• The commission has since submitted the draft Bill to all the 47 county assemblies for consideration within three months from the date of submission.
• With that, it brings to focus the legislative processes and procedures that will follow in the county assemblies where the Bill is expected to be approved or rejected.
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The IEBC has verified that the BBI is supported by at least one million signatures of registered voters.
This means it has met the required constitutional threshold to proceed to the next stage of approval.
The commission has since submitted the draft Bill to all the 47 county assemblies for consideration within three months from the date of submission.
With that, it brings to focus the legislative processes and procedures that will follow in the county assemblies where the Bill is expected to be approved or rejected.
In the absence of a referendum law —but with the experience of Punguza Mizigo popular initiative promoted by Thirdway Alliance Kenya — we can outline the stages the draft Bill will go through before its enactment.
It is also important to note that Makueni, Nandi and Kericho county assemblies sought the Supreme Court advisory opinion on various issues in regards to this process. Key among the issues were public participation, the approval role of the county assemblies and the referendum question, which was directed to the Attorney General for an opinion. The AG has since given his opinion and the parties guided accordingly.
Here is what we expect to see from the county assemblies in regards to the BBI Bill.
The Constitution of Kenya (Amendment) Bill, 2020 shall be considered as a special bill originating from the members of the public in the form of general propositions.
It will have a have a sponsor in every county assembly and this can be a member or a county assembly committee wishing to introduce the draft Bill in the House. Whoever it will be shall submit the Bill with its memorandum of objects and reasons to the county speaker for approval.
Upon receiving instructions from the member or a committee, the speaker shall refer the BBI draft Bill to the Clerk of the Assembly who will then consider legislative proposals therein and comment whether they conform to the Constitution and the law.
Given that this is a special Bill, meaning it is neither an ordinary or money bill originating from the Assembly, the sectoral committee shall not suggest any pre-publication amendments but shall proceed straight to the stages of the Bill.
The draft bill shall follow the following stages;
The First reading: The Bill shall be introduced in the assembly for the first time by the clerk reading its title. No debate or vote will happen at this stage. The Bill shall stand committed to the relevant Sectoral Committee for consideration, in this case Justice and Legal affairs Committee. The Committee shall facilitate public participation on the Bill through appropriate mechanisms in various wards of the county. This can be done by inviting submission of memoranda; holding public hearings; consulting relevant stakeholders; and consulting experts on technical subjects.
The Justice and Legal Affairs Committee shall take into consideration the views of the public while considering the Bill and while preparing its report to the assembly.
The committee shall then proceed to scrutinise the Bill by calling in the sponsor, inviting various stakeholders and later compile a report but shall not in any way propose any amendments to the Bill by themselves or by the public as such will defeat the essence of amendment by a popular initiative, rendering moot the over one million signature endorsements. Not even a comma shall be added or subtracted from the Bill.
Second reading: This is the debate stage, wherein the assemblies shall debate the merits and any demerits of the Bill. The debate shall follow the moving of the Bill by the sponsor and its seconding by any MCA. The debate shall focus on all aspects of the Bill, including its principles, objects and how its enactment into law is likely to affect the general citizenry.
The Justice and Legal Affairs Committee’s report also shall assist members to debate the Bill, particularly in grasping the views of the public and other relevant organs that may have made comments on the Bill through the Committee and the effects of the Bill on other laws.
At the end of debate, the speaker shall allow the proposer of the Bill to respond to any issue raised by the assembly and then put the question, that is, cause the Assembly to vote, to determine whether the Bill moves to the next stage.
Approval of the draft Bill: While the Constitution doesn’t make any stipulations as to the majority required to approve the amendment Bill, Section 20(1) of the County Governments Act, 2012 directs that the decision shall be determined by the majority of the members present and voting.
Article 257(6) provides that if a county assembly approves the bill, the speaker shall then deliver a copy jointly to the speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it.
Article 257 (7) further provides that if the Bill is approved by a majority of the assemblies, (in this case at least 24), the Bill shall then be introduced in Parliament without delay.
Whatever decision at the Senate and the National Assembly will not matter. The proposed amendment shall be submitted to the people in a referendum so that they can make the final decision.
Fredrick Okango is secretary general Thirdway Alliance Kenya