Ruto allies' bid to resurrect BBI Bill's provisions they dismissed

National Assembly Majority Leader Kimani Ichungwa. [Elvis Ogina, Standard]

"Explain to me how having a president who will appoint a prime minister from the winning coalition and runner's up being opposition leader will sort out the 'winner-takes-it-all' question. Forgive me if I'm slow," Dr Ruto said during the launch of the BBI report at Bomas of Kenya.

However, Ichungwa on May 2, welcomed a public petition by Mr Victor Okul, saying the proposal to introduce the office of prime minister and a deputy premier was timely.

"Having reviewed the prayer by the petitioner for the establishment of the office of prime minister and deputy prime minister, and leader of official opposition, I note that this is indeed timely and the petitioner seeks to enhance inclusiveness and promote unity in the country by providing for greater representation of different regions and communities in government," he said.

According to the communication from the Speaker's office, the petitioner was convinced that the winner-takes-all system is regressive, particularly in light of the fact that the office of prime minister, deputy prime minister, and leader of opposition were part of the changes various Kenyans had proposed to the draft constitution. "The current system is to blame for the divisive presidential elections that have been witnessed in the country since the promulgation of the 2010 Constitution," read the statement by the petitioner.

Notably, the opposition, that pushed for the failed BBI, has also welcomed the initiative to amend the Constitution but has differed on the approach, maintaining the amendment must be done through a referendum and not through Parliament.

Minority Leader Opiyo Wandayi said the proposal sought to alter the composition of Parliament and as such required a referendum.

"Article 255 of the Constitution directs that a proposal of that nature can only be taken to the people to decide," he said.

Lawyer Bobby Mkangi (left). [Kipsang Joseph, Standard]

Article 256 explains the amendment of the Constitution through a parliamentary initiative, while Article 257 entails how to amend the Constitution through a popular initiative.

"A Bill to amend this Constitution shall have been passed by Parliament when each House of Parliament has passed the Bill, in both its second and third readings, by not less than two-thirds of all the members of that House," Article 256(d) reads.

However, Article 255 gives conditions under which the Constitution can be amended via a referendum.

The conditions are supremacy of the Constitution, the independence of the Judiciary, and commissions and independent offices to which Chapter 15 applies, the functions of Parliament, the objects, principles and structure of devolved government, among others. "A proposed amendment shall be approved by a referendum under Clause (1) if at least 20 per cent of the registered voters in each of at least half of the counties vote in the referendum; and the amendment is supported by a simple majority of the citizens voting in the referendum," the Constitution reads.

However, political analyst Prof Gitile Naituli observed that what Ruto's administration is doing by introducing the Bill is to legitimise what he has been implementing, and which he contends violates the Constitution.

"The Constitution has not provided for the office of the prime minister but the Kenya Kwanza administration introduced the position and named it Prime Cabinet Secretary," he said.

"The majority in the National Assembly amended the Standing Orders to allow Cabinet Secretaries to appear before the House while the Constitution only allows them to appear in committees; these are the wrongs that the administration wants to sanitise through the amendment," said Prof Naituli. Former Murang'a Governor Mwangi wa Iria, who has become a darling of the opposition, has welcomed the move quoting the words of former President Uhuru Kenyatta who said "BBI is just but a dream deferred, one day, someday, it will happen. A country cannot survive unfair and skewed representation."

"They have seen the road to Damascus; they only opposed the referendum because it was being fronted by Uhuru and Raila Odinga," said Wa Iria, adding that the BBI plan has become a stone that was rejected by builders only for it to turn out to be the cornerstone.