•The debate appeared to shape up with allies of the President and ODM boss Raila Odinga uniting to support the Bill.
• Kirinyaga Senator Charles Kibiru, a close ally of the President, teamed up with his ODM and Wiper colleagues in drumming up support for the Bill.
Bungoma Senator Moses Wetang'ula on Tuesday jumped on the bandwagon pushing for amendment of the BBI Bill as fault lines emerged in the Senate on the third day of debate.
In a surprise U-turn, the Ford Kenya leader, a principal in the One Kenya Alliance, said to be enjoying the blessings of President Uhuru Kenya, said the Bill contains several provisions that will erode the gains the country has made.
Wetang'ula, who has been a chief proponent of the BBI initiative, said some provisions roll back on progressive gains and should be changed by Parliament to realign them to the Constitution.
“That is why I don’t agree with proponents that we cannot amend this Bill. If you read Article 257 to the letter, nothing ousts the authority of Parliament to amend any bill, including a Bill such as this,” he said.
Wetang'ula pushed for amendments as the debate appeared to shape up with allies of the President and the ODM boss Raila Odinga uniting to support the Bill against a spirited fight by Deputy President William Ruto’s team to defeat it.
During the third day of debate on Tuesday, Kirinyaga Senator Charles Kibiru, a close ally of the President, teamed up with his ODM and Wiper colleagues to drum up support for the Bill.
Senators Steward Madzayo (Kilifi), Moses Kajwang'(Homa Bay), Beatrice Kwamboka (nominated), Naomi Shiyonga (nominated) and Rose Nyamunga (nominated) all threw their weight behind the Bill.
On the other hand, Tharaka Nithi Senator Kithure Kindiki, his Nandi counterpart Samson Cherargei, Meru's Mithika Linturi and Millicent Omanga (nominated) led the Tangatanga camp in criticising it and pushing to amend the document.
A similar push was, however, turned down by National Assembly Speaker Justin Muturi.
In his ruling, the Speaker told MPs that they cannot amend the Constitution of Kenya (Amendment) Bill, 2020.
He said any amendment shall negate the popular will of the people to directly amend the Constitution.
Muturi said alterations of the text of such a bill may only be allowed to correct errors of form or typographical errors before submission for assent.
The Speaker, in a ruling that followed a litany of questions by MPs, said the question on whether some sections of the Bill are unconstitutional, is premature.
The speaker further ruled that the Bill promoted by the Building Bridges Initiative is properly before the House.
He further held that no one — state organ or person — can stand in the way of the people’s desire to amend the Constitution as ascribed in Article 1 of the supreme law.
Muturi directed that the threshold for voting on the Bill during the second and third readings would be a minimum of 176 members.
Voting on the bill shall be by roll-call, with arrangements being made for members to vote virtually due to the Covid-19 situation.
On the many court cases challenging the BBI, Muturi held that there was no court order directed at Parliament with regard to consideration of the Bill.
The speaker further said he was satisfied that adequate public participation was undertaken in respect of the Bill, being a popular initiative.
Muturi said the BBI Bill seeks to change sections of the Constitution that need a referendum to implement.
But it was Wetang'ula’s fierce criticism of the Constitution of Kenya (Amendment) Bill, 2020 that took many by surprise.
The Bungoma senator, a principal in the moribund Nasa coalition, has been part of the One Kenya team that comprises Baringo Senator Gideon Moi, ANC boss Musalia Mudavadi and Wiper’s Kalonzo Musyoka.
The team has been hosted at State House and at one time issued a joint statement with the President, Raila and Kitui Governor Charity Ngilu.
On Tuesday, Wetang'ula took issue with the second schedule of the Bill that creates 70 constituencies, creation of a Judiciary Ombudsman, scrapping of 47 woman rep positions in the National Assembly and creation of the Youth Commission.
“I don’t understand why we are creating a youth commission. We have so many laws that govern our youth. Kenyans must learn to understand that youth is neither a disadvantage nor a disability. It is a transit state in human life,” he said.
The vocal lawmaker, a lawyer by profession, questioned the constitutionality, rationality and criteria for creation and allocation of 70 constituencies.
“I went through all the submissions from the 47 counties. I have not found anywhere, a request by any Kenyan for 70 additional constituencies,” he said.
“But even in creating the 70 constituencies, we go ahead to violate other provisions of the Constitution. Delimitation of boundaries of constituencies and wards is an exclusive constitutional preserve of IBEC,” he said.
“What the proponents have done, they have sat somewhere without any justification and decided that Kenya deserves 70 constituencies and allocated them without any rationale. This is not right,” he added.
Last week, Senators Okong’o Omogeni, (Nyamira), James Orengo (Siaya), Petronilla Were (nominated), George Khaniri (Vihiga), Kipchumba Murkomen (Elgeyo Marakwet) and Aaron Cheruiyot (Kericho) poked holes in the Bill.
While Omogeni, who co-chaired the joint parliamentary team that considered the Bill, pushed for rectification of typographical errors, he pointed to several flaws in Bill, terming some provisions unconstitutional.
During the debate on Tuesday, he said the process through which the Bill had been developed and driven does not qualify to be classified as popular initiative.
“How will I support the Bill that interferes with the independence of the Judiciary by introducing an ombudsman nominated by the Executive, vetted by Parliament to spy, intimidate and harass judges and roll back on the independence of the judicial arm?
“My conscience will not allow me to support a bill that claws back on the democratisation of the police,” he said.
Cherargei said, “I do not support this Bill for the following reasons. One, when you look at this Bill by the promoters, it says they collected the views from Kenyans. But no one has shown us what really Kenyans want or how these ideas were collected.”