BBI enters crucial stage as lawmakers vote on bill

Senators are seeking to amend the bill, a move lawyers say will create legal challenges

In Summary

•The debate on the bill started last Wednesday and resumes on Tuesday in both houses before the legislators take a vote on the document.

•On Tuesday, members of the national assembly will resume normal sitting after recess with the first business being the conclusion of debate on the bill.

President Uhuru Kenyatta reads the preliminary BBI report at State House
BBI: President Uhuru Kenyatta reads the preliminary BBI report at State House
Image: PSCU

President Uhuru Kenyatta and ODM leader Raila Odinga will be holding their breath as the BBI Bill is discussed in Parliament where some lawmakers are pushing to amend the proposals.

The two Houses of Parliament are this week deciding on whether lawmakers can amend the Constitution of Kenya (Amendment) Bill, 2020 after heated debate last week.

While MPs appear to agree the House cannot change the bill, a near-unanimous call by senators to correct ‘typographical and referential errors’ and expunge ‘unconstitutional’ clauses could give the proponents sleepless nights.

The debate on the bill started last Wednesday and will resume on Tuesday in both houses before the legislators take a vote on the document.

On Tuesday, members of the National Assembly will resume normal sittings after recess with the first business being the conclusion of debate on the BBI Bill.

In the Senate, Speaker Ken Lusaka has gazetted three days of special sittings beginning Tuesday to among others conclude the consideration of the bill.

Though the Constitution provides that the bill would proceed to a referendum whether or not Parliament approves it, revelations of conflicting versions and the clamour to amend the document pose serious headaches to its proponents.

Senators argue that the bill has ‘fundamental errors’ that render the document ‘completely different' from the one in the National Assembly.

They want to make corrections.

“Experts said if we identify an error of form, we can correct those errors. I am not the author of the errors. I want this House to note that the Bill at the National Assembly does not have these errors,” Nyamira Senator Okong'o Omogeni said.

“How will we look in the eyes of Kenyans if we consider a Bill that has typing errors, and fail in our duty as members of the Senate in correcting this simple error?” Omogeni, who co-chaired the parliamentary team that considered the bill, posed.

The senior counsel argued that the errors do not change the substance of the bill hence the amendment would not change the intention of the promoters.

Opinions are varied on whether Parliament can change a constitutional amendment bill developed through a popular initiative. Even so, experts opine that the bills before the Houses must be the same.

Lawyer Bobby Mkangi and former President Uhuru’s adviser on legal matters Abdikadir Mohamed said that passing different versions of the bill in Parliament would throw the entire process into shambles.

“Debating different bills will throw the entire exercise into shambles because they are supposed to be determining one bill. The fact that they are already looking at two versions, I suspect people are waiting to rush to court to have the exercise nullified,” Mkangi said.

Abdikadir, a former MP, said Parliament is supposed to pass or reject a similar bill.

“Ideally, there should be a committee of the two houses that harmonizes the bill. It looks like there was a committee and they have disagreed…but there should be one bill,” he reckoned.

The senators, in a rare show of unity, are seeking to remove from the bill, several clauses which they said are in conflict with the Constitution.

For instance, they want the schedule creating the 70 proposed constituencies expunged saying it is unconstitutional as it usurps the IEBC to delimitate constituencies.

They also want the proposed creation of the office of judiciary ombudsman scrapped and an amendment to give police IG more powers removed.

Last Thursday, senators Enoch Wambua (Kitui) and Irungu Kang'ata (Murang'a) wrote to Lusaka seeking his permission to introduce amendments that could alter the contents of the bill.

Wambua sought to introduce five amendments, including the scrapping of the 70 constituencies and deletion of proposed new Article 203 (n) on proposed allocation of revenue.

“The role of IEBC which is a constitutional body can’t be usurped by a task force. Parliament must protect our constitutional institutions to entrench democracy,” Wambua told the Star.

Lusaka declined to comment on the lawmakers’ push to amend the bill that appears to have put him between a rock and a hard place.

“That [amending the bill] can only be dealt with in the house,” he told the Star.

In the National Assembly, the debate has divided the house along Uhuru, Raila versus Deputy President William Ruto allies.

While Uhuru and Raila men support the bill and are rooting for its unanimous passage, those allied to the DP are in an all-out venture to defeat it.


Edited by P.O