LAW CHANGE DISCOURSE

Why Muturi ruling may unsettle BBI reggae

National Assembly Speaker likely to veto promoters on procedure and authenticity of amendment bill

In Summary
  • At the start of the second reading on the BBI bill on Thursday, MPs raised a litany of questions on the procedure and authenticity of the legislation.
  • The future of the bill now rests in the hands of the speaker who sources indicate is poised to allow MPs to have their way in making corrections to the bill.
National Assembly Speaker Justin Muturi in his office on Monday, December 2, 2019.
National Assembly Speaker Justin Muturi in his office on Monday, December 2, 2019.
Image: EZEKIEL AMING'A

National Assembly Speaker Justin Muturi is Tuesday afternoon expected to deliver a major ruling that may further jolt the bill to amend the Constitution under the Building Bridges Initiative.

The future of the bill now rests in the hands of the Speaker who sources indicate is poised to allow MPs to have their way in making corrections to the bill.

Sources privy to the goings on say the Speaker had set up a team of advisers led by the National Assembly Clerk among other senior parliamentary officers.

“The Speaker in his decision may want to consider his ruling as a legacy communication during a constitutional moment,” a House official told the Star on Monday.

At the start of the second reading on the BBI bill on Thursday, MPs raised a litany of questions on the procedure and authenticity of the legislation.

The Star is reliably informed that the awaited decision may bring to a stop, further consideration of the bill in the House as it borders on the legality of the process.

Among the issues that the team Muturi put in place has considered and given a decision border on whether the BBI is a popular initiative as contemplated under Article 257 of the Constitution.

Also in consideration is whether the 47 County Assemblies follow the procedure and process contained in Article 257 in passing the Bill.

“The contentious issue in regards to this is that if not, what should follow next?” a member of the team advising the speaker said.

Also to be addressed in the ruling is whether the Bill meets the required Constitutional threshold before being introduced in Parliament on March 4, and if not, what next?

The advisory team is said to have sought to answer the question of how the Bill may offend the “basic structure” of the Constitution of Kenya 2010.

Also to be answered is whether the bill actually contains “unconstitutional” constitutional amendments as noted by the Justice Committee. And if so, what next?

Also to feature in the decision is the answer to the question of whether a Bill to amend the Constitution by popular initiative such as the BBI Bill can be amended?

The team sought to answer the question of; what is the value of conducting public participation on it as indeed done by the Joint Committee.

Muturi is also set to rule on which versions the House can vote on in the face of cases of variations in the version of the BBI Bills before the Senate and the National Assembly.

The speaker, a member of the team said, will also speak to the many pending court cases on the consideration of the BBI Bill currently before the Parliament.

On this, it is said he may ask Parliament to wait for the consolidated judgment before voting on the Bill in line with the sub-judice rule.

The speaker is also likely to checkmate the BBI if due process was followed in considering the bill, being one under a popular initiative.

“The question is; what is the procedure applicable to the consideration of a Bill, to amend the Constitution by popular initiative in the House like the BBI?”

“Why subject the Bill to First Reading, Second Reading and Third Reading? If the stages have to be followed, what is the voting threshold in each stage?”

Constitutional experts hold that a bill under a popular initiative cannot be amended; with others arguing that it is impossible to amend or correct typographical errors.

Former MP Abdikadir Mohamed, lawyers Ekuru Aukot and Bobby Mkangi  said there was a problem with the two Houses passing different versions of the BBI bill.

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

He thus argued that senators or Parliament generally can do as it pleases since the Bill does not fit the definition of one under a popular initiative.

Mkangi said: "The Senate proclaiming it is looking at a different bill is dangerous enough. If they go forth to amend it, that will be another layer of traps,”

Aukot said Parliament as currently constituted has no legitimacy on account of failing to pass the gender laws as stipulated in the fifth schedule.

-Edited by SKanyara