It’s D-Day: Fate of BBI Bill to be known today

Muturi and Lusaka

National Assembly Speaker Justin Muturi and his Senate counterpart Ken Lusaka.

Photo credit: Jeff Angote | Nation Media Group

What you need to know:

  • The promoters of the Bill have warned against any attempts by Parliament to amend the document.
  • The biggest issue is whether or not lawmakers can amend a Bill to amend a Constitution by popular initiative.

All eyes will today be on National Assembly Speaker Justin Muturi and his Senate counterpart Ken Lusaka when they are expected to make a ruling on whether or not MPs can amend the Building Bridges Initiative (BBI) Bill.

MPs in both the Senate and the National Assembly pushed to make amendments to the Bill, with some senators suggesting specific amendments to the constitutional amendment Bill that seeks to alter Kenya’s governance system, create 70 extra constituencies, a 50-50 representation in the Senate in terms of gender as well as increase allocations to counties to 35 per cent of national revenue, among others.

The promoters of the Bill, a process borne out of the March 2018 Handshake between President Uhuru Kenyatta and ODM leader Raila Odinga, have warned against any attempts by Parliament to amend the document.

Sources within Parliament told the Nation that Mr Muturi has set up a solid team led by Clerk of the National Assembly Michael Sialai and other senior parliamentary legal officers to assist in crafting the landmark ruling that will guide future amendments to the Constitution through popular initiative.

Mr Muturi, according to the source, has narrowed down the numerous issues raised by MPs to seven and will be giving guidance as the debate of the Bill is expected to end today  and then lawmakers take  a vote.

The biggest issue is whether or not lawmakers can amend a Bill to amend a Constitution by popular initiative; and if not what the value of public participation was; whether BBI is a popular initiative under Article 257; and whether county assemblies followed procedure in considering the Bill, and if not, what should happen next.

Mr Muturi is also expected to rule on whether BBI Bill met the required constitutional threshold before being introduced in Parliament on March 4 and if not, what next; as well as provide guidance on whether the Bill offends the basic structure of the Constitution of Kenya 2010... And does it actually contains unconstitutional constitutional amendments as noted by the Justice Committee? If so, what next?

Typographical errors

Further, the Speaker is supposed to rule whether Parliament should await the pending cases lodges in court challenging BBI before voting on the Bill in line with the sub-judice rule.

At the Senate, Mr Lusaka will be faced with questions on how to treat amendments proposed by Murang’a Senator Irungu Kang’ata, his Kitui counterpart Enoch Wambua, and Elgeyo Marakwet’s Kipchumba Murkomen.

In the past, the two speakers have issued joint rulings on the BBI. By yesterday, it was not clear whether they will adopt the same procedure now.

While some MPs in the National Assembly have called for the document to be edited to remove typographical and grammatical errors, senators were last week pushing for these corrections in addition to the removal of what they said were unconstitutional clauses, a move that is likely to open up the Bill to legal questions in court.

“If we allow for the re-opening of the document, it will be the end of BBI. Parliament has to come to terms that their role here is not final. It is the people who will have a final say on the document in a referendum,” BBI Secretariat Joint Secretary Paul Mwangi said in a recent interview, warning against any amendments either at the committee stage or on the floor of the two Houses.

Given these questions, Senate Speaker Ken Lusaka and his National Assembly counterpart are expected, as the first business of the Houses before debate, to make a ruling on whether or not the MPs can tinker with the Bill at this stage.

Yesterday, Mr Kang’ata and Mr Wambua said they were ready to prosecute their proposed amendments if Mr Lusaka allows them.

“I will pursue my proposed amendments. I feel this is the time to remedy great injustice that has been visited into Mt Kenya by BBI on matters constituencies,” said Mr Kang’ata, who wants a redistribution of the proposed 70 constituencies.

Pro-BBI team

Mr Wambua, who argues that Parliament cannot be gagged even in a popular initiative process to amend the Constitution such as BBI, said Parliament will be abdicating its responsibility if it declared unconstitutional some sections of the Bill, yet pass it as is.

The Kitui senator also argues that it was illegal for the BBI team to distribute the proposed constituencies among 28 counties, a function he said should only be done by the Independent Electoral and Boundaries Commission (IEBC).

“I will pursue proposed amendments to the BBI on the floor of the Senate tomorrow (today). I am waiting for a ruling from the Speaker on the fate of those amendments,” Mr Wambua said yesterday.

Speaker Lusaka has gazetted today, tomorrow and Thursday as special sittings for the Senate to exhaust its debate on the Bill, after which they will take a vote.

The National Assembly, on the other hand, resumes normal sittings today after a recess following rising cases of Covid-19, with BBI being on top of its agenda.

The BBI Bill will be considered to have passed in both Houses if a majority of the members (at least more than half), pass it.

The pro-BBI team is, however, confident that the Bill will sail through as is, with no amendments.

In a report tabled in the two Houses last week, a joint committee asked the House not to amend the document.


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