- While members of the National Assembly appeared to agree that Parliament cannot tinker with the bill, senators are pushing to amend the document.
- Some proposed amendments will erode the fundamental spirit and structure of the current Constitution.
The fate of the Constitution of Kenya (Amendment) Bill, 2020, currently being debated in Parliament now hangs in the balance.
While members of the National Assembly appear to agree that Parliament cannot tinker with the bill, senators are pushing to amend the document.
In a move that could strike a blow against the BBI architects, President Uhuru Kenyatta and ODM leader Raila Odinga, the senators said the bill has "several fundamental flaws" that should be corrected before it is taken to a referendum.
The senators, in a rare show of political camaraderie, put aside their political affiliations and appeared unanimous that the bill cannot be subjected to a referendum without specific changes.
The lawmakers said besides typographical and referential errors, the bill has several unconstitutional clauses that Parliament must change before it is subjected to a referendum.
Some proposed amendments, they added, would roll back the gains the country has made and erode the fundamental spirit and structure of the Constitution.
Nyamira Senator Okong’o Omogeni, a Raila ally who co-chaired the joint parliamentary team that considered the bill, sparked the heated debate after he picked holes in the bill. The senior counsel pointed out the errors and the alleged unconstitutional clauses.
“How will we look in the face of Kenyans if we take to them a bill that has errors?” Omogeni posed.
He cited clause 13 (b) of the bill that seeks to amend Article 97 of the Constitution.
The bill in the Senate, he said, erroneously makes reference to clause (3), while that in the National Assembly correctly makes reference to clause (2).
In fact, there is no clause 3 in Article 97 of the Constitution as referred to in the BBI bill before the Senate.
“I am sure that even the President and Raila, the owners of the handshake, are not going to kill us before we have corrected these areas. The bill being considered in the NA does not have these errors,” he said.
The legislator went ahead to identify unconstitutional clauses in the bill. He cited proposed creation of 70 constituencies, terming the schedule creating them unconstitutional. He also questioned the method used to allocate the constituencies to some 28 counties.
Murang'a Senator Irungu Kang'ata said the schedule creating the constituencies does not indicate the schedule to which it is anchored. He argued that the bill should be amended or struck out in totality, saying the irregularities and illegalities contained therein are fundamental.
“We do have two bills; one before the National Assembly and the other before the Senate. Those are not simple typographical errors.
“There is nothing that stops this House from removing all amendments that are unconstitutional and taking to the people constitutional amendments,” he said.
Petronilla Were (nominated), George Khaniri (Vihiga), Kipchumba Murkomen (Elgeyo Marakwet), Aaron Cheruiyot (Kericho) and Enoch Wambua (Kitui) said Parliament should be allowed to amend the bill.
“I have gone through Article 257 and there is nowhere that Parliament cannot amend the bill that comes from the people. We should have an opportunity to make these changes to this bill,” Were said.
The ANC senator said the bill weakens the Senate, erodes gains made by women and has no clear provision on how it will end divisive elections as propagated by its promoters.
Khaniri said, “There are certain good things, but there are some sections that, in my opinion, Parliament should be given an opportunity to amend."
Cheruiyot said, “I have listened to people attempt to limit our mandate. That our duties is only limited to correcting typographical errors. I don’t believe Kenyans can elect people only to come to correct spelling errors.”
Nairobi Senator Johnson Sakaja, however, differed with his colleagues, saying Parliament cannot usurp the sovereign right of Kenyans.
“If the intention of Wanjiku is clear, you cannot say it is unconstitutional. All sovereign power belongs to the people. A referendum is one of those events where people exercise their sovereignty,” he said.
However, as the senators put aside their political differences and pushed to amend the bill, politics of Tangatanga and the pro-Uhuru and Raila faction played out in the sister house, with the latter calling for rejection of the proposed amendments.
The factions, however, agreed that Parliament has no constitutional mandate to amend or alter the Bill. Kangema MP Muturi Kigano, who co-chaired the team that considered the bill, said amending the bill would amount to an affront to the sovereignty of the people.
“This House has no power to amend or alter the bill in its present form. In fact, it does not even have residual power to amend or interfere with the structure or architecture,” Kigano said.
His vice chair Otiende Amollo (Rarieda) also concurred on the limits of the House in a bill resulting from a popular initiative.
“It is important to note that both Houses approve the bill without any amendments. The committee agreed that a referendum is a must,” Amollo said.
“People can change whatever they want. Parliament has no powers to amend. This bill belongs to the people and that is why we are a conveyor belt from the people to the President and from the President to IEBC,” Kiminini MP Chris Wamalwa said.
Ugunja MP Opiyo Wandayi called for the passage of the document, saying the drive should not be linked to 2022 succession politics.
“Those of us who want to bring 2022 issues, I am sorry for you, 2022 will come and go, but this Constitution will survive,” Wandayi said.
Tangatanga MPs called for complete rejection of the bill, terming it an unnecessary burden on struggling Kenyans.
Mathira MP Rigathi Gachagua termed the bill discriminatory and not a priority at a time many Kenyans are finding it hard to put food on the table because of the Covid-19 pandemic.
The outspoken Ruto ally said the manner in which the proposed constituencies are distributed is not only discriminatory but also impoverishing.
Malindi MP Aisha Jumwa, another close DP ally, said the reported discrepancies in the bills taken to counties are enough reason to reject the initiative.
“People are plunged in depression and we are here to discuss how to overburden Wanjiku who is already suffering. We need to be considerate for our people first,” Jumwa said.