• Kibwana, in a response to the Attorney General’s advisory to the Supreme Court, says the Constitution does not contemplate an omnibus amendment or a bill containing a multiplicity of unrelated issues.
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The government's decision to amend the Constitution through a single Bill is illegal, Makueni Governor Kivutha Kibwana has said in filings at the Supreme Court.
The Building Bridges Initiative process has proposed changes to the supreme law through the Constitution (Amendment) Bill, 2020. It is already before county assemblies although a court on Monday halted further proceedings.
Kibwana, in a response to the Attorney General’s advisory to the Supreme Court, says the Constitution does not contemplate an omnibus amendment or a bill containing a multiplicity of unrelated issues.
Through lawyers Christine Nkungu and Ochiel Dudley, Kibwana argues where a bill to amend the Constitution is based on a singular subject matter as opposed to amending a single provision, the singular issue or subject matter presented must meet the constitutional test on “unity of content”.
There is no possibility that a bill to amend the Constitution would contain a mix of issues some requiring a referendum and others not based on Article 255 criteria, he says.
“The amendment – whether by parliamentary or popular initiative - will be such that it is easy to discern whether the issue of the amendment requires or does not require to be subjected to a referendum based on Article 255 criteria,” Kibwana argues.
Kibwana says using multiple bills to amend the Constitution would make it easy for the voter to understand and appreciate the full import of what is sought to be amended and facilitate informed public participation.
“It makes it easy to formulate a referendum question often without the need for a multiplicity of questions,” he further says.
The Makueni county boss has also raised concern on the use of state machinery to spearhead the BBI campaigns.
“Not only is a process that is sponsored using state resources unconstitutional, but it also negates and mocks the entire meaning of popular initiative,” he says.
He says a popular initiative is a tool that was exclusively reserved by law for the people and not the state or public offices.
Allowing state officers to promote a popular initiative using public resources is tantamount to misappropriation of public funds.
“Allowing state public officers to be promoters of a popular initiative and to use public resources to do so has the unintended slippery slope effect in that any public office or official – including a sub-chief can use her office and divert public resources for use on campaigning for the popular initiative,” reads court documents.
Kibwana avers that until the promoters of a popular initiative present a draft bill or general suggestion with the requisite signatures to IEBC in accordance with Article 257(4) no public funds or resources should be expended in preparing, promoting and mobilising support for a popular initiative.
“This ensures an even playing field, since an interpretation that allows state or public officers, offices or organs to use state resources promotes inequality by skewing power imbalance between amendment causes promoted by individual citizens and those sponsored by the state,” he says in court documents.
In the case, Kibwana had filed a reference at the Supreme Court seeking an advisory opinion on the issues relating to the constitutionality of BBI.
Kericho and Nandi county assemblies have also sought an advisory from the apex court.
Both matters were mentioned on Tuesday and Acting Chief Justice Philomena Mwilu directed IEBC to file their responses.
The case will be mentioned on February 19 for further directions.