The push and pull over the BBI Bill in Parliament risks derailing the June referendum.
Members of the National Assembly and Senators on Tuesday clashed over a move by the joint Parliamentary Committee on Justice and Legal Affairs over their request for more time to deliberate over four key controversial issues.
The committee co-chaired by Nyamira Senator Okong’o Mogeni and Kangema MP Muturi Kigano is grappling with whether all the issues in the Constitution of Kenya (Amendment) Bill, 2020 should go into a referendum.
Allies of President Uhuru Kenyatta are said to prefer a parliamentary process to avoid a referendum, while Raila Odinga foot soldiers are adamant about the plebiscite.
There is also a standoff over the manner to conduct the referendum if that is the option taken. Some members allied to Deputy President William Ruto have proposed a choice referendum.
On Tuesday, legislators also debated whether Parliament has a role in amending the Bill and whether the IEBC should have the final say on the creation of the 70 new constituencies as well as the formula to distribute them.
Some argued that the House’s role in the process is ceremonial — should not touch the Bill — because the constitutional process is a popular initiative.
“My opinion is that this Bill is a popular initiative. It can’t be changed by anyone; certainly not Parliament. After it’s been confirmed by IEBC and especially after it’s been passed by the county assemblies it goes as it is to a referendum; to pass or fail,” Nyeri Town MP Ngunjiri Wambugu said.
He insisted that Parliament has no role to sponsor any amendments to the Bill that is going through public participation.
“What this means is that the Bill going to the referendum is the one that was passed by the counties. We cannot change anything on that Bill because it then means what we take to a referendum is not what IEBC sent to the counties, or what the counties debated and passed,” the Uhuru ally in Central Kenya said.
However, Ruaraka MP Tom Kajwang’ — a close ally of Raila — maintained that Parliament has a role to play in the Constitution amendment process.
“When you come here and say that we are ceremonial this English of ceremonial, that we are just ceremonial, we are just coming here to see how things happen. The same Constitution talks about article 94, 95, 96 then you come here and tell us that we are ceremonial. Ceremonial in which ceremony?” Kajwang asked. “We waited for you to bring this thing before us. Once you have brought it and it is a Bill, we will deal with it as National Assembly. We have a voice of how to deal with this thing… you can’t come and tell us we are ceremonial.”
Siaya Senator James Orengo, another ally of ODM leader, said nobody should say that Parliament is ceremonial.
“You cannot have a provision in the Constitution that Parliament is required to conduct its business for ceremonial purposes,” Orengo said.
The joint committee got 14 more days from the Senate while National Assembly allocated 10 days so that it can consult constitutional experts on the way forward.
The push to reopen the report could derail the entire process, even as the 2022 General Election fast approaches.
Lawyers Bobby Mkangi and Otiende Amollo (Rarieda MP) — experts in constitutional law who were part of the Committee of Experts that mid-wifed the 2010 Constitution — say the bill cannot be changed once published and its one million signatures certified by the IEBC. They were both in the.
“Once the bill is taken to the IEBC with a million signatures, the (signatures) are indicative of agreement with the proposed bill. Tinkering with the bill would mean changing what the one million signatures agreed with at the presentation to the IEBC,” Mkangi said.
Amollo said once the Bill goes to the county assemblies, each county can only either pass it or reject it as it happened. “The amendment passes through the process as it is.”
“It means a million Kenyans support it so you don’t have authority to amend it. You just either agree with it or not. Then eventually, the test is, do majority of Kenyans also agree with it or not?”
Ndaragwa MP Jeremiah Kioni and the chairman of the National Assembly Constitution Implementation Oversight Committee said once published, the Bill was done.
“You can’t change it. You vote for it as it is. This is why we say the promoters must be careful with the proposals,” he said.