BETWEEN A ROCK AND HARD PLACE

BBI bill uncertainty as lawmakers reconvene to conclude debate

Senators yet to agree on whether to correct typographical and referential errors in the bill before them

In Summary

•Majority leader Samuel Poghisio said the decision will be made on the floor by all members even as he admitted sharp divisions in opinion on whether the House can amend the bill.

•The joint justice and legal affairs committee that scrutinized the bill with the help of legal experts, identified several errors in the bill tabled in the senate.

President Uhuru Kenyatta reads the BBI report
BBI: President Uhuru Kenyatta reads the BBI report
Image: /BRIAN OJAMAA

Uncertainty continues to surround the fate of the BBI bill in Parliament even as the legislators reconvene to determine its destiny.

Senators are yet to agree and seem caught up between a rock and a hard place on whether to correct typographical and referential errors in the bill currently before them.

Majority leader Samuel Poghisio said the decision will be made on the floor by all members even as he admitted sharp divisions in opinion on whether the House can amend the bill.

“There are those who are saying we can correct only the form and not the substance. Others are saying we pass it as it is and it can be done on the printing day,” he said.

The joint Justice and Legal Affairs Committee that scrutinised the bill with the help of legal experts identified several errors in the bill tabled in the Senate.

While the panel termed the errors as minor and do not affect the substance of the bill, legal experts have argued that errors mean that the two houses of Parliament are debating different bills.

“Debating different bills will throw the entire exercise into shambles because they are supposed to be debating one bill,” lawyer Bobby Mkangi, a member of the committee of experts that midwifed the 2010 constitution, said.

“The fact that they are already looking at two versions, I suspect, people are waiting to rush to court to have the exercise nullified.”

Matters have been complicated by suggestions from some quarters that Parliament cannot change even a comma in the document that is developed through a popular initiative.

“We reject any attempt to alter that bill whether the alteration is for grammar, flow of sentences, wording of law or semantics,” Ugunja MP Opiyo Wandayi said.

However, Senate JLAC committee chairman Okong'o Omogeni (Nyamira) said the errors are minor and urged the majority leader to move a motion to correct the errors.

“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,” he posed last week.

Omogeni cited sub-clause 3(b) of the bill saying that the document that was read in the National Assembly was amending Article 97(2) while the bill that was read before the Senate was amending Article 97(3).

“On Clause 48 of the Bill, we observed that, whereas the bill was amending Article 188, on the marginal notes, reference was made to Article 189,” the senator said.

In the Second Schedule of the bill, the committee also observed that Clause1 (1) of the Bill that was read before the National Assembly was amending Article 89(7) while the Bill that was read before the Senate, was amending Article 87(7).

“What we are saying is, the Majority leader who has moved this Bill, has an option of moving an amendment to correct the error of form,” he said.

Yesterday, Poghisio said he would prefer the House to adopt recommendations by the committee and correct the errors of form without touching on the substantive issues propagated by the promoters.

“It is a matter which as a house we must look at. The committee is made up of all-out lawyers and they have all recommended. So, it is not for the leadership, it is still a matter under debate and there would be a vote,” he said.

The senators are resuming debate on the bill on Tuesday morning after speaker Kenneth Lusaka gazetted three-days special sittings this week to among others dispense with the consideration of the bill.

Minority Chief Whip Mutula Kilonzo Junior said the leadership and the House as a whole have not taken a position on whether or not to amend the document.

“Ideally, the person who is supposed to move the amendment would do so at third reading – committee. He will give notice of amendment. That is when we will have a debate which ends in rejection or approval,” he said.

The Makueni senator opined that the heated debate on the House should change the bill that has been blown out of proportion, adding that it has been hijacked by those opposed to the initiative to a political statement.

“It is not ideally the legality of the amendments as to the question whether we can amend or not. Or whether that amendment would go through or not.”

“That is not it. It must be looked at from the perspective that this is an opportunity for those who are opposed to the bill to send a message,” he said.

Muranga Senator Irungu Kangata reckoned that Parliament should amend the bill, adding that under Article 3(1) of the constitution, it has the responsibility to defend the Constitution.

 

Edited by Kiilu Damaris