BBI bombshell as different versions, typos now emerge

President Uhuru Kenyatta and Former Prime Minister Raila Odinga look at their signatures during the launch of the collection of signatures for the Building Bridges Initiative (BBI) at KICC in Nairobi on November 25, 2020. [Stafford Ondego, Standard]

The BBI Bill passed by 13 out of the 47 county assemblies had anomalies. There are also claims that the versions of the Bill at the National Assembly and Senate have discrepancies as well.

This emerged as MPs engaged in a push and pull on whether to amend or not the Constitution of Kenya (Amendment) Bill 2020.

The BBI process is also facing court cases, allegations of doctored documents and Bills, underhand dealings and opposition from across the political divide.

These revelations cast doubt on the process birthed in 2018 after the Handshake between President Uhuru Kenyatta and ODM leader Raila Odinga.

The joint parliamentary Justice and Legal Affairs Committee (JLAC) on Tuesday deliberated on six typos, how to execute them – whether in the Bill or in the velum sent to the president for assent – and the constitutionality of the schedule.

"With an illegal schedule exempting the Independent Electoral and Boundaries Commission (IEBC) from conducting elections in the new constituencies in the next elections, the commission will be bound by the same. Experts say it could be legal once it has been subjected to a vote. This is a big concern among the committee members," said a legislator aware of the deliberations at Windsor Hotel.

He said the meeting's concerns arose on Article 89(4) of the Constitution, which states: "If a General Election is to be held within 12 months after the completion of a review of electoral units by the Commission, the new boundaries shall not take effect for purposes of that election."

Worse still, MPs are now confronted with the reality that the Bill before them has been altered numerous times during its three stages and therefore the one passed by the county assemblies could have been "fake".

Former Building Bridges Initiative (BBI) task force joint secretary Paul Mwangi has pointed an accusing finger at a group of people he believes are keen on derailing the process.

"There was no room for altering the Bill after the signatures were collected against it. if indeed the contents of the Bill were altered before it was handed to Parliament it means that the electoral body that communicated to the 47 assemblies and the communication back from the speakers is where the damage could have happened," said Mwangi.

He called on the Directorate of Criminal Investigations (DCI) to probe allegations of the altering of the Bill sent to the county assemblies, terming it "treasonable".

"DCI should jump in and unravel what happened between the IEBC's communication to the assemblies, the debates and the communication to Parliament from the 47 county assembly speakers. Someone was involved in criminality and they should be outed," said Mwangi.

He said the role of Parliament is to consider and approve or reject as provided for in Article 257 of the Constitution, dismissing the MPs' assertions that their role cannot be merely ceremonial.

Mwangi, who is Raila's advisor on legal matters, has been faulted for pushing for the passage of the document in its entirety without any changes, a move opposed by Siaya Senator James Orengo and Ruaraka MP TJ Kajwang.

Committee member Jenipher Shamalla faulted her colleagues for revealing the deliberations before they conclude writing the report.

"The joint chairs Okong'o Omogeni and Muturi Kigano are the ones authorised to speak. They will make their communications in due time," said Shamalla, refuting any claims of disagreements.

County Assemblies Forum (CAF) Chairman David Kiplagat said the allegations that the county assemblies could have altered the Bill was farfetched.

"We received hard copies and that is what we tabled. We noted a few errors in the Bill but still went ahead to pass it, given that our role was clear – either pass or reject the document. But there was poor workmanship in the writing of the Bill," said Kiplagat, who is the Uasin Gishu speaker.

The confusion on the contents of the Bill has thrown a spanner in the works as the joint JLAC members take hard-line positions.

Yesterday, efforts to reach IEBC Chairman Wafula Chebukati and BBI Secretariat co-chair Dennis Waweru were futile as they did not answer calls or reply to text messages.

The other secretariat's co-chair, Junet Mohamed, said allegations that the Bill passed by 13 county assemblies had anomalies were fake news, propaganda and innuendos that needed to be disregarded.

"BBI secretariat submitted a proper Bill to the IEBC, which was later presented to the the county assemblies. Any other claims are innuendos," said Junet.

He said the joint committee would complete the process today and table the Bill in Parliament next week.

"We have serious differences in the committee, we are not going to open the Bill for any amendment in Parliament. We will pass it as it is," said Junet.

One side has vowed to push for the opening of the Bill for review within the bicameral Parliament, while another sided with the recommendation of legal experts – Prof Patricia Mbote and Collins Odote – who have asked the committee to vote for the Bill without amending it.

"There is also the fear that any amendment on the Bill might not garner the requisite numbers in the National Assembly, although in the Senate it could easily pass," said another MP at the meeting.

Senator Orengo has been the face of those pushing for the review of the Bill, insisting that the role of Parliament was to legislate, even as there are murmurs from Raila's camp that they got a raw deal in the allocation of the proposed 70 new constituencies.

"The work of Parliament is to legislate and there is nothing that stops the Houses from making amendments to the Bill," said Orengo.

National Assembly Minority Leader John Mbadi accused the committee of derailing the constitutional amendment process.

Mbadi said the committee is trying to amend the Bill, despite being aware of Article 257 of the Constitution that stops any such amendment.

"The National Assembly’s role in the constitutional change is ceremonial. What the committee should have done is just compile a report to this House for future reference. There is no way that this House is going to change even a comma in the proposed Bill,” he said.

“I am surprised that they can make such a request when they know the provisions of the Constitution. Article 257 was put there to stop people who want to derail any Kenyan who wants to amend the constitution,” said Mbadi.

Mwangi said the "saboteurs" were keen to ensure the BBI does not get to its logical conclusion.