Blame game over ‘fake’ BBI Bill

Ward representatives now want the electoral commission to explain how different versions of the Building Bridges Initiative (BBI) Bill were sent to county assemblies.

Reports that up to 34 assemblies might have been given a different version of the Constitution of Kenya (Amendment) Bill, 2020, exposes the process to legal landmines, some experts say. 

The assemblies insist that they debated and passed or rejected the document received from the Independent Electoral and Boundaries Commission (IEBC). 

Majority Leaders Caucus chairperson Peter Kilonzo and his County Assemblies Forum colleague David Kiplagat said the assemblies are not to blame for the errors identified by a joint committee of Parliament scrutinising the Bill.

“County assemblies are not the authors of the BBI document. The bills were dispatched to us from one source. We sought public views, debated, passed or rejected it and submitted certificates to the National Assembly and Senate,” Mr Kilonzo, who is the Kitui Assembly Majority Leader, told the Nation yesterday. 

“Instead of saying county assemblies debated the wrong document, we want to be told who dispatched different versions of the bills to the assemblies.”

Copies of the document

He said the assemblies did not change anything on the submitted document(s).

“Is this sabotage? Or could it be political?” Mr Kilonzo asked.

Mr Kiplagat said the IEBC and the BBI secretariat are to blame for the mess.

“You cannot blame the IEBC alone because it might have received the bill with errors from the secretariat,” Mr Kiplagat said.

He added that the Uasin Gishu County Assembly noted the errors during debate and returned an abstaining verdict. 

Last evening, IEBC distanced itself from the debacle saying the promoters of BBI had supplied all the copies of the document. 

IEBC chairman Wafula Chebukati said the commission on December 10 received from the BBI promoters six printed copies of the draft Constitution (Amendment) Bill 2020 and supporters’ details. 

Frustrate BBI process

“On 26 January 2021, the commission requested the BBI promoters for additional printed copies of the Bill for onward transmission to the county assemblies. On the same date, the BBI promoters delivered to the commission 57 printed copies of the Bill, out of which the commission submitted 47 copies to the county assemblies,” Mr Chebukati said. 

The Nation confirmed that the Bill Kilifi received from the IEBC had the same error as the one in Uasin Gishu.

Also to note is Nyamira, where National Assembly Speaker Justin Muturi, in a communication to the House, said what was submitted had “fundamental variance in many clauses compared to the draft bill submitted to that assembly by the IEBC”.

BBI joint secretary Paul Mwangi said the debacle could be a plot to frustrate the process in court.

“The Directorate of Criminal Investigation should come in. We want to know what happened from communication from the IEBC to the assemblies, the debates and the submission of the bills to Parliament by the 47 Speakers,” Mr Mwangi said.

He asked the National Assembly and Senate to consider the Bill as it is, arguing that the reported typos “can be corrected at a later date by the Attorney General”.

Minor typos

Only Nyandarua, Nyeri, Murang’a, Embu, Nakuru, Tharaka Nithi, Meru, Mandera, Turkana, Laikipia, Elgeyo Marakwet and Siaya, received the correct document, according to a list seen by the Nation.

Mr Bobby Mkangi, a constitutional lawyer, said the revelation could result in cases challenging the whole process.

“If it is proved that only 13 county assemblies had the correct version of the BBI Bill, questions could be raised on whether the 24-county threshold the Constitution demands was met,” Mr Mkangi, who was among the experts that drafted the country’s Constitution, said.

According to Mr Mkangi, it was not a defence to say the differences were only minor typos.

“In law, everything matters and a comma or conjunction ‘and’ ‘or’ makes a huge difference in interpretation. It is, therefore, difficult to just say we are correcting typos,” said Mr Mkangi.

This, as the joint committee grapples with what to do next on the Bill, with two options on the table — correcting the errors of form and typos now and tabling a “correct Bill” or tabling it as is, with the errors, to be corrected later through a motion tabled in both Houses.