BBI stand-off over push by ODM for amendments

A stand-off has divided the BBI secretariat over a fresh push by ODM to reopen the document for amendments in an acid test of the handshake.

At the centre of the deadlock is the demand by ODM leader Raila Odinga’s team to review distribution of the 70 new constituencies and appointment of the IEBC commissioners.

The ODM side is also demanding the proposed Health Service Commission should be entrenched in the Constitution and the Independent Policing Oversight Authority elevated to a commission.

The stalemate is likely music to the ears of Deputy President William Ruto and his troops who have separately demanded radical amendments to the Bill "to build consensus". They've scaled back demands but haven't given up. 

The Ruto wing says Raila has taken advantage of the handshake to drive a wedge between Uhuru and Ruto that has pushed the DP from the heart of power.

The ODM side says publication of Constitution of Kenya (Amendment) Bill, 2020 was done in a hurry without consultations– just hours before launch on November 25. In their haste, drafters left out some proposals that had been agreed upon, ODM says.

In a legal opinion exclusively obtained by the Star, the Raila team is in fact admitting it is aggrieved by some of the changes made to the Bill on the day of the signature launch.

“Prior to the launch of the signature campaign, the Bill was printed in the morning. In view of the hurry to print the Bill for the launch some matters agreed upon between the parties were left out. Key among them are the IEBC reforms and the list of counties to benefit from the 70 additional constituencies,” the document reads.

It adds: “One partner is particularly aggrieved by the last-minute changes effected to the Bill before publication. It is important to note that the process needs both parties to build bridges among themselves and other Kenyans.”

The standoff – the Star has learnt - could delay the submission of the BBI signatures to the Independent Electoral and Boundaries Commission as had earlier been planned.

The verification of signatures, however, went on at the secretariat offices at Daraja House that was a beehive of activity.

Other sources said the signatures will be taken to the IEBC on Friday. 

Revelations that the Uhuru team was separately having talks with the Ruto wing to revisit the document (see sidebar story) sent clear signals of the possibility of the document being opened for amendments.

During the launch of the signature collection at KICC, Raila passionately spoke of  how BBI will cure electoral fraud by having a section of IEBC bosses nominated by political parties.

It later emerged that proposal had been expunged from the final Bill, dealing a blow to Raila's long-held reform agenda.

Inside sources told the Star President Uhuru Kenyatta and Raila's  teams in the secretariat cannot agree on how to proceed.

Raila’s bidding in the BBI secretariat is done through Suna East MP Junet Mohamed and Kisii Woman Representative Janet Ongera.

The President's interests are represented by Sarah Mwiria, wife to former Education assistant minister Kilemi Mwiria, and former Dagoretti South MP Dennis Waweru.

The stalemate is, however, a political hot potato only spoken of in hushed tones.

On Tuesday, none of the secretariat members picked calls from the Star or responded to text messages seeking clarification on the matter.

ODM chairman John Mbadi flatly rejected the notion of any disquiet involving the BBI process.

“If there is any discussion we are having, we will make it public. Anything we have not made public is not there,"Mbadi told the Star. "If there is to be any fine-tuning before it [the BBI Bill] goes to the IEBC, that must be done between the two leaders.”

On the 70 additional seats, Raila is recommending the distribution model to consider constituency as a key electoral area and basis for  representation, as opposed to county population used in the draft.

They argue the current formula has denied Homa Bay county two constituencies and an additional constituency in Nyeri, Nyandarua, Wajir and Marsabit.

Under the ODM proposal, Kilifi would lose one of four allocated constituencies. Machakos that got three would lose one to Kitui.

They are also proposing only eight additional constituencies for Nairobi instead of 12.

"Nairobi was to be left with eight additional constituencies noting that some of the constituencies, though very highly populated, are very small in size and thus cannot be delimited or divided more than once," ODM argues. 

The argument is that constituencies have become the focal point for resource distribution and personnel hiring at the national level.

This include recruitment in the police, the army and prisons among others, and the distribution of social protection funds such as the cash transfer programme for the elderly.

"Whoever is denying you a constituency is disadvantaging you on many fronts. Remember each constituency is allocated Sh100 million each year," an insider aware of the behind-the-scene intrigues told the Star.

A source tells the Star the Raila side also wants further changes on the appointment of Independent Electoral and Boundaries Commission  commissioners, as opposed to the proposed select panel.

The ODM wing is for political parties’ appointees to run the electoral agency, arguing that is the only way to restore confidence in the electoral agency.

In the document, Raila is calling for a seven-member commission, three of whom shall be representatives of parliamentary political parties.

The Star's source intimated that the President's side of the secretariat was against the proposed changes, saying they would make the whole process vulnerable to legal challenges.

 “The issue has been the legal part of it, people signed their signatures based on the draft they have been given and if now editing is done, it means the whole thing changes,” the source said.

But in a legal opinion document by Raila team – seen by the Star – nothing stops republication of the Bill even after signature collection. It argues the proposals are not new and will not significantly alter the Bill.

"The Bill should be republished at the earliest opportunity. Once republished, the draft would be delivered to the IEBC by the promoters together with the one million signatures...at this point, the Bill should no longer be amenable to amendments," ODM argues.

The teams had been holed up in meetings for the better part of Tuesday, trying to unlock the stalemate.

(Edited by V. Graham)