Eighteen out of the 27 members of the joint parliamentary Justice and Legal Affairs Committee (JLAC) penned their signature on the majority report of the Constitution of Kenya (Amendment Bill) 2020.
They were led by the respective JLAC co-chairs Kangema MP Muturi Kigano and Nyamira Senator Okong’o Omogeni.
MPs who did not sign the report include Junet Mohamed (Suna East), Olago Aluoch, Peter Kaluma (Homa Bay Town), Roselinda Tuya (Narok), Japheth Mutai (Bureti) and Dagoretti South MP John Kiarie who abstained.
Senators whose signatures were missing from the report are Amos Wako (Busia), Fatuma Dullo (Isiolo), and Murang’as Irungu Kang'ata, who abstained.
On the other hand, seven signed a minority report fronted by Nairobi Senator Johnson Sakaja. Interestingly, Nominated MP Jennifer Shamalla’s signature was on both reports.
Others who signed the minority report were Emmanuel Wangwe (Nabakholo), John Wambugu (Kirinyaga Central), Anthony Kiai (Mukurweini), Robert Gichimu (Gichugu) and Zuleka Hassan (Kwale).
Their point of departure was the finding that the delimitation of the 70 new constituencies was unconstitutional as it would be tantamount to usurping the Independent Electoral and Boundaries Commission (IEBC).
In the majority report, the Kigano and Omogeni-led majority observed that the delimitation of boundaries clashed with Article 89 of the Constitution which vested such mandate on the IEBC. The Sakaja-led minority position differed from this finding.
But the committees conceded that in as much as Parliament would reject a Bill to amend the Constitution on account of unconstitutional amendments, the final say rested with the people.
Given that the Bill was a first in the current constitutional order, the committees proposed to enact legislation that sets out the procedure for processing a constitutional amendment through popular initiative, observing that the role of MPs in such an amendment was not ceremonial.
But their role, the committee suggested, was limited to correcting minor “typographical errors” that do not change the substance of the Bill.
“…pursuant to Article 257 (10) of the Constitution, Parliament cannot replace or usurp the people’s views on a popular initiative with its own. Thus, the ultimate authority regarding a popular initiative Bill rests with the people,” reads the report in part.
This finding was a concession to the limited role Parliament plays in such a Bill by amending substantial matters, coming in the wake of claims that MPs had a bigger role to play.
“…such corrections may pave way for the introduction of similar proposals for correction on the floors of the respective Houses and that this may eventually run the risk of offending the overriding principle of protection of the sovereign will of the people,” reads the report further.
In what seems like a dent to proposals that only some parts of the Bill should be subjected to a referendum and others through other channels, the committees found that the BBI-backed Bill could not be separated, arguing that such issues should be canvassed at the drafting stage.
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The case was similar for proposals to have a multi-choice referendum.
“The Bill should be subjected to the Referendum based on a single question. Proceeding otherwise through the route of multiple questions would present constitutional, legal and practical difficulties in the identification of those questions,” says the report.
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