MPs in race against time to lay legal basis for BBI vote

Parliamentarians are in a race against time to pass a crucial law intended to guide the referendum to implement the Building Bridges Initiative proposals.

More than 100 MPs began the debate on the Referendum Bill (No2) of 2020 on Thursday, with the Second Reading and Third Reading expected to be concluded next Tuesday.

Rarieda MP Otiende Amollo, vice chairperson of the Justice and Legal Affairs Committee, said the Bill consolidates law for conducting referenda.

The committee developed the Bill in consultation with the Independent Electoral and Boundaries Commission and other stakeholders.

A separate referendum Bill was published by the Constitutional Implementation Oversight Committee chaired by Ndaragwa MP Jeremiah Kioni.

Speaker Justin Muturi directed that the Bill by JLAC be prioritised, and if possible be merged with the CIOC’s.

“Even though there was no agreement on which Bill takes priority, there was an agreement on the effect of the amendment and there is a report to that effect,” Amollo said.

The Referendum Bill provides that a referendum be treated as an election and sets 14 days as the time in which the president has to act on a parliamentary initiative bill.

It also provides for the process of verification of signatures, seeks for the list to be made public and stipulates that IEBC complies with the law on framing the referendum question.

The Bill further seeks to introduce timelines for IEBC and Parliament to act on a referendum.

Also provided for are participation, inclusivity and accommodation of divergent views while consolidating the draft bill.

The proposed law prohibits MPs and MCAs from tinkering with a bill after it is published and supported by one million signatures.

The proposed law further seeks to prevent the President from initiating a referendum by fiat.

It also provides the procedure for conducting a referendum. CIOC timelines were adopted.

IEBC would thus have seven days to assign symbols for use in the referendum after the Bill is communicated by Parliament.

The Referendum Bill also provides that a simple question be framed, which would require a simple answer.

It also locks out opponents of a referendum drive from coming up with other options to compete with a proposed amendment.

The proposal also sets 14 days for filing a petition challenging the outcome of a referendum – a case which has to be well-founded.

Once challenged, a three-judge bench has to decide the case within 30 days. The cases vacate at the Appeals court.

Appeals are to be determined in 21 days with litigants expected to file within 14 days and provide for offences applicable to conduct a referendum.

The fight by President Uhuru Kenyatta and ODM leader Raila Odinga's side against Deputy President William Ruto’s Tangatanga camp over the BBI spilt into the debate.

Tharaka MP Gitonga Murugara said the law would guide referenda, adding that it would be of interest that referenda provide for multiple questions.

Members chided the lawmaker for introducing other issues that were not before the House. BBI proponents are against the use of multiple questions as sought by Ruto’s side.

Murungara said, “The essence of a referendum is to ensure that whatever question is being answered in the best way the people want.”

Minority leader John Mbadi said the Bill captures issues that are not clear in the current legal provisions.

He warned of the risk of the Bill being taken through an unending cycle with the requirement that provides for a back-and-forth between IEBC and Parliament in settling on a referendum question.

IEBC is expected to frame the question and send to MPs for review and the lawmakers expected to return it to the polls' agency.

“The bill could be delayed. I don’t see why Parliament should get leeway to redraft a question or bill under a popular initiative,” Mbadi said.

“How would you know that what Parliament is thinking is what the promoters want? It would be upon the people to decide that they don’t agree with the promoters.”

Mbadi said there was no need to spend taxpayers’ money to engage in public participation on a bill by popular initiative.

“It will end up with the people of Kenya. If they don’t want, it would be upon those who don’t want the bill to campaign and convince the people of this country that this bill is either good or bad.”

“When it comes to a popular initiative, we need to reduce the import of public participation. It is assumed participation is catered to by the time you collect a million signatures,” the Suba South MP said.

Majority leader Amos Kimunya said he was elated the Bill is being dealt with “when there is something to focus on” – the BBI referendum.

“We need to look for a law that will not guide just now but also the future,” the Kipipiri MP said.

He called for a distinction between dealing with a referendum involving a question and one that involves a bill.

Makueni MP Daniel Maanzo said the referendum law would be made better, citing the need to address grey areas on petition involving a plebiscite.

Garissa Township MP Aden Duale said issues such as timelines are crucial and that there is need to embed them in the law.

“Parliament has a clear role of amending the Constitution. There exists a lacuna on a number of issues.”

Duale rooted for the Bill by CIOC, saying it was a very good one since it was defining each and every item.

“I urge the CIOC to bring the features during the Committee of the Whole House,” the former House Majority leader said.

He cautioned against the last-minute rush that is characteristic of efforts to reform institutions and craft crucial laws.

“This Bill must be passed or there would be a lot of litigation in the conduct of any referendum,” Duale said.

Among issues he said were important included public participation, clarity on procedure at the county assemblies, and period for introduction of the Bill and approval by the county assembly.

“We must have a timeline. The referendum of 2010 had its step assigned a timeline. All these matters must be addressed.”

On the multiple-choice question, he said there should be no panic. It should be put in law to provide for IEBC to decide the question format, he said.

Suna East MP Junet Mohamed differed with Duale, saying the law should be amended to remove the requirement for IEBC to formulate the question.

“Popular initiative is open to everyone. When I have gone through the process of coming up with my own bill, you can’t convince me that you want to have multiple questions on my bill. It is dishonest.”

Junet urged his colleagues to stop looking at the Bill with bipartisan lenses.

“Let us be objective. Let us do the law for posterity. Let us look at what is in the best interest of Kenyans.”

(edited by o. owino)