- Some lawyers say the situation presents a potential legal nightmare.
- Others argue it depends on the extent to which the variances affect the content of the bill.
The BBI process could grind to a halt following revelations that county assemblies may have debated different versions of the Constitution Amendment Bill, 2020.
Experts hired by Parliament to review the bill said only 13 county assemblies received the right version of the legislation for consideration. At least 43 county assemblies approved the bill.
Variances were also cited in marginal notes and references to articles that the Constitution of Kenya (Amendment) Bill, 2020, seeks to amend.
Some lawyers say the situation presents a potential legal nightmare. However, others argue it depends on the extent to which the variances affect the content of the bill.
Constitutional lawyer Bobby Mkangi said if, indeed, only 13 county assemblies considered the correct version of the bill, then the rest considered what is constitutionally strange and therefore null and void.
“It puts the entire process into disarray if not to a complete stop because one can argue the rest considered thin air,” Mkangi said.
He said the possibility of the process grinding to a halt was quite high if challenged in court owing to the gravity of the purported variances.
Makueni Senator Mutula Kilonzo Junior, who is a member of the joint Parliamentary committee reviewing the bill, said the variances “are a big issue.”
...it creates a big constitutional issue. It puts the entire process into disarray if not to a complete stop because one can argue the rest considered thin airLawyer Bobby Mkangi
Lawyer Paul Mwangi, former BBI joint secretary, said the IEBC couldn’t have sent different versions because the BBI team sent only one bill.
He said if it was true the versions were different, it would then be a case of “very serious criminal offences against the Constitution.”
“It will be a treasonous act if someone sabotaged the process. Unless we are saying someone interfered with the chairman’s annexure and put some funny things…which is not likely,” Mwangi said.
He maintained that there was only one bill that could have been at the IEBC, the very one that went with signatures, adding that there is no room for any other bill.
Mwangi reiterated that the draft bill submitted with the signatures is what goes to the county assembly once certified to have met the set threshold.
“The draft bill is delivered to the county assemblies by the IEBC. Even the possibility that they could be circulating different versions is impossible since officially they have one document,” the lawyer said.
Lawyer Charles Kanjama said: “If they are clerical changes, that is not a legal minefield but if they are substantive, affecting the contents of the document, then that is a legal minefield.
“If you said Article Two instead of Article Three and it was self-evident you are referring to Article Three, it can be treated as a typographical change that is not significant. But if you are changing content, then that is significant”.
Even so, the situation puts the Independent Electoral and Boundaries Commission on the spot, being the body mandated to communicate the bill to the assemblies.
IEBC chairman Wafula Chebukati, however, maintained that the commission received printed hard copies of the draft Constitution of Kenya (Amendment) Bill, 2020 from the promoters.
“The Commission forwarded the same to the speakers of the 47 county assemblies as well as Speakers of the Senate and the National Assembly,” he told the Star on Wednesday.
National Assembly Majority leader Amos Kimunya told the Star that the problem could be coming from “two typographical errors which were picked and corrected”.
“It looks like IEBC had the two versions of the bill - the corrected one and the first draft it received. After correction and submission, they may have printed two versions of the bill.”
The Kipipiri MP, however, said only the IEBC can explain how they sent different bills yet they were given one. “The saving grace is the typos are minor and would be corrected anyway before assent.”
The joint legal committees of Parliament are faced with the hurdle of how to harmonise the different versions of the bill.
The general principle of a popular initiative is that any amendment midway could present a legal tussle.
Ndaragwa MP Jeremiah Kioni said: “The question is, who was sending the bills? They were coming from the IEBC. They could have only sent the bill they received.”
Kioni, who is chairman of the Constitution Implementation Oversight Committee, warned that the claims could be acts of propaganda by anti-BBI forces.
“We must ensure we are not introducing propaganda. I believe those who were unable to say ‘No’ want to send conflicting statements to create suspicion and doubt in the system…that would be it.”
On the implications of the variances, he said: “The bill that went to the county assembly needed to be the one that had all the changes they wanted.”
Minority Leader John Mbadi said the bills introduced in the houses were scrutinised by the legal team.
“The speaker said only two counties did the wrong bill. Where is the authority of those media reports? It is speculation unless the speaker communicates.”
Edited by Henry Makori