I hold the firm belief that as President, I can and indeed must engage authorised entities like Parliament. This letter is to request that Parliament considers all policy measures necessary and sufficient to fully actualise the promise of our Constitution
Opposition MPs have vehemently rejected President William Ruto’s push to amend the Constitution despite the goodies the law change proposes for their leaders Raila Odinga and Martha Karua.
In what now appears as a revenge against Ruto for having opposed the Building Bridges Initiative, Raila's troops say they will not fall for the sweeteners and laughed off the push as “bringing back BBI through the backdoor”.
The Azimio brigade who spoke in Parliament were emphatic that the President cannot initiate amendments to the Constitution through a popular initiative.
“Three of the proposals by President William Ruto to Parliament would require a referendum. They are beyond the contemplation of Parliament only even if we have two-thirds,” said Senior Counsel Otiende Amollo, the MP for Rarieda.
“For instance, to bring Cabinet Secretaries to the floor of the House, basically you are changing the composition and role of Parliament. This requires a referendum. If you are talking about meeting the two-thirds gender principle or even if you were to introduce the Leader of the Official Opposition successfully, you are then changing the role of Parliament.”
The law change push comes at a time Raila and Ruto are not seeing eye-to-eye, with the opposition chief leading anti-government rallies to force Ruto to “resign”.
Some of the Ruto proposals were seen as giving Raila and Karua a soft landing by creating an office of the Official Opposition Leader with perks from the exchequer.
But Raila's team says they are not interested, especially in the face of the country’s current economic woes.
Amollo and nominated MP John Mbadi led the onslaught, describing the Ruto bid as “mischievous”.
Mbadi claimed Ruto could be "testing waters" with the law change, especially now that he has near absolute majority in the National Assembly.
We should not allow any indication of an individual rolling back the democratic gains. There is a possibility one is testing the waters. Let us not allow the President to start testing waters by writing to Parliament to amend the Constitution
“The case we are dealing with is where Ruto as President is writing directly to Parliament. There is no consultation. We don’t know who he spoke to. It is a direct initiative,” Mbadi said, adding it would be wrong to encourage the President to initiate constitutional amendments.
“We should not allow any indication of an individual rolling back the democratic gains. There is a possibility one is testing the waters. Let us not allow the President to start testing waters by writing to Parliament to amend the Constitution,” the MP said.
Azimio’s major concern is that with some of their MPs having been trooping to State House, there was the possibility that the President once emboldened may make proposals for a life presidency.
Mbadi said the BBI, which was spearheaded by Raila and retired President Uhuru Kenyatta and which Ruto opposed, was the best shot at entrenching the proposals.
“The memo [Ruto communique] has failed in terms of process and principles of politics. Whereas my colleagues are struggling to distinguish Ruto's memo and BBI, there is no difference,” Mbadi said.
Ruto opposed the BBI – first through proxies and later directly - in a campaign that saw activists allied to Kenya Kwanza successfully challenge the ‘handshake baby’ in the courts.
But Ruto's foot soldiers insist Parliament had the mandate to amend the Constitution, and that some of the amendments could be executed without a vote by the people.
Leader of Majority Kimani Ichung'wah said the President was not seeking to initiate constitutional amendment but a general debate.
“This is for us to enable Kenyans to have that public discourse so that at the end of the day we have proposals on how we can amend the Constitution,” the MP said.
The Kikuyu MP said there was no way Parliament could run away from the responsibility and mandate to amend the Constitution, except those provisions that need a referendum.
“The President has sought we debate and make a decision on what we think is best. In my view, this debate will not only inform Kenyans on what we intend to do in amending [the law] but also invite Kenyans to participate,” Ichung’wah said.
He added that the Ruto team is “not seeking to create positions but deepen the country’s democracy.”
The President on December 9, 2022, asked Parliament to advise on how to change the law to help implement the two-thirds gender rule as well as entrench the Constituency Development, Senate Oversight, and NGAAF funds.
He also proposed to create the position of Leader of the Official Opposition and to have Cabinet Secretaries appear in Parliament to answer queries by MPs.
“I hold the firm belief that as President, I can and indeed must engage authorised entities like Parliament. This letter is to request that Parliament considers all policy measures necessary and sufficient to fully actualise the promise of our Constitution,” Ruto said.
The BBI had proposed, among others, the creation of the office of Prime Minister.
It also wanted Cabinet Secretaries to be appointed among MPs, and sought to entrench CDF and the Ward Development Fund in law.
Amollo said there was no way some of Ruto's proposals would not turn into a popular initiative, as they would need a referendum to implement.
“Right from the word go it will fail on two accounts. One, the Supreme Court judges pronounced themselves that in so far as this thing comes from the President, it will fall afoul of the court’s determination,” he said.
“It makes no difference that that was a popular initiative. If it is a parliamentary initiative, Ruto is not an MP. In both cases, it passes through Parliament.”
The MP added that Ruto's writing to the Speaker was wrong as the Speaker is a neutral entity; he should have channelled the memo to the Leader of Majority or an individual member.
He further argued that the introduction of the Official Opposition Leader “is a bad idea that is not well founded in constitutionalism and purpose as there is no government or opposition in Parliament.”
Amollo further pointed out that of the four issues, three expressly require a referendum. “Only that of CDF doesn’t need a referendum,” he said.
He stated that the others touch on the sovereignty of the people, the structure of governance, and the functions and composition of Parliament, hence will require a referendum.
The MP, a member of the Justice and Legal Affairs Committee that would consider the memorandum, said the President should brace for a long process, warning that, “It is not an easy path.”
He advised MPs to remove the bit of the memo that would require a referendum and pursue the changes of entrenching the CDF, Senate Oversight Fund, and NGAAF in the supreme law.
Funyula MP Wilberforce Oundo said, “A memorandum is more like an instruction by a superior body to another to act in a particular manner.”
Even so, in their defence, Ruto’s troops said the proposal was a mere request for Parliament to chart the law change path.
Ugenya MP David Ochieng’ said the President had “recognised the fact that Parliament has a big role to play in law reform.”
“Unlike BBI, he has involved Parliament in expressing his thoughts about the law change. I would look at the proposals for what they are and not who is moving them. Any of us can make the proposal,” he said.
Kangema MP Peter Kihungu said there was a need to separate what the President took to Parliament from how the BBI was introduced.
Tharaka MP Gitonga Murugara, who is JLAC chairman, said there was a distinction between the BBI and the memorandum.
“BBI was an initiative of the President – through a gazette notice and committee that proposed the amendments in the form of a bill.”
Murungara said the President has made recommendations in his two capacities - as President entitled on behalf of the people, and as a citizen with a right to make a parliamentary and popular initiative.
He said that much as the Maraga advisory remains law, he’d advise the committee to agree that there can be a mix of a presidential and parliamentary system – in reference to the proposed opposition leader’s office.
“I’ll be persuading my committee to agree that even if we have a presidential system, there are bits that marry our system with a parliamentary system. These are the bits we are going to use to bring this office,” Murugara said.
He said his committee would engage Kenyans on the proposals. “If Kenyans agree that Parliament should consider, then we will move to the next level to determine whether this is a parliamentary or popular initiative,” the MP said.
“At the time we agree is when we can decide which mechanism to progress this as a parliamentary or popular initiative,” said Kibwezi West MP Mwengi Mutuse.