•The Bill is the product of a popular initiative as stipulated in Article 257 of the Constitution and some experts say Houses of Parliament should consider it as it is.
•Uhuru recommended suspension of sittings of the National Assembly, the Senate and county assemblies their committees.
Fresh cracks in the joint BBI parliamentary committee could jeopardise President Uhuru Kenyatta and ODM leader Raila Odinga's push for a referendum by June.
Details of the sharp divisions in the joint Senate and National Assembly committee emerged as Parliament resumes Tuesday to suspend physical sittings due to the worsening Covid-19 pandemic.
Senators and MPs on the committee have clashed over thorny issues, including whether or not to make recommendations to amend the BBI Bill.
The Constitution of Kenya (amendment) Bill, 2020, is before the joint committee for review before it is tabled for a Second Reading.
The Star has established the senators led by their chairperson Okong'o Omogeni are pushing for far-reaching proposals to amend the Bill before Parliament.
However, the National Assembly's panel led by Muturi Kigano is determined to ring fence the Bill from any further amendments, triggering a standoff.
The thorny issues are said to have also split Raila's allies down the middle, with those in the National Assembly insisting the Bill must not be be opened for any further amendments.
Senators in the BBI committee have reportedly pledged to write a report recommending the Bill to be re-opened for amendments against the wishes of their counterparts in the National Assembly.
On Monday, a senator on the committee confirmed to the Star there was a deadlock in the panel over re-opening the report for review.
“We cannot hold public participation in vain. We cannot sit as a committee, invite Kenyans to give their views, then disregard the same views,” he said in confidence.
He said the protracted face-off was not about to end. He cited fear of reprisals for commenting on matters before the committee without authority from the chairpersons.
"We hold the view that we have an opportunity to set the precedent on the role of Parliament on constitutional review by popular initiative," he said.
However, a member of the National Assembly said Parliament has no mandate to tinker with the contents of the report.
"Our position is that this being a popular initiative, the role of Parliament is largely ceremonial," he said.
The push and pull over the BBI bill could significantly affect the roadmap to the referendum unveiled by Raila and Uhuru in Naivasha last year.
The BBI secretariat had unveiled a tight timeline that would culminate in a referendum in mid-year.
The law bars any constitutional amendments a year to a general election.
The Bill is the product of a popular initiative as stipulated in Article 257 of the Constitution and some experts say Houses of Parliament should consider it as it is.
The cracks emerged amid revelation the committee has suspended all its planned meetings – both virtual and physical – further throwing the plebiscite into a state of uncertainty.
The promoters of the BBI Bill had projected that Parliament would conclude the debate and vote on it by April 5 but the Covid-19 containment measures could also change timelines.
The co-chairs of the joint Justice and Legal Affairs committee Senator Omogeni (Nyamira) and Kigano (Kangema) suspended the meetings soon after President Kenyatta announced Covid-19 containment measures.
Uhuru recommended suspending sittings of the National Assembly, the Senate and county assemblies.
The President also banned all forms of gatherings and imposed tough measures for hotels, restaurants and eateries, a scenario experts warn will have far-reaching, painful implications for the economy.
The announcement came as the committee met at Windsor on Friday and approved the recruitment of two legal experts to comb through the Bill and the submissions by the members of the public.
The experts – Prof Patricia Kameri-Mbote and Dr Collins Odote – were picked to work alongside top legal minds in the committee secretariat.
Governance and legal expert Wachira Maina, who was initially supposed to be part of the team, was dropped at the last minute.
Prof Mbotte is currently a professor at the University of Nairobi School of Law. She has taught there for more than 30 years and served as dean.
She is an advocate of the High Court and was conferred with the rank of Senior Counsel in 2012.
Dr Odote is a senior lecturer at the University of Nairobi.
The consultants were supposed to hand in their report to the panel last Sunday to enable the chairs brief their respective Business committees on their progress by Monday.
But that never happened, after the meetings were canceled.
“We have not made any progress. We held a meeting on Friday, then the directive of the President came. Some we have not met since we were barred from holding any meetings,” Makueni Senator Mutula Kilonzo Jr said.
“The question, is how are we going to meet? The co-chairs do not want us to meet physically and they are also opposing virtual meetings. That is where the fight is. We are at a standstill and we don’t know what is going on,” Mutula added.
Sources within the committee divulged to the Star that Omogeni and Muturi suspended the meetings, include virtual, on grounds the issues to be discussed were sensitive and thus virtual meeting would not be suitable.
However, speakers Ken Lusaka (Senate) and Justin Muturi (National Assembly) are expected to issue guidelines on virtual committee meetings, possibly opening the way for online meetings.
Already there were simmering tensions among allies of President Uhuru and the former Prime Minister over the distribution of 70 constituencies.
Raila’s troops have been agitating for the Bill to be amended so the constituencies that have favoured Uhuru’s backyard be redistributed.
Some of the changes contained in the Bill such as creation of the 70 new constituencies must be effected a year to the August 2022 General elections.
National Assembly Speaker Justin Muturi insisted the House will start debate on April 1 whether the joint teams have the report or not.
Last Tuesday, the Speaker ordered the committee to table its report on April 1, adding that the Bill will proceed to the next stage whether the report is tabled or not.
“Let me tell you that I am aware of the status of the draft report of this committee. I know that they have already embarked on report writing. However, let me tell you that you can call all manner of experts from heaven but you must table this report here,” he said.
“I want to order that the Bill be in the Order Paper for Second Reading on April 1,” he said.
However, it is still not clear whether the Bill will be debated on that date as the House will on Tuesday consider an adjournment motion as recommended by the President because of the coronavirus.
With the new development, promoters will have to shelve the strict timelines to a referendum, among other measures.
National Assembly Majority leader Amos Kimunya said the House will determine the fate of BBI when they meet on Tuesday.
Without giving details, the Kipipiri lawmaker said Parliament will deliberate on its Tuesday sitting and give a resolution on the way forward.
“We will decide on Tuesday,” he said.
Minority leader John Mbadi expressed confidence the BBI drive by Parliament will not much affected by the turn of events.
He said Parliament will only suspend sittings for a few days as it pursues on how to operate without endangering the lives of members and staff.
“I would assume that the programme of BBI will not be adversely affected,” Mbadi said.
Last week, the High Court barred President Kenyatta from assenting to the BBI Bill should it be passed by Parliament.
In the ruling, the five-judge bench that has been hearing consolidated petitions against the BBI process issued conservatory orders preventing actions by the President until determination of the petitions.
Lawyer Paul Mwangi who served as joint secretary of the BBI task force told the Star the court’s directive unlike the February one does not stop anyone from acting on the document.
“Basically, the court has failed to stop anyone from acting but instead suspended any assent that may be given on passage,” he said.
(Edited by V. Graham)