• A five Judge-bench comprising of Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Chacha Mwita have retreated to write the judgement after the petitioners and the defendants completed their submissions.
• The Judges ordered the IEBC against conducting or preparing for a referendum on the bill before the matter is dispensed.
Image: PSCU
A case pending in court now stands as the only remaining hurdle in the quest by President Uhuru Kenyatta and Raila Odinga to amend the 2010 Constitution.
A national referendum to pass or reject the Building Bridges Initiative’s Constitution (Amendment) Bill, 2020 promoted by the two handshake partners is tentatively scheduled to be conducted next month.
On Thursday night in the National Assembly, the Bill garnered 224 Ayes against 63 Nays giving the promoters a green light to forward the proposed changes to the Independent Electoral and Boundaries Commission.
However, the Senate is expected to vote on the same bill next week and it is widely expected to follow the same trend adopted by their counterparts in the National Assembly.
A five Judge-bench comprising of Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Chacha Mwita have retreated to write the judgement after the petitioners and the defendants completed their submissions.
The judges ordered the IEBC against conducting or preparing for a referendum on the bill before the matter is dispensed.
“We are waiting to be given notice on when the judgement will be issued,” Law Society of Kenya president Nelson Havi representing the petitioners told the Star on Friday.
The petitioners in the case challenging the BBI include economist David Ndii, Kenya National Union of Nurses, Thirdway Alliance, 254Hope, Justus Juma, Moraa Omoke, Isaac Aluochier and Muhuri.
Image: PSCU
Constitutional lawyer Peter Wanyama criticised the MPs for approving the Bill saying the proposed changes will have far reaching consequences in the society that will be felt by generations to come.
In a Facebook write-up which he authorized the Star to quote, the lawyer said the MPs voted to support the Bill for personal interests rather for the good of society.
“As a practitioner of constitutional law I have deeply studied constitutionalism and governance in developing countries; the inescapable conclusion that emerges is that leaders view the Constitution as an obstacle to the exercise of public power,” he said.
He added, “To them the Constitution is not an instrument for socio-economic and political control. It is an adjunct. They will amend it at the slightest opportunity to entrench absolute power, extend term limits, and control independent institutions.”
Wanyama argues that the Bill contains proposals which if passed in the plebiscite will erode the gains achieved in the current Constitution and also deal a blow to the rule of law.
He said an amendment of the Constitution in most cases will lead to further mutilation of the supreme law citing the Kenyan 1963 Constitution which was had a “fairly strong Senate and a quasi federal structure that was completely dismantled by 1966.”
“In the context of our deeply tribal political set the appointment and dismissed of Prime Minister will create political conflicts that we have seen in countries like DRC,” he argued.
He went on, “I make this observation because there is a clause in BBI which says that the President shall appoint the PM from the largest political party or coalition of parties in the National Assembly but if Parliament fails to approve the President can appoint a PM who his/her opinion has the confidence of Parliament; a fluid clause that is a recipe for chaos in politics.”
Wanyama holds the view that the threshold for amending the 2010 Constitution is very low noting that it should be a durable document which can only be amended “ when there is absolute consensus across the entire spectrum of the society.”
“The simple majority requirement for a bill to pass in Parliament is a low threshold that can be misused by the majority to impose unpopular ideas,” he said.
“Picture our MPs, they are not the kind of folks that you can trust to make rational decisions and reject ideas that are popular with the leaders but are a betrayal of the will of the people. These are not folks that can be trusted with fluid constitutional provisions,” he added.
But in a quick rebuttal to the argument advanced by Wanyama, Mathare MP Anthony Oluoch said the threshold set out in the Constitution in tight enough.
Defending the majority vote in the National Assembly, Oluoch-a lawyer also – said the legislators followed the laid down procedure saying it attained the pre-requisite two thirds.
“If you read Article 257 the vote by Parliament whether in the affirmative or negative still takes the bill to a referendum,” he said.
He added, “The House simply did that which the Constitution says they should do and nothing more. On this one Counsel please direct your dissatisfaction with that document to other quarters, perhaps the originators or promoters of the bill," he said.
"On Constitutionalism, I am also a student of Constitutional Law and am inclined to agree partially on argument about Constitutionalism," he added.