New hurdle for BBI as MPs demand more say in review

IEBC Chair Wafula Chebukati when he appeared before the joint sitting of National Assembly and Senate Legal committee on Justice and legal affairs on the submissions on the Kenya Constitution of Kenya (Amendment) Bill 2020 at the Senate chambers, Parliament buildings, Nairobi [Elvis Ogina,Standard]

The push to change the constitution has run into new headwinds after MPs demanded to be allowed to make amendments to certain proposals. 

A joint legal committee of the two Houses, which is populated by allies of President Uhuru Kenyatta and ODM leader Raila Odinga, is said to be pushing for parliamentary changes to the BBI Bill. 

This came after a sustained purge on Deputy President William Ruto’s supporters in Jubilee.

Although the Constitution states that Parliament has a ceremonial role in a popular initiative, the lawmakers have stalled the tabling of a report by the joint parliamentary committee on the Building Bridges Initiative (BBI) until some contentious issues are addressed.

The lawmakers are said to be pushing to have a latitude to make changes to the Constitution of Kenya (Amendment) Bill, 2020 BBI Bill, especially on the distribution of the 70 new constituencies and creation of the office of the Ombudsman.

The Independent Electoral and Boundaries Commission (IEBC) had, last week, declared the distribution of the additional constituencies illegal.

IEBC chairman Wafula Chebukati said delimitation of constituency boundaries could only be done by the commission. The commission said it would require two years to carry out the demarcation. But according to the BBI schedule, IEBC will have six months to have the additional areas once the amendments are passed at the referendum.

The latest hurdle feeds into the recent political storm pitting President Uhuru Kenyatta and ODM leader Raila Odinga's inner circles over alleged scheme to sabotage the process by some senior civil servants. ODM allies have singled out Interior Principal Secretary Karanja Kibicho as a stumbling block to the process.

The joint team of the Senate Committee on Justice, Legal Affairs and Human Rights and National Assembly’s Justice and the Legal Affairs Committee (JLAIC) was scheduled to table a report on public participation today for the second reading.

Yesterday a member of the committee said there was a feeling by the team that MPs could not be reduced to a conveyer belt.

“We are not ready yet. We thought we needed to take some time to do a good report so that issues raised during public participation can have answers,” said the senator.

“Members have said that public participation cannot be cosmetic. What did the Committee of Experts on Constitutional Review (CoE) intend to be the role of Parliament in their discussions so we can answer both the stakeholders and MPs?” posed the member.

He added: “The issue that Parliament is ceremonial is a matter we have to address. It would be a matter on the floor. We have recalled the hansard of the CoE to help us in our deliberations.”

Justice and Legal Affairs Committee Chairman Kigano Muturi during a press conference at Parliament, Nairobi on Tuesday, March 9, 2021 [David Njaaga,Standard]

The joint team’s co-chairman Muturi Kigano (Kangema) admitted that there were weighty issues raised by the members as well as stakeholders, who appeared before the committee.

He said the delayed tabling of the report was informed by the need to go through all the issues raised.

Mr Kigano said MPs would have the opportunity to raise their concerns on the floor of the House when the report is finally tabled for debate.

“The report will be in the House so they can debate. People should also understand that this is a popular initiative and it has gone through the county assemblies. We will look at all the issues raised,” said Kigano.

The co-chair described the matter as very sensitive. He said they had agreed that members should not make public comments on it until the issues are ironed out at the committee level.

Sources also said ODM was also seeking to exploit the storm to push changes to some amendments reportedly included in the final report without Raila's knowledge.

His Luo Nyanza backyard has been uneasy, especially on the creation of 70 new constituencies, where Kisumu, Siaya, Homa Bay and Migori counties got only three constituencies.

“ODM is opposed to some changes,” disclosed another MP.

Yesterday, The Standard established that the committee was yet to retreat to write its report, which was scheduled to be tabled in both Houses today. They are now seeking to engage members of the defunct CoE to review its records on deliberation of Article 257 and know which jurisdiction it was borrow from and how it should be implemented.

“The role of Parliament cannot just be ceremonial. We want to know the purpose of this Article from the drafters of the Constitution, especially when it talks about a draft Bill in the county assemblies and a Bill before Parliament,” said another MP in the committee.

“What did the members of CoE have in mind? The chairpersons of this committee are seeking guidance on the same and whether we can amend the proposed law at this stage,” said the source.

National Assembly JLAC vice chairman and Rarieda MP Otiende Amollo was a member of the CoE alongside Supreme Court judge Njoki Ndung'u, Thirdway Allaince Party leader Ekuru Aukot, constitutional expert Bob Mkangi, lawyer Atsango Chesoni and the late Nzamba Kitonga.

When contacted, Senator Okong’o Omogeni, who is also Senate JLAC chair, yesterday said the joint team would be seeking more time to analyse views collected from stakeholders who appeared before it.

“We will not be able to table a report tomorrow (today) because we are still analysing the views received during the public participation. We will be seeking for more time tomorrow,” said Mr Omogeni.

In a previous interview, Homa Bay Senator Moses Kajwang' said the Bill could be amended in Parliament. National Assembly Majority Leader Amos Kimunya and Constitution Implement Oversight Committee chair Jeremiah Kioni, however, ruled out any changes. They insisted that making changes to the document would require a fresh signature collection.

“The issue of the 70 constituencies is contentious and, as a committee, we are looking at ways to address the issues raised by the IEBC,” said another member of the committee.