All eyes will be on Justices Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott. The seven will either uphold or quash the High Court ruling which declared the BBI project null and void on Thursday, May 13.
Dr Masibo Lumala, a political analyst, specialist and consultant in Gender, Communication and Development explained different scenarios on how the Court of Appeal ruling will affect the 2022 General Election and President Uhuru Kenyattaâ€™s succession race.
Dr Masibo opined that the ruling may uphold some clauses and dismiss others. If this happens, either the junior courtâ€™s ruling is dismissed declaring the BBI as valid or it is supported thus BBI remains null and void.
Declaring the BBI as valid will create another scenario whereby its proponents – led by handshake partners Uhuru and Orange Democratic Movement leader Raila Odinga – would want to push for its enactment. However, the time frame effect would arise.
â€œWe have less than one year to the General Election and I do not think the BBI would be enforced within that period, considering that a referendum cannot be held one year to the election. It will also be expensive to hold the two in a short time frame.
â€œThe likely scenario is that Uhuru Raila and One Kenya Alliance (OKA) are likely to compel the Parliament to postpone the election so that BBI provisions are looked into. This is why OKA deferred a decision to support Raila when they met Uhuru in Mombasa,â€ the visiting professor at Pu University in Indiana state, USA, stated.
OKA co-principals are Musalia Mudavadi (ANC), Gideon Moi (Kanu), Musalia Mudavadi (ANC), Moses Wetangula (Ford-Kenya) and Kalonzo Musyoka (Wiper).
Another scenario for pushing the election would be litigation filed at the Supreme Court, challenging the Court of Appealâ€™s decision to overturn the High Court ruling. The Supreme Court, under Chief Justice Martha Karambu Koome, would take up quite some time to deliberate on the matter and issue a conclusive ruling.
Dr Masibo, a Senior Lecturer at Moi University, added that Parliament already had a precedence that could be used to postpone the 2022 General Election.
In 2012, the High Court pushed the General Election from August 2012 to March 2013, declaring that the then parliament had to serve its full five-year term, which was to end on January 14, 2013, and the elections to be held 60 days later.
â€œAny further delay to the BBI process works to the advantage of the MPS, especially if they decide that they are going to postpone the elections. This will be the only way to resuscitate BBI, by creating enough time to change the constitution and to hold a referendum.
â€œPoliticians would also want to stay longer and make more money,â€ he argued.
OKA versus Raila and Ruto
Dr Masibo who also serves as the Chairperson of the African Tourism Board, Tourism Research and Development Committee in Kenya, noted that the BBI ruling would significantly shape the coalitions prior to the General Election.
He argued that BBI being declared valid would push Deputy President to oppose the referendum, having cheered and celebrated the High Court ruling which nullified the BBI.
Ruto will be pushed to oppose the BBI as the Court of Appeal ruling will put him in a very awkward position. He will have to spend a lot of money as an individual campaigner against team OKA, Raila and Uhuru who would put their resources together.
â€œOKA would push for BBI to have room for negotiation owing to the extra positions created by the project,â€ Dr Masibo detailed.
However, if the Court of Appeal upholds that BBI is null and void, OKA may denounce Raila and opt to choose their own flag bearer. This would create a three-horse race; Ruto, Raila and OKA. Mt Kenya would play a critical role among the three as all candidates would battle to have a deputy from the region to bolster their chances of succeeding Uhuru.
Despite Ruto making inroads in Mt Kenya, the rise of the 3 MKs – Martha Karua (Narc-Kenya leader) Moses Kuria (Gatundu South MP), and Mwangi Kiunjuri (The Service Party leader) has taken the DP back to the drawing board and made Central Kenya an open battle.
Mukhisa Kituyi Effect
Former United Nations Conference on Trade and Development (UNCTAD) Secretary-General, Mukhisa Kituyi is considered an underdog by many. However, he would hugely influence OKAâ€™s chances of winning.
Why? Dr Masibo explained that OKA settling on Mudavadi while Kituyi is in the race to succeed Uhuru would split the Western Kenya votes. Settling on Mudavadi as a deputy to either Kalonzo or Gideon may see Kituyi garner the majority of Western Kenya votes.
â€œSo in essence, we are still far from knowing exactly how things will turn out. But the ruling will give us a hint of the direction politicians will take. Let us watch the statements that would be made after the ruling,â€ Dr Masibo noted.
He believed that the judges will be independent, moved by the law and base ruling on the arguments put before them.
â€œI want to imagine that the judgment will be above board and that the judgment will not be based on pressure from the Chief Justice the Executive. If there was any pressure at all, it would have happened at the High Court.
â€œIf the high court had the freedom to make the ruling as they did, I trust the Court of Appeal will enjoy the same and will not make this ruling in their own self-interest,â€ the communication expert stated.