament, to validate their interests, but they are not based on people's wishes. Until we go back to the people so that the documents can be made for the people, the current situation of courts dismissing the reports will keep on recurring,” she said.

On his part, Art Ndegwa N, a Constitutional lawyer, noted that the reports have no place in ‘our new constitutional transition’ as they are meant to address a political question and they are done without strict adherence to the Constitution.

“The BBI came up with the intention to amend the constitution, but the process was purely left to the politicians. However, now, with the new constitutional dispensation, politicians have no field day in determining whether or not to amend our constitution. Reason being, our constitution has created very serious checks and balances, with the judiciary being at the epitome of it all, that is meant to guard our democracy,’ Njiru said.

He added, “If it were through the 1963 constitution, where the judiciary was playing a very big role, then such amendments would have seen the light of day. But now, with our new constitutional dispensation, it has created serious checks and balances, with the judiciary taking the biggest portion of it.

He said if the reports were geared towards achieving an equilibrium with the constitution, or if it was in sync with our constitution, and if it followed the constitution to the letter, then most often than not, the High Court would have no role to play.

“But if the reports are meant to contravene the provision of the constitution, they are meant to contravene our constitution, then you realise that most often than not, the courts will come out to defend our constitution,” he said.

 Another analyst, Lawi Sulta, noted that the Nadco report, just like the BBI report, was not citizen-driven, noting that the BBI was struck down for its Executive-led nature, lack of transparency, and failure to respect institutional mandates.

“The MoU signed between the United Democratic Alliance (UDA) and the Orange Democratic Movement (ODM) on March 7, 2025, presents an initiative riddled with flaws, tainted by partisan interests, and poised to repeat the constitutional missteps that derailed the Building Bridges Initiative (BBI). The UDA-ODM committee mirrors these errors. President Ruto’s signature on the MoU and statement, alongside Odinga’s, raises immediate red flags. The Supreme Court’s ruling explicitly prohibits executive initiation of popular initiatives,” Sultan notes.

 Kakamega Senator Bonny Khalwale has also raised concerns about some of the proposals in the Nadco report, which he likenedtoh those of the BBI report, like the proposal to establish the office of the Prime Minister.

“There are certain aspects of the constitution that you can’t amend; they are called essential clauses. When we come to vote, I will vote against the expansion of the executive since I don’t get the benefits of the executive. We want decisions that translate to return on investment. If we have a Prime Minister with two deputies and a President with a Deputy, how will it improve the lives of people of Kenya rather than just strengthening the ego of the big men in Kenya to share positions,” he said.