Sabotage or flawed process? The BBI Bill ping-pong is on

Senate Speaker Kenneth Lusaka (right) receiving BBI documents from Isiolo County Assembly Speaker Hussein Halake Roba on Thursday at his office in Parliament Buildings. [Courtesy]

Who is playing ping-pong with President Uhuru Kenyatta and ODM party leader Raila Odinga’s referendum drive?

The confusion about the correct version of the Building Bridges Initiative (BBI) Constitution of Kenya (amendment) Bill, 2020 has now sucked in promoters of the first amendment to the Constitution, the electoral body, the county assemblies and Parliament.

The Standard has reliably learnt that the Joint Parliamentary Committee on Justice and Legal Affairs (JLAC) is in a dilemma after they discovered fundamental errors that cannot be overlooked.

A good example is the issue of reference of non-existent Articles in the Bill that was passed by county assemblies. For instance, some versions of the Bill have Article 87, others 88 instead of 89 of the Constitution on delimitation on electoral boundaries.

Another example is Article 188 on voting by delegation in the Senate, which has been referenced as 189 of the Constitution. The Article seeks to have female and male senators proposed in the amendments have equal voting rights as opposed to the current situation where voting is per delegation on issues touching on counties.

“There are gaps and flaws in the cross-references, with some non-existent. They cannot have them addressed administratively as they change the meaning and text of the Bill. It is not about typos and grammar,” said an MP, who is a JLAC member.

He added: “If the errors were consistent from inception, it would not be a problem; but it is about different versions with different issues. If the errors are in more than one Bill, then there is an issue.”

Nyamira and Tana River counties had issues with the Bills they submitted to National Assembly and Senate Speakers Justin Muturi and Ken Lusaka, respectively. The problem was a technicality at the county level.

Counties are reported to have received hard copies from the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati, begging the question of whether the errors were from the Government Printer or were introduced at the county assemblies level.

“The promoters of the BBI Bill will have to deal with it without any change. The popular initiative does not provide room to effect any changes. The MPs cannot amend, change or alter the contents of the Bill,” said an MP aware of the challenges.

The Standard learnt that the joint committee is also dealing with two versions of the Bill before both Houses.

BBI promoters

Yesterday, IEBC said it had on December 10, 2020 received from BBI promoters, led by the Secretariat’s co-chairs Dennis Waweru and Junet Mohamed, six printed copies of the draft Bill and supporters’ details.

“In compliance with Article 257(4) of the Constitution of Kenya, the commission undertook verification exercise and ascertained that the one million supporters threshold had been met. On January 26, 2021, the commission requested the BBI promoters for additional printed copies of the Bill for onward transmission to the county assemblies. On the same date, the promoters delivered to the commission 57 printed copies of the Bill, out of which the commission submitted 47 to the county assemblies,” Chebukati said.

Yesterday, Tharaka Nithi Senator Kithure Kindiki said promoters of the Bill could encounter turbulence given that the National Assembly and Senate, which are supposed to run the process concurrently, had different versions which could be irredeemably faulty for the exercise.

Prof Kindiki said the BBI process has been led with mischief from the beginning and the current conversation on whether or not to amend its contents was misplaced.

“The political mischief is meant to achieve certain things and I will not be surprised if some funny clauses are sneaked in,” said Kindiki.

ODM Political Affairs Secretary Opiyo Wandayi said the enemies of the BBI and by extension, the Handshake had found useful allies in the joint parliamentary committee.

“They have teamed up to derail the BBI and eventually scuttle the Handshake. That’s why they are throwing a spanner in the works at every turn. They must not be allowed to succeed in their plans,” he cautioned.

Yesterday, the now-defunct BBI task force joint secretary Paul Mwangi said the responsibility to correct grammatical and typographical mistakes in law lies with the Attorney General.

County assemblies

“Let that not worry Parliament regarding the BBI Bill. Just say Aye or Nay,” he said.

He added: “Chebukati says he gave the BBI Bill to the Speakers in all 47 county assemblies and a copy to the Speakers of the Senate and the National Assembly. Yet some people want the country to believe that the two Speakers have a different version of the Bill.”

After it emerged that 13 county assemblies considered the BBI Bill to be with anomalies, Mwangi said on Wednesday that anyone who could have involved himself in sabotaging the process, which he described as “treasonable”, should be investigated.

He said it was not possible that there were more copies in circulation as claimed but noted that if that be the case, it would be prudent to have the Director of Directorate of Criminal Investigations look into the matter.

But an MP at the JLAC said: “Some of the promoters are likely to push through with the errors and this would result in a defective process that the courts would most likely shoot down.”