The Judiciary should know they are causing unnecessary anxiety in the country. They need to make a decision so that the matter is settled
The Building Bridges Initiative could be thrown into disarray despite the resolution taken by either Houses of Parliament on the Constitution of Kenya (Amendment) Bill, 2020.
Already, the courts have temporarily barred the Independent Electoral and Boundaries Commission from preparing for or conducting a referendum to implement the BBI Bill.
The High Court also stopped the BBI Bill from being assented to by President Uhuru Kenyatta, orders which remain in force until the judgment is delivered.
To add insult to injury, a section of MPs opposed a schedule detailing the proposed 70 constituencies, terming unconstitutional.
Lawyers say that is a potential legal minefield since Bill cannot be amended to ‘edit’ the contentious clauses.
Debate on the Bill started on a stormy note on Wednesday with lawmakers seeking clarity on the procedure of transacting the Bill in the House.
But even as MPs vote to approve or reject the Bill, the process will not proceed until the five-judge bench renders a decision.
It is unclear when Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka will deliver their judgment.
In the prevailing circumstances, the timelines for implementing the provisions of the proposed law are getting tight, especially delimiting and apportioning the proposed 70 constituencies.
BBI promoters had anticipated that the IEBC would organise and conduct a referendum between April 6 and June 6.
In their implementation matrix, the team projected that the Bill would be enacted by June 14, a target that could prove hard to hit.
Parties promoting the BBI agree that uncertainty is eating into the process and causing anxiety.
ODM chairman John Mbadi the awaited court process eats into the process as much as the ruling delays.
“The Judiciary should know they are causing unnecessary anxiety in the country. They need to make a decision so that the matter is settled,” the Minority leader said.
Former BBI joint secretary Paul Mwangi said that until the ruling is delivered, they wouldn’t know what the timelines would be and how the decision affects them.
The lawyer said that since the petitioners have sought to stop the process, the next steps would entirely depend on whether the courts would agree with them or not.
Assuming the entire process matures to a referendum, there are chances the results of the referendum are going to be challenged in court and I foresee the cases going all the way to the Supreme Court.
Mwangi pointed to external political forces “using the court as a tool to execute a political purpose.
“We have told the courts to refuse such and that people should take their political contests to the field where they belong…these are essentially political contests,” he said.
There are two petitions filed at the Supreme Court of Kenya and eight others at the High Court – both on content and processes by which the Bill was formulated.
The petitioners generally contend the content and process violate the Constitution and have prayed to the courts to stop the law change drive.
Supreme Court judges however said the High Court was seized of the matter ahead of them hence “see no justification to usurp the court’s role".
The outstanding eight cases at the lower court have put in limbo, the possibility of Kenyans reaping the benefits of BBI in the 2022 general elections.
The situation has cast anxiety on whether the heavily contested 70 constituencies proposed in the Bill will apply in the next year’s vote.
In as much as the Bill exempts the provision for one year window to elections, the IEBC has already warned that it will be constrained if it is to work within a tight schedule.
The polls agency says the six months provided for it to determine the boundaries of the proposed constituencies is insufficient, citing past experience and practice.
IEBC says that it took two teams two and half years to delimit the current constituency boundaries, adding that public hearings alone took over a year and a half.
The electoral agency further argues it may not be able to complete auxiliary activities on the newly created constituencies such as fresh voter registration for the 2022 polls.
It further argued there was a lacuna in the law regarding the review of boundaries, adding that its draft bill rectifying the mess is yet to be approved by MPs.
DEADLOCK
A joint Senate and National Assembly Committee on Justice and Legal Affairs has also raised substantive queries on the constitutionality of the Bill.
The contention is on the inclusion of the list distributing the 70 constituencies per county as a schedule of the BBI legislation, setting the stage for possible litigation.
Lawmakers said the criteria applied in the distribution of the electoral units fell short of the provisions of the law and there was no public participation.
The team said there were serious problems with the schedule listing the proposed constituencies adding that the presently protected ones will enjoy the protection in perpetuity.
“The committee found that the second schedule of the Bill is unconstitutional,” the Senator Okong’o Omogeni (Nyamira) and Kangema MP Muturi Kigano-led committee concluded.
It is a fault of their creation. Why must it be 2022? The hurry is making it appear as if the deadline is more important than the issues.
Constitutional lawyer Bobby Mkangi said it was the BBI proponents who created a timeline that they were not entirely in charge of.
He said the implementation of the BBI is tied to its proponents and one of the issues is the prevailing court cases, adding that others are likely to come up.
Mkangi said, “Assuming the entire process matures to a referendum, there are chances the results of the referendum are going to be challenged in court and I foresee the cases going all the way to the Supreme Court.”
He added that the expedited delimitation of boundaries is also challengeable in court. “It is quite an unfortunate situation and a challenge for them because of the timeline they created.”
Mkangi argued that the BBI proponents are exposing themselves to legal challenges owing to the hurry to complete the process before the next election.
“It is a fault of their creation. Why must it be 2022? The hurry is making it appear as if the deadline is more important than the issues.”
Ugenya MP David Ochieng’, also a lawyer, said processing the Bill in the face of more than eight court cases is likely to result in a vain effort.
“The courts may find the whole process in breach of the Constitution. Some of the prayers in these cases may end up in making the Bill being a nullity,” the Ugenya MP warned.
He said the question would be whether Parliament should wait for the cases to be finished or conclude debate on a Bill it knows well cannot be assented to by the president.
The uncertainty of the case outcome adds to the perilous journey the BBI has suffered since the train left the station after the March 2018 handshake.
The first report was released in November 2019 but was met with strong opposition by leaders claiming it had gaps that needed to be addressed.
Campaigns to get public views on the document following the first report of the BBI task force were cut short by the first wave of the Covid19 pandemic in April 2020.
The unity drive was jolted in November 2020 after the promoters put off the collection of signatures to pave way for consensus building.
Just when campaigns for the document were around the corner, county assemblies having concluded the debate on the bill, second lockdowns were imposed.
Observers say that away from the contentious issues raised by the joint House committee, the court cases and the Covid-19 situation cast a dark shadow on the future of BBI.
(Edited by V. Graham)
