Showdown looms as MPs debate BBI Bill

Kenya's Parliament chambers in Nairobi on April 16, 2013. [REUTERS/Noor Khamis]

Showdown looms in Parliament today as MPs debate the Constitution of Kenya (Amendment) Bill, 2020.

Yesterday, ODM party whipped members to support the Bill, popularly known as Building Bridges Initiative (BBI) Bill, following claims that two camps led by Siaya Senator James Orengo and lawyer Paul Mwangi had emerged.

The National Assembly and Senate are expected to concurrently table the Bill even as claims emerge that Deputy President William Ruto could have infiltrated the Joint Committee on Justice and Legal Affairs (JLAC) and influenced members to poke holes in the Bill.

Allegations that some county assemblies passed an erroneous version of the Bill resulted in the committee coming up with two reports, majority and minority, with Murang’a Senator Irungu Kang’ata abstaining.

“My position on BBI debate tomorrow (today): First, many friends that have died because of Covid-19 and many businesses closed due pandemic. Vaccines first! Sh15 billion referendum cash enough for vaccines. Secondly, correct injustice visited upon Mt Kenya on constituencies distribution. Why Nyeri none and Kwale four,” said Kang’ata.

Allies of President Uhuru Kenyatta, DP Ruto and ODM leader Raila Odinga Raila are reportedly divided, setting the stage for an emotive debate today.

The fracture began from JLAC committee over the report released by co-chairs, Okong’o Omogeni and Muturi Kigano, with a section supporting a majority report, while another led by Nairobi Senator Johnson Sakaja with the minority.

The majority have backed the approval of the Bill, raising a red flag on the thorny issue of the proposed 70 new constituencies, the cross-referencing of Article 87(7) instead of 89 (7) and the Schedule Two, on the anchoring the the table, which they argue is unconstitutional.

However, Senator Sakaja and Samburu West MP Naisula Leisuda opposed reopening of the document, arguing that Kenyans appended their signatures to support the Bill and therefore Parliament has no role in the matter.

Yesterday, ODM chair and Minority Leader John Mbadi whipped members in the National Assembly and Senators to vote for the Bill.

“This is therefore a rallying call to our members to align themselves accordingly with the party position. It is also an appeal to our members and supporters out there to prepare to vote for the Bill once it is presented to them in the referendum,” said Mbadi.

Senators Orengo and Omogeni and Rarieda MP Otiende Amollo have been vocal about illegality of suspending provisions of article 89(4) of the Constitution which states that “if a General Election is to be held within twelve months after the completion of a review by the Commission, the new boundaries shall not take effect for purposes of that election.”

The suspended article thus allows the proposed 70 new constituencies proposed by the BBI to apply in the 2022 elections, which is considered unconstitutional.

Mumias West MP Benjamin Washiali, a Ruto ally, said a showdown is expected in the Houses but much of that would be for the cameras given that Parliament’s role was ceremonial.

“Our role there is minimal, we are just there to rubber stamp the process before it goes to the people, the Bill requires a simple majority to pass. The best thing is to let the people decide. So the MPs will argue issues but it will be for the media,” said Washiali.

He said the biggest problem was why Kenyans should be subjected to referendum campaigns amid the Covid-19 pandemic.

“We should expect a surge after the referendum campaigns, it is unfortunate that we are headed there while we have examples of India whose numbers rose because of crowds,” said Washiali.

But Nominated MP Godfrey Osotsi said there would be no showdown but a robust debate on the role of Parliament in passing the popular initiative.

Elected representatives

He differed with those claiming Parliament had no role and insisted that the Constitution in Articles 1, 94 (1), 94 (5) and 257 allows the House to review the popular initiative. He argued that there is no where in the world where Parliament is a bystander in Constitution making.

Article 1 states that; (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution; (2) The people may exercise their sovereign power either directly or through their democratically elected representatives.

Osotsi said Parliament was therefore in order to review the process, citing Article 94(5) which states that nobody or individual had the legislative role of making laws that can be enforcible in Kenya apart from Parliament.

“If you put this together with Article 257 which provides that Parliament in the referendum process will pass the popular initiative Bill as opposed to the county assemblies which were being asked to just approve. if you read all this articles you will know that Parliament is not a bystander,” he said.

“Much as I am a supporter of the BBI process, we cannot as Parliament pass a faulty document which the courts will easily throw away. Those saying Parliament is a rubber-stamp don’t support the BBI and are keen to see it rejected by the Judiciary.”

An ODM MP who sought anonymity noted that the JLAC report flagged the inconsistencies in the clauses to be changed that were in the Bill passed by 32 county assembles.

“We have noted that clause 61, that sets out the composition of Salaries and Remuneration Commission (SRC) as nomination from commissions of Parliament, Public Service Commission and Judiciary and Cotu, and by extension the executive as members. However in the changes identified, the president will have sweeping powers to appoint the entire membership, this will claw back the gains made in the Constitution,” said the MP.

He noted in clause 43 that anyone who lodges a complaint against a judge, the JSC will have power to suspend, warn or fire the said officer based on the mere allegations. “What happened to the security of tenure and requirement for fair hearing?” he posed.

Others that have been flagged, the MP said, were clauses 66 and 67 of the Bill that take the powers vested in the National Police Service Commission to transfer, promote and discipline officers and the Inspector General of Police single-handedly nominated by the President and approved by Parliament.

The MP said the commission has in the past tried to address the issues of the police welfare including the arbitrary transfer and victimisation by their voices and the new reintroduction dampened the situation.

Again, Clause 26 seeks to amend Article 138 on the nomination of Deputy President where if the running mate dies before election, the election is suspended, but now if the running mate dies, the election proceeds and the winner picks his DP.

A member of JLAC said: “We as members of the committee have noticed a number of alterations errors and misscross-referencing but as lawyers were duty bound to inform the promoters of the legal hurdles.”

He said there report has captured all the issues but the recommendation was still to approve the report because the role of Parliament is ceremonial.

“We have flagged the issues which are undesirable and unconstitutional, they are incoherent with the supreme law for instance the scheduling of the proposed 70 constituencies which seeks to usurp the powers of the IEBC as stipulate in article 89.”

Kieni MP Kanini Kega rubbished calls to amend the Bill from the counties. “Nobody will alter even a comma. Anybody trying to bring any amendment will fail,” he said.