High stakes as lawmakers brace for debate on BBI
Hillary Mageka @hillarymageka
Stage has been set for a showdown in Parliament next week between lawmakers supporting amendments to the Constitution of Kenya (Amendment) Bill 2020, (also known as Building Bridges Initiative -BBI) and those opposed to any changes.
The anxiety comesafter Kangema MP Muturi Kigano, who co-chairs the joint committee that is scrutinising the Bill, said his team had made a breakthrough in all major and contested issues and was set to table the document in Parliament next week for debate.
“I am happy to report to the country that we have made tremendous progress after securing consensus on major contested issues,” Kigano told People Daily by phone.
“We are retreating next week (Monday and Tuesday) to compile a report ahead of its tabling at a Special Sitting the following day,” he added, without divulging details.
In a separate interview, National Assembly Minority Leader John Mbadi said the joint committee on Justice and Legal Affairs is expected to conclude its report on the BBI Bill by Tuesday next week.
“We have actually discussed this matter with my colleague-National Assembly Majority Leader Amos Kimunya- we are thinking of calling for Special Sittings on Wednesday and Thursday,” Mbadi divulged yesterday.
He added: “We hope they will finish their work and present the report to the two Houses because we are in a rush to recover lost time.”
Mbadi and the co-chair of the BBI Secretariat Junet Mohamed (Suna East), have maintained that Parliament has no role to play on the document.
Special sitting
But legislators pushing for amendments including Siaya Senator James Orengo and MPs Aden Duale (Garissa Township), Olago Aluoch (Kisumu West), Jared Okelo (Nyando) and Peter Kaluma (Homa Bay Town) insisted they would move amendments to the document.
“Anything that is brought to Parliament is for legislative purposes and MPs have a responsibility to interrogate, debate and enrich it. We shall deal with the document when it is tabled,” Duale said yesterday.
Kimunya said he was ready to petition Speaker Justin Muturi for a special sitting once the joint committee’s report is ready.
“I will call for a special sitting for Wednesday and Thursday,” Kimunya said.
The Leader of Majority in the Senate Samuel Poghisio said the House will call for a special sitting after consultation.
“Our process will begin when the report is tabled,” Poghisio said in a text message.
Speaking last month, Nyamira Senator Okong’o Omogeni, who co-chairs the Legal Affairs committee with Kigano, said Parliament must stamp its authority on the BBI document bearing in mind that it is the first time the two Houses are processing a Bill to amend the Constitution through a popular initiative. He said Parliament must open the Bill and incorporate public views.
“We owe it to the public and the future generations... this matter should be given due consideration and where necessary get assistance from experts,” the senator said.
Last week, Muturi said the House will reconvene as soon as the Legal Affairs Committee is ready to table its report. He said the Bill was to be presented on April 1 but had to wait after the House adjourned in line with measures to contain Covid-19.
“I have not received any request for a special sitting. Standing Orders are clear, it is the Leader of the Minority or Majority who may request the Speaker, for reasons to be stated. If the Speaker is satisfied with the reasons advanced, necessitate the calling of a special sitting,” said Muturi, when he received a delegation of 20 MCAs led from Tharaka Nithi County Assembly.
Yesterday, it emerged that top legal consultants hired by the joint committee had cautioned Parliament against amending the BBI Bill as doing so would attract court challenges.
Popular initiative
The experts have, however, faulted the forces behind BBI over the proposal to create 70 additional constituencies without involving the Independent Electoral and Boundaries Commission (IEBC).
Even though the experts warned the MPs against making amendments, a group of lawmakers agitating for changes vowed to push on with their efforts, paving the way for a major political duel in the two Houses.
In a report exclusively obtained by People Daily, Prof Patricia Kameri-Mbote and Dr Collins Odote, the duo picked by the committee to advise them on the role of Parliament and other sticky issues in the Bill, state that altering the BBI Bill would offend Article 257 of the Constitution.
“The Bill is the product of a popular initiative as stipulated in Article 257 of the Constitution that leads to a process of referendum. To avoid any litigation Parliament should consider it as it is,” excerpts of the document read.
“Any amendments to the Bill will defeat the purpose of a popular initiative because Parliament cannot usurp powers of the people and try to seek an amendment of the BBI Bill,” the consultants state.
Initially, senators had insisted that Parliament’s role in the constitutional amendment cannot be ceremonial and pushed for reopening of the Bill against the wishes of their counterparts in the National Assembly, sparking a standoff.
By at least one million registered voters appending their signatures and an overwhelming number of County Assemblies approving the document, the advisers held that Parliament should only debate the Bill and allow it to go to a referendum.
However, the legal experts were of the view that the Bill being a legislative proposal, Parliament was right in taking its time to hold public participation, interrogating and coming up with various proposals as raised during the public hearings.
“Ideally, Parliament is supposed to enrich the Bill but this being the first of its kind, the august House has no such powers, it’s just ceremonial,” the report further states.
The committee of experts has, however, thrown a spanner in the works by siding with IEBC on the duration it would take to create the proposed 70 new constituencies. According to the experts, delimitation of new electoral units will take at least 12 months.
The BBI Bill states that the constituencies should be created six months after the adoption of the BBI document but the IEBC says time is too short, citing previous boundary reviews that took as long as two years.
IEBC cites the need for public hearings, preparation of reports, dispute resolution, and fresh voter registration in the new constituencies, at a time the agency will be preparing for the 2022 General Election.
The committee has also indicted the BBI team for purporting to create the additional constituencies and going ahead to allocate them to specific counties without the input of the electoral body.
Citing Articles 84(4) (c) and 89 of the Constitution, the consultants said the exercise of allocating the constituencies to counties is the preserve of the electoral commission.
Meanwhile, Mbadi is confident that the country will still hold a referendum in June despite the legal hurdles and challenges occasioned by the Covid-19 pandemic.
“I think the biggest hurdle for BBI is the cases that are in court. If those cases can be dispensed with quickly enough I don’t think there is anything that would stop a referendum from being held in June,” he told Citizen TV’s NewsNight programme.
