BBI is our second chance at the elusive nationhood

The law of contract is one of the most comprehensive, guiding agreements in business and other aspects of daily living. A contract is an agreement between two or more parties and which must be legally valid and enforceable. The parties to the contract must have consented freely and voluntarily, and must possess the legal capacity to contract.

A contract is formed where there is an offer, acceptance, consideration and an intention to create a legal relationship. Offer indicates a willingness to enter into a contract whereas an invitation to treat lacks an intention to create legal obligations. Invitation to treat is an invitation to bargain and it often arises in pre-contractual negotiations, advertisements and store displays and an invitation to bid in the public procurement process.

Before making a definite offer, parties make a statement of intention, in the course of negotiation on the terms of the contract, which it is not intended to require acceptance. If one person invites the other to express his willingness to do or not to do something, it would be an invitation to treat since for an offer to stand the final expression of willingness to undertake a definite obligation, upon certain stipulated terms and conditions, by the other party’s notification of acceptance is required.

Whether a statement is an offer or an invitation to treat depends on the intention of the offerer. If the offerer indicates his willingness to be bound by it without any further negotiations, on acceptance, then it will amount to an offer. A shopkeeper’s catalogue or list price is only an invitation to intending customers to make an offer to buy at the indicated price and is not an offer. Advertisements in newspapers or any other media are invitations to treat which allows vendors to refuse to sell products at list price.

An invitation to treat may be an invitation to tender, a request for bids or proposals and expression of interest. The invitation to treat is simply a solicitation and does not qualify to be an offer as the party making it does not wish to enter into a legally binding contract without further negotiations. Any subsequent bids are deemed to be an offer which the party who issued the invitation may accept or reject.

The general rule is that an auction is a sale by public competition to a bidder who makes an offer to an auctioneer, an agent of the vendor who may accept or reject it. The contract is deemed to be concluded when the auctioneer signifies his assent by knocking down his hammer or in any other customary way.

The release of the Building Bridges Initiative (BBI) report in November last year has elicited diverse reactions from scholars, the general public and the political arena. Of course, the political class has gone into full campaign mode with each side seeking to promote what it considers serves their best interests.

BBI was the brainchild of President Uhuru Kenyatta and former Prime Minister Raila Odinga. It was conceived in March 2018 following the famous “Handshake” agreement between the two principals that ended months of post-election violence and tension. The 14-member team that was appointed to drive the initiative was tasked to look into nine areas that the two principals felt were crucial to the effort to “create a united nation for all Kenyans living today, and all future generations”.

The team collected the views of Kenyans from all walks of life, including special interest groups, in all 47 counties and came up with recommendations based on those views. The report is not a self-executing document and is subject to further debate by Kenyans with a view to building consensus. The mandate of the 14-member team has been renewed for this very purpose and the report is by no means an end in itself as many Kenyans have been led to believe. As the name itself suggests, it is an “initiative”.

Democracy is about entertaining different views and agreeing on those that serve the desires of the majority. We are unlikely to ever agree on every issue but we should look for a give and take solution on both sides.

The BBI report is a unique milestone which gives Kenyans an opportunity to sit at the same table regardless of tribe, political affiliation, religion or personal interest to begin to heal our nation. It is the beginning of a long journey and we must not allow politicians and other self-serving cartels to hijack the process yet again.

I have often likened BBI to the Behaviour Change Communication (BCC) process which seeks to move people and communities along a path of being unaware, concerned, knowledgeable, motivated to change, practicing trial behaviour and eventually sustained behaviour change.

The BBI report is indeed an invitation to treat but it requires to be steered by leaders who can find the courage and sincere disposition to put the common good above their personal gain, and the people before their personal ambitions.

The cynics will remind me of the TJRC Report, the Ndungu Report, the Kriegler Report and others that have so far not been implemented but I posit that we are at a watershed moment just like we were 60 years ago at the Lancaster House Conference and we have to debate and agree on the Kenya we want in the next 60 years. We need to create a sense of nationhood and agree on the values that define who we are as Kenyans; our ethos. We must not squander this opportunity.