EXPERT COMMENT

BBI proposal must go via referendum

In my view, to argue that you can implement that report by bringing it to Parliament is no-brainer.

In Summary
  • In all those respect it will affect the functions of Parliament, under Article 255 therefore it must go to a referendum.
  • Secondly, anything that affects the Bill of Rights must go to a referendum. This report proposes a radical departure from what we have in proposing that if the governor candidate is a woman then the deputy must be a man that will affect Article 38 of the Constitution.
Ombudsman chairman Otiende Omollo.Photo/FILE
Ombudsman chairman Otiende Omollo.Photo/FILE

The fact that we must have a referendum is obvious from a constitutional perspective. The first reason is that implementation of the proposed changes will affect the functions of Parliament.

It will affect the functions because first, it will give Parliament an additional function of appointing and dismissing a Prime Minister that is a function that Parliament does not have right now.

It will deny Parliament of a function it has right now of approving Principal Secretaries, you see it affects the functions of Parliament.

Thirdly, it will give Parliament an additional function of essentially electing what the report called ex-officio Members of Parliament because the 10 technocrats who are to be non-MPs the BBI requires them to be ex-officio MPs.

So once Parliamentarians are elected then they now have an additional new function of electing 10 ex-officio members and it will also affect the function of Parliament because MPs will have to define what an ex-officio MP mean because right now there is no ex-officio member.

In all those respects it will affect the functions of Parliament, under Article 255, therefore, it must go to a referendum.

Secondly, anything that affects the Bill of Rights must go to a referendum. This report proposes a radical departure from what we have in proposing that if the governor candidate is a woman then the deputy must be a man that will affect Article 38 of the Constitution.

Currently, under Article 38 anybody has a right to vie for any office and be elected to that office which means that under Article 38 there is no way that you can force a man to have a woman as running-mate. If you implement that you must, therefore, adjust Article 38 and when you adjust anything in the Bill of Rights obviously it must go to a referendum.

It also affects the question of the independence of Judiciary and Constitutional Commissions. The report proposes that Commissioners of IEBC, basically, to be appointed through political parties which means it will no longer be an independent Commission.

The theory, right now, is that Commissioners are supposed to be independent of political parties; if you go that route you must adjust the chapter that deals with Commissions and their independence and that requires a referendum.

In terms of structure and functions of devolved government, to the extent that the report proposes special status for Nairobi governed differently from other counties it is, therefore, affecting structures and functions of devolved government again obviously under Article 255 it must go to a referendum.

In my view, to argue that you can implement that report by bringing it to Parliament is a no-brainer.

The Rarieda MP spoke to the Star