• The panel was co-chaired by Senator Okong’o Omogeni (Nyamira) and Kigano Muturi (Kangema MP).
• Opinion has been divided on whether Parliament can amend the Bill, and if so, to what extent.
Image: EZEKIEL AMING'A
All changes to the Constitution put forward in the BBI Bill should be subjected to a referendum, the joint Justice and Legal Affairs Committee has recommended.
They have advised against the President signing into law certain provisions of the Bill once Parliament approves the document.
In their report set to be debated on Wednesday, the committee said the Constitution of Kenya (Amendment) Bill contains several provisions that are interrelated.
“Attempting to separate them at the tail end of the process and not at the drafting stage would suffer the practical challenge and possibility of dismembering the bill and separating clauses that relate to each other only on the basis that some are referendum provisions and others not,” the report says.
Some politicians had suggested that President Uhuru Kenyatta should sign into law provisions of the Bill that do not require referendum once Parliament passes the Bill. The committee said the President should wait.
The committee also concluded that the Bill should be subjected to the referendum based on a single question.
It would be impractical to ask Kenyans to vote one way or the other on multiple questions, the team said.
“Proceeding otherwise through the route of multiple questions, would present constitutional, legal and practical difficulties in the identification of those questions,” reads the report.
Further, the committee said Parliament cannot amend the Bill as it is driven through a popular initiative.
“The committee, however, found out that pursuant to Article 257 (10) of the Constitution, Parliament cannot replace or usurp the people’s views on a popular initiative with its own,” reads the report in part.
“Thus, the ultimate authority regarding a popular initiative Bill rests with the people.”
The committee said Parliament's mandate in Article 94 of the Constitution is limited in Article 257 that provides for law change through a popular initiative.
The limitation aims to protect the sovereignty of the people as guaranteed under Article 1 of the Constitution.
But Parliament can correct any errors of form or typography that do not go to the substance of the Bill to harmonise it.
The panel was co-chaired by Senator Okong’o Omogeni (Nyamira) and Kigano Muturi (Kangema MP).
Initially, the team was divided on amending the Bill after the consultants identified errors in the versions sent to 32 county assemblies as well as the two houses of Parliament.
The experts cited clause 13 (b), clause 48 and paragraph one of the Second Schedule to the Bill for making wrong references.
“The committees further observed that some of the copies of the Bill submitted by the county assemblies to the speakers also contained the same inadvertent errors,” read the report.
The committee downplayed the errors as ‘typographical in nature’. They do not affect the meaning or substance of the provisions of the Bill.
(edited by o. owin0)