Key issues in BBI Bill amendment controversy

By Hillary Mageka
Thursday, March 25th, 2021
Senate Leader of Minority James Orengo with Nasa senators address the media in Nairobi yesterday. Photo/PD/SAMUEL KARIUKI
In summary
    • Members of the committee are seeking the opinion of experts on whether Parliament is required to undertake public participation on the Bill and the extent of the participation.
    • Nyamira Senator Okong’o O’Mogeni, who also co-chairs the committee, says the Constitution allows Parliament to carry out public participation on Bills.

Hillary Mageka @hillarymageka

Can Parliament amend the Building Bridges Initiative (BBI) Bill in the same manner as an ordinary Bill and if so, to what extent?

Were county assemblies required to undertake public participation on the BBI draft Bill?

These are among key issues the joint Senate and National Assembly Committee on Justice and Legal Affairs is grappling with as it prepares to table the Constitution of Kenya (Amendment) Bill 2020 before Parliament.

Members of the committee are seeking the opinion of experts on whether Parliament is required to undertake public participation on the Bill and the extent of the participation.

Multiple questions

“It was not put in the Constitution in vain that there must be public participation.

In our case, what we are going to do is not just give a report, we must give reasons why we should take these questions to the referendum, why we cannot split the issues and why we cannot have multiple questions,” Kangema MP Muturi Kigano, who co-chairs the committee, told People Daily.

Nyamira Senator Okong’o O’Mogeni, who also co-chairs the committee, added that the Constitution obligates Parliament to carry out public participation on Bills, a matter which has been affirmed by the Supreme Court.

O’Mogeni explained that the public hearings undertaken by the committee had raised serious constitutional issues, which had forced the team to invite legal experts to advise it on the way forward.

“Any process we do in Parliament can be subjected to a judicial review by the High Court; we must do things in line with the Constitution so that should anybody go to court, we will argue that we have followed all principles and values in the Constitution,” said the senator.

Electoral units

According to a document seen by People Daily, creation of an additional 70 constituencies and their distribution among 28 counties is among issues to be scrutinised.

The lawmakers also want to establish whether public participation was undertaken on the distribution of the new electoral units among counties and which data was relied on in the delimitation of the new units.

Also in contention are the names of the 70 constituencies and the role of the Independent Electoral and Boundaries and Electoral Commission (IEBC) in the creation of the constituencies.

“We want to establish whether it is only IEBC that can do delimitation of constituency boundaries or whether the mandate of delimitation can be done under Article 89(4) now that there is another provision ousting the mandate of IEBC,” Kigano said.

O’Mogeni stated that when IEBC chairman Wafula Chebukati appeared before the joint committee, he concurred that the BBI process could propose to increase constituencies from 290 to 360 but it cannot allocate those constituencies to counties.

“They (IEBC) said Kenyans under Article 1 can propose to increase constituencies but where they should be situated is the work of IEBC.

As senators, when such issues are brought to us, we must retreat and debate; remember IEBC is not just any other thing you pick on the streets, it is a constitutional body,” he explained.

He added that the Kenya National Bureau of Statistics (KNBS) had also told the committee that some counties were left in the allocation of the proposed constituencies.

Senate Minority Leader James Orengo, while dismissing claims of divisions in the joint committee, maintained that Parliament will not be used as a voting machine.

He suggested that the BBI Bill may be opened to amendments to incorporate views received from the public.

“Nobody should think that the National Assembly and the Senate are mere debating clubs,” said Orengo.

He maintained that there exists an established precedent that allows Parliament to open up the BBI Bill for further amendments.

Public participation

“If you listened to public participation during this process, individual Kenyans came and addressed Parliament on issues they thought were critical.

It has come to a situation where we should remember that whatever we say and do, it is in the name of the people and we must take that very seriously,” Orengo said.

“You cannot have a provision in the Constitution where Parliament is required to conduct business or a transaction for ceremonial purposes,” he held.

Another area of concern is the implication of the proposed new constituencies, as set out in the Bill, on Nairobi City County given its high population.

The implication of the various court cases that have been filed against the BBI project and the Bill is also a subject of discussion.

Committee members also want expert opinion on whether they can distill the issues in the Bill so that some are sorted out by Parliament as others proceed to a referendum.

The committee is also seeking clarity on the appointment of the Judiciary ombudsman as an ex-official member of the Judiciary Service Commission (JSC) and whether he or she can vote on matters before JSC.

The MPs will also seek to establish whether persons appointed as ministers should be vetted by Parliament prior to their appointment by the President.

“We also want to know whether all issues in the Bill should go to a referendum. These are some of the issues to be visited and covered by the committee,” said Kigano.

The joint committee thus resolved that there was need to engage experts in constitutional, legal, procedural and governance matters to advise on the issues arising in the thematic areas identified.

Kigano (Kangema), O’mogeni, Otiende Amollo (Rarieda), Jennifer Shamalla (Nominated) Naomi Waqo (Nominated) and Orengo are members of the joint committee.

“The terms of reference will be identifying experts who are well versed in the process with wide experience in constitutional governance, legal and procedural matters to be procured to provide consultancy services on the matters before the committee,” O’Mogeni said as he moved the motion seeking extension at the Senate on Tuesday.

The committee has this week scheduled a meeting with members of defunct Committee of Experts (CoE) that came up with the 2010 Constitution to advise them on Articles 255, 256 and 257.

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