Parliament's role mere formality in BBI referendum push

Legal experts say as some issues touch on protected areas of the Constitution, referendum is inevitable.

In Summary
  • Speakers of county assemblies expected to deliver draft Bills to Parliament speakers from Wednesday. Vote merely procedural but of political importance.
  • BBI proponents are pushing for a referendum around June.
A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020.
BBI REPORT: A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020.

The Constitution of Kenya (Amendment) Bill, 2020, which received overwhelming endorsement by a majority of county assemblies will proceed to a referendum regardless of Parliament's verdict.

Lawyers say Parliament's role in a popular initiative to amend the Constitution is largely procedural.

Legal experts say a bill that seeks to amend special and fundamental sections of the Constitution regarded as 'ring-fenced' must end up in a referendum, regardless of Parliament's verdict.

The BBI Bill touches on some sections in Article 255, including the creation of a Judiciary Ombudsman that will alter the Independence of the Judiciary. Other areas are expanding the Executive with a prime minister and two deputies, as well as creating more constituencies and increasing allocations to counties. 

“If either House of Parliament fails to pass the bill, or the bill relates to a matter mentioned in 255(1), the proposed amendment shall be submitted to the people in a referendum,” reads Article 257(10) of the Constitution.

Article 255 states a proposed amendment or amendments shall be enacted by referendum if they relate to the supremacy of the Constitution, the territory of Kenya, sovereignty of the people, national values and the Bill of Rights.

Other fundamental areas are the term of the office of the president, the independence of the Judiciary and independent commissions, the functions of Parliament, the objects, principals and structure of devolved government and the provisions of the Constitution.

Constitutional lawyer Kamotho Waiganjo told the Star the BBI Bill will end up in a referendum regardless of Parliament's verdict.

"The role of Parliament in the process would have been significant if the Bill was about general issues. Now that the Bill touches on some of the protected areas, it will end up in a referendum," Waiganjo said.

The former member of the Committee of Experts that drafted the 2010 Constitution maintained that Kenyans will have the final say on the Bill in a vote

“Irregardless of the outcome in Parliament, the Bill will have to be submitted to Kenyans in a referendum,”  Constitutional lawyer Bobby Mkangi said.

“The role of Parliament in the process will be peripheral in terms of procedure but politically significant."

From Wednesday, the speakers of the assemblies are expected to start delivering copies of the draft Bill jointly to the speakers of Parliament together with their approval certificates.

The Constitution provides that the Bill shall without delay be introduced before the Senate and the National Assembly for debate.

At this stage, once Parliament votes to approve the Bill, the two speakers will deliver to the President certificates of approval accompanied by the draft Bill for presidential assent.

A Constitutional amendment bill by popular initiative must be supported by more than half or the members of each House for it to automatically become law — if not touching on protected areas.

"If Parliament passes the bill, it shall be submitted to the President for assent in accordance with Article 256(4) and (5)," reads Article 258(9).

However, if the bill touches on the Article 255 issues, no matter the vote, the President will submit it to the electoral commission to conduct a referendum.

"Parliament is irrelevant, the Bill will proceed to a referendum whether Parliament passes it or not," constitutional lawyer Otiende Amolo said.

Mkangi said the whole constitutional amendment Bill will be subjected to a referendum.

“The Constitution of Kenya (amendment) Bill, 2020 is a package with issues that do not require a referendum tied to the issues that require a referendum, and vice versa,” he said.

Mkangi argued that the proponents of the popular initiative will be keen to have both Houses of Parliament approve the Bill as a political message to their critics.

“It would be in the interest of the proponents of the process to get the endorsement of the two Houses, and quite more unanimously, to legitimise the initiative,” he said.

However, constitutional lawyer Peter Wanyama argued that once both Houses of Parliament approve the Bill, then the Constitution stands amended by the sections that do not require a referendum.

“There are some issues that, if Parliament passes the Bill, will take effect automatically. These issues do not require a referendum to have the Constitution stand amended,” Wanyama said.


Constitutional lawyer Bobby Mkangi.
CONSTITUTION EXPERT: Constitutional lawyer Bobby Mkangi.
Image: FILE

National Assembly Deputy Majority Whip Maoka Maore on Tuesday welcomed the unanimous decision by many assemblies, saying Parliament was gearing up to play its part.

“We are ready for the next phase of the process as Parliament,” Maore said predicting a massive support for the Bill in the twin houses.

(Edited by V. Graham)