House committee leaders call meeting on BBI plebiscite Bills

The leaders of two parliamentary committees have called a meeting on Wednesday to consider proposals on how to harmonise two controversial referendum Bills as they race against time to put in place a legal regime.

This comes as the contentious issues that some consider political traps emerged, with two opposing sides expected to include or throw them out of the final document.

A roadmap released by lawmakers allied to President Uhuru Kenyatta and Orange Democratic Movement (ODM) leader Raila Odinga set June 2021 as the time to hold the Building Bridges Initiative (BBI) referendum.

MPs are keen to have the law in place to secure the process.

As a result, the leaders of the Justice and Legal Affairs Committee (JLAC) and the Constitutional Implementation Oversight Committee (CIOC) have opted to explore ways of a common ground to end the impasse.

“It will be important if we go to the referendum with the law in place,” Nyamira Senator Okongo Omogeni told the Sunday Nation yesterday.

Mr Omogeni chairs the Senate Justice and Legal Affairs Committee, which has started holding meetings to prepare for the bill and other legislations that have to be enacted to implement the report.

The committee held its first meeting yesterday to consider the input of the House in the referendum bills once the harmonised bill is taken to the Senate.

Referendum law

The Wednesday meeting will bring together CIOC chairman Jeremiah Kioni and Kangema MP Muturi Kigano, who chairs the Justice Committee in the National Assembly.

“We have been having discussions on how to enrich one of the bills. We are at an advanced stage and the harmonised bill should be ready for tabling just after the debate on the President’s speech,” Mr Kioni said.

Efforts to get Mr Kigano were fruitless as his phone was switched off.

The two bills reduced have split Parliament in two camps, with MPs loyal to Mr Kenyatta and Mr Odinga on one hand and those backing Deputy President William Ruto on the other.

National Assembly Minority Whip Junet Mohamed has in the past been dismissive of the idea of a referendum law, arguing that the precedence of the last two popular votes is enough to see the country through.

“Kenya has had a referendum in 2005 and 2010. It if were possible, I would ignore this law and instruct the Independent Electoral and Boundaries Commission to what it did then,” he said, throwing his weight behind the bill prepared by the legal committee where he is a member.

However, House rules favour Mr Kioni in the present case as his bill would ordinarily be prioritised as it was the first to be tabled in the House.

Mr Kioni appeared to cling to this proviso yesterday, insisting that his bill should be given the priority and that those with problems with it be made to institute amendments.

Mr Kioni first tabled the The Referendum Bill 2020 on June 2.

Two weeks later, the JLAC, through its then chairman William Cheptumo, tabled the Referendum Bill, 2020 (Number Two).

The differences between the two proposed laws are stark, as each mirrors the public pronouncements of its political benefactors.

Draft bills

Mr Kioni’s bill wants the proposed referendum held on the same day as the 2022 General Election, while the JLAC one suggests it be held any time but 90 days after the promulgation of the bill.

Mr Cheptumo’s bill provides for a competing draft document that will simultaneously be subjected to a referendum.

“Where, in the case of an amendment to the Constitution by popular initiative, there is a divergent general suggestion, the promoters of that initiative shall formulate it into a separate draft bill,” Mr Cheptumo’s bill, which was published on May 29, says.

“Were more than one draft bill is to be submitted to the people in a referendum, each of the draft bills shall constitute an option with a separate symbol and answer.”

Should this bill be adopted, it means the pro-Ruto group, which is opposed to the BBI, will have to develop its draft bill which will be subjected to a plebiscite alongside the BBI.

The Cheptumo bill proposes a threshhold for any referendum question to be approved by a simple majority while giving county governments the power to hold their own plebiscites on grassroot issues.

“A question shall be approved by a referendum if at least 20 per cent of the registered voters in each of at least half of the counties cast ballots in the referendum; and the amendment is supported by simple majority of the citizens voting,” the bill says.

“A county government may conduct a referendum on, among other local issues – (a) county laws and petitions; or (b) planning and investment decisions affecting the region for which a petition has been raised and duly signed by at least 25 per cent of the registered voters where the referendum is to take place.”

The Kioni bill provides for a simple majority over all other questions except the ones contemplated in the issues captured in Articles 255, 256 and 257 of the Constitution.

Article 255 deals with supremacy of the Constitution, the country’s territory, the sovereignty of the people, the Bill of Rights and national values and principles of government, the term of the President, the independence of the Judiciary among others.

“It is tradition that whoever comes first is given priority,” Mr Kioni said, but added that he is open to other proposals.

Mr Mohamed, who is the Suna East MP, said he would be pushing for the Cheptumo bill “because it says a referendum can be held any time” .

While Mr Mohamed, an Odinga ally, said he is comfortable with the proposal in the bill that requires two draft bills to be subjected to a referendum, Nominated MP Godfrey Osotsi rejected that.

“The idea of two draft bills in the referendum is unacceptable,” Mr Osotsi said.

“The popular initiative is singular and there is no point of opening the door for some to commandeer others’ efforts. If you have a problem with one’s popular initiative, it is only proper that you start your own.”

Tharaka Nithi Senator Kithure Kindiki, a Ruto ally, dismissed the idea of a referendum Bill saying the country is in problems due to the poor performance of the economy.

“Every government the world over is working to prevent collapse due to the Covid-19 pandemic but ours is the only one that is politicking,” Prof Kindiki said, adding that priority should to be to protect millions of Kenyans from the ravages of the pandemic.

He said the legislations that should be of focus should be those of the ballooning national debt and how to revive the economy.

“There is nothing urgent with constitutional amendments,” Prof Kindiki said, adding that the ravages of the Covid-19 pandemic have complicated matters nationally.

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