Yes, law permits Parliament to modify BBI bill
Maurice Okumu
On 21st November, a bill to amend the Constitution of Kenya 2010 now referred to as The Constitution of Kenya (Amendment) Bill 2020 was published by the Government Printer in Nairobi.
Kenyans are already aware the bill is as a result of the work of the Building Bridges Initiative (BBI) taskforce. The bill is now in Parliament for debate, approval and/or enactment.
The joint committee of legal and constitution sub-committees of the Parliament — both the Senate and the National Assembly — have not agreed as to whether Parliament is allowed to make any changes to the bill.
Kenyans have been told in the press the said parliamentary committee has invited two legal experts to advise on whether or not the bill can be modified at that stage following some uncertainty between the two Houses.
Yes, Article 257 of the Constitution allows Parliament to alter the bill. These are my reasons:
First, the BBI is a popular initiative which was promoted by the effect of the Handshake between the President and former Prime Minister Raila Odinga.
The promoters, through the BBI, have ensured the steps under Article 257 of the Constitution — Amendment by popular initiative — have been upheld as follows: Ensured that initiative collected the one million voter signatures; Formulated a draft bill; The bill was delivered to IEBC; IEBC verified the million signatures; IEBC submitted draft bill to the 47 county Assemblies for deliberation within 90 days; and Speakers of more than 24 county Assemblies submitted approval on the bill to both Speakers of the National Assembly and the Senate through issuance of certificate of approval.
Upon receipt of the bill approved by the majority of county Assemblies, Parliament moved with speed to introduce the bill for debate process without delay.
However, the elephant in Parliament is whether or not it can alter the bill.
Article 257 (10) and (11) addresses the matter and grants Parliament the authority to modify the bill and proceed to referendum by the following acts:
Under Article 257 (10), if either the Senate or National Assembly fail to pass the bill and the bill relates to matter under Article 255 1(j) which refers to Amendment of the Constitution under 1(j) — the provision of this chapter and
Article 257 (ii) provides that where modification applies in the bill from Parliament, the proposed amendment must be approved by a referendum provided at least 20 per cent of registered voters in each of at least half of the counties vote in a referendum and amendment is supported by a simple majority of the citizen voters in the referendum.
Any other amendment which does not relate to amendment of the Constitution under Article 255 (1)(a-j) can be enacted by Parliament.
According to Oxford Advanced Learners Dictionary to modify means “to change slightly in order to make it more suitable for a particular purpose”.
Modifications in Parliament including the delimitations of constituencies under Second Schedule 1 (6) which addresses the take away of the duty from IEBC is covered upon passing of the bill at a referendum by the voter as provided under Article 257 of the Constitution.
I opine that the legal and constitutional affairs committee proceed to present their report for debate on the Constitution of Kenya (Amendment) Bill 2020 including their modification on the bill and even if one House fails to pass the bill, the same must be taken to the voters in a referendum for as the action is protected by the Constitution. — The writer is Advocate of High Court of Kenya — [email protected]
