- Whereas Uhuru's men want the process to proceed, those on the other side want the schedule dropped and the task left to the IEBC.
- The dilemma, however, is that such a move would amount to amending the BBI bill and possibly set the stage for litigation.
Image: EZEKIEL AMING'A
The special sittings that were tentatively slated for this week have aborted following sharp divisions in the joint committee of the National Assembly and Senate.
MPs were expected to pass the Constitution of Kenya (Amendment) Bill, 2020, through all stages on Tuesday, Wednesday and Thursday.
The lawmakers were also due to consider Senate amendments to the Division of Revenue Bill, 2021, and either adopt it or take the bill through mediation.
The House was also to receive a report of the Education committee on vetting of nominees for chairperson and member of the Teachers Service Commission.
A report of the vetting of Prof Fatuma Chege as Principal Secretary for Implementation of Curriculum Reforms was also expected to be tabled.
But sharp divisions emerged after MPs dropped the bombshell that the bill’s schedule detailing how the proposed 70 constituencies would be distributed is illegal.
This forced House and party leaders to postpone the debate.
The Justice and Legal Affairs Committee has issued two reports – majority and minority – that give divergent recommendations on the subject of constituencies.
Parliamentarians will thus be forced to take sides as the majority report is what will be tabled – but has the minority report (backed by seven MPs) as an annexure.
It is a fight that has already pitted President Uhuru Kenyatta’s allies on one side against those of ODM leader Raila Odinga and Deputy President William Ruto on the other.
Whereas Uhuru's men want the process to proceed, those on the other side want the schedule dropped and the task left to the IEBC.
The dilemma, however, is that such a move would amount to amending the BBI bill and possibly set the stage for litigation.
Raila's allies are expected to make a major announcement amid fears the House committee may have been infiltrated by anti-BBI forces.
House leaders and multiple sources intimated to the Star that it would be untenable to debate the report before a consensus is reached.
“Majority leaders will not call a special sitting unless they mitigate the divisions. People are throwing hands at one another. The discussions have spilled into brinkmanship,” an official said.
“Raila is holding the short end of the stick after realising he has been shortchanged. Uhuru is on his case to rein in his troops but people around him don’t want him to proceed with the process”.
The dissenting team wants the clause creating the 70 constituencies passed but the schedule removed and the work left to the IEBC.
The revelation that only 13 counties passed the correct bill has also thrown a spanner into the works, the challenge being how to deal with the errors.
Kangema MP Muturi Kigano, who is co-chair of the joint committee, told the Star on Sunday that the 170-page report should be available to members by close of business today.
He told the Star that the clamour for large shares of the new constituencies is the crux of the deadlock in the BBI process.
The MP said this was the case since constituencies have a bearing on the presidential election in 2022, but expressed confidence the report will sail through the House.
The MP said that much as he voted with the majority, he holds a contrary view “since the ownership of the document (BBI) is with Wanjiku (Kenyans).”
“Personally, I did not accept that the schedule can be unconstitutional. But because we are collegiate, we have to go with members.”
The Kangema MP said Article 1 of the Constitution gives power to Wanjiku – which she can exercise directly or through elected representatives.
“In this case, Wanjiku is exercising that power directly. There is nothing she cannot do. She can even decide to abolish Parliament.
“If they decide to put a schedule of the constituencies, it is their power and there is no unconstitutionality that can be visited on Wanjiku being the ultimate owner of the whole process,” Kigano said.
“Who am I or my committee to say that Wanjiku cannot do anything? She can abolish the Judiciary, IEBC. You can’t censure her.”
Kigano holds that the BBI bill cannot be treated like an ordinary bill, adding that the errors in the document are of no consequence.
But his Tharaka counterpart Gitonga Murungara said the fact that there is a minority and majority report is evidence enough of the deep fissures in the House.
“If there are two reports, then it means we are divided. We are not unanimous. The majority has said there is nothing wrong with the 70 constituencies, but the schedule is illegal since that is the work of the IEBC,” the Tharaka MP said.
“Let’s be frank on this, even the courts will declare the schedule unconstitutional. Whichever way we do it, it will not go past the courts. The work of delimiting boundaries rests with the IEBC.
“If you propose to amend the Constitution in a manner that is unconstitutional, then you will be arrested by the court. Even for Wanjiku, are they overthrowing the Constitution? Can we allow Wanjiku to pick a million signatures to overthrow the Constitution,” Murungara said.
Whichever direction the lawmakers will take the bill, experts are warning that the BBI process is exposed to a litany of legal land mines.
Lawyers say the intrigues may see the whole law change process grind to a halt, especially with the view held by the Kigano and Nyamira Senator Okongo Omogeni-led team.
Constitutional lawyer Bobby Mkangi earlier said the variances create 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 air,” he said on reports only 13 counties passed the correct bill.
Excerpts of the report show that MPs said the delimitation role is provided for in Article 89 (2), which is not proposed for amendment in the Bill.
“The committee observes that the unconstitutionality of the schedule is due to the fact it seeks to do what is constitutionally vested in the IEBC without amending Article 89(4) of the Constitution,” sections of the report seen by the Star read.
“Nothing bars the IEBC from continuing with its mandate under Article 89 irrespective of the schedule as the Constitution of Kenya mandates it to do so between 8-12 years from the last review.”
Nairobi Senator Johnson Sakaja in his dissenting opinion holds the view that Kenyans have a right to propose amendments to the Constitution.
He holds that under a popular initiative, Kenyans have the right to propose a different manner in which delimitation may be undertaken.
“The allocation of constituencies as set out in the proposed Second Schedule to the bill remains the proposal or idea of the promoters.
“There can be no justification for Parliament to purport to oust this proposal on grounds of legal technicalities,” the senator said.
“This would amount to usurpation of the constituent sovereign power, which belongs to the people.”
But Murang'a Senator Irungu Kang'ata has questioned the rationale used to allocate the constituencies.
He refused to append his signature to the report citing fundamental flaws in the document.
The court injunction that stopped the IEBC from conducting a referendum to implement the BBI also came into play amid arguments it defeated the urgency of the sittings.
The postponement was guided by the principle that county assemblies have a more pronounced role in the BBI process than Parliament.
Also of concern was the reactions the sittings would elicit among Kenyans in the face of the ravaging effects of Covid-19.
“The quagmire is that there is no consensus. What is the point of proceeding with the sittings that may end up dividing Kenyans further?”
MPs are scheduled to resume on May 4 from the recess, which followed President Kenyatta’s pronouncement of restrictions to prevent the spread of Covid-19.
The Speaker cannot call for a special sitting before circulating the report to the members following a resolution the House made before the recess.