President Uhuru Kenyatta and ODM leader Raila Odinga on Saturday disowned a move by the joint parliamentary committees of the Senate and National Assembly to declare the proposal for 70 new constituencies unconstitutional.
This comes as the camps of the two principals also raised a possibility of “external interference” in the committees’ work by the Tangatanga wing of Jubilee Party, which is led by Deputy President William Ruto, a fierce critic of the Building Bridges Initiative (BBI) that birthed the Constitution of Kenya (Amendment) Bill, 2020.
Targeted for criticism are Siaya Senator James Orengo, his Nyamira counterpart Okong’o Mogeni and Rarieda MP Otiende Amollo, who signed the majority report. Both Mr Orengo and Mr Amollo did not respond to Sunday Nation enquiries on the issue.
For the two camps, the majority who made the declaration that the proposed new constituencies were unconstitutional were acting on their self-interest with a view to derailing the initiative but added the final say rests with the people at the referendum given the route chosen is that of popular initiative.
At the same time, it emerged that the principals had their allies to prefect the committee. For instance, Sunday Nation has established that the Leader of Majority in the National Assembly, Amos Kimunya, attended one of the committee meetings uninvited despite the joint team of legislators having decided not to allow non-members into their meetings.
“The only thing that could have brought him to the committee was to prefect members. Members were actually shocked,” said Makueni Senator Mutula Kilonzo Junior.
A day after the committee completed the report, the handshake brothers — Mr Kenyatta and Mr Odinga — separately hosted their legal advisors and other handlers at the State House and Karen respectively to review what it meant for the push to amend the constitution.
Mr Odinga through his spokesman Denis Onyango accused some members of ODM who sit in the joint committee of betraying the former Prime Minister and the BBI agenda.
“It is not possible to tell why a committee led by supposedly pro-handshake and BBI MPs chose to come so close to derailing the process and even killing the initiative. It has caused some mistrust that will take time to heal,” he said before adding, “We expect opposition to the Bill to come only from those who have always opposed the initiative, which is Tangatanga. ODM, Wiper, ANC and the President’s wing of Jubilee will pass the BBI. Mr Odinga is quite sure about that,” said Mr Onyango.
Mr Odinga, however, sought to reassure his supporters that the BBI plane, despite the turbulence, was well on schedule.
“The report remains what the ODM leader and the President envisaged. Mr Odinga is confident it will sail through Parliament with ease and give way to the President to put it on the road to referendum via IEBC,” he said.
Lawyer Paul Mwangi, Mr Odinga’s longtime adviser who served in the committee that drafted the Constitution of Kenya (Amendment) Bill, 2020, was equally critical of the majority report, and especially the ODM MPs who signed the report.
“In terms of law, they are definitely wrong. That I would say openly. There is no way a proposal to amend the constitution can be termed as unconstitutional,” said.
“Baba (Mr Odinga) is very clear about where he stands. Let people not say these things and purport that they are speaking on behalf of Mzee. A lot of these positioning are personal. They are not Mzee’s. That I can tell with confidence because of the discussions of law I have had with him. That is not his position but personal positions,” Mr Mwangi added.
The President’s camp dismissed the majority report that declared the proposal for 70 new constituencies unconstitutional, with Jubilee vice-chairman David Murathe saying it was a waste of time since the bill will proceed to a referendum, anyway.
“The report is meaningless. Whether the MPs agree with it or not, the fate of the Bill lies with Wanjiku (the voters). That is the law,” President Kenyatta’s confidante and who is also Jubilee party vice-chairman said yesterday.
Some sources in the joint committee told the Sunday Nation there is suspicion that DP Ruto, who is said to have been in constant communication with a number of committee members through proxies, may have influenced the final outcome contained in the majority report that now says proposal such as that of creating 70 additional constituencies contained in the Bill is illegal.
The concern in the handshake corner is that it becomes difficult to rally public support for the BBI bill in certain areas if the proposed constituencies are scrapped.
DP Ruto, who says changing the laws of the land should not be a priority at the moment, is happy to see the BBI ship run aground. He has said as much on the record. He also believes that if he manages to stand up to the push, it will give him enough political capital in the next General Election where he plans to run for president.
A feeling that DP Ruto may have already retained a number of Kieleweke and ODM MPs in the committee is fast-gaining currency among the handlers of Mr Kenyatta and Mr Odinga with a lawmaker being accused of leading the silent rebellion.
Mr Murathe accused MPs allied to Dr Ruto of harbouring a plot to kill the BBI by introducing changes to it on the floor of the House.
“They know it. The moment it is opened up, it ceases to be what was sent to county assemblies for approval in which case the initiative stops,” he said.
The former Gatanga MP said that by the Bill ‘merely proposing to create new constituencies’ did not mean it was removing the role of delimitation from the Independent Electoral and Boundaries Commission (IEBC).
“By the end of the day, the IEBC will have the final say on this,” he said.
MPs are divided on the role, if any, they have in the constitution making process especially in the popular initiative route with a number of them objecting to what they call ceremonial requirement to process the bill before it is taken to the people for a vote.
Soy MP Caleb Kositany, who is also DP’s de-facto spokesperson, told the Sunday Nation that their direct line of attack on the report is the additional constituencies and expanded Parliament which they want now to be streamlined before joining the BBI bandwagon.
“Of course a lot of illegalities are in BBI which conflict with the current constitution especially that additional 70 constituencies and this was said by Chebukati himself, so this BBI is just a con game, just a scam…additional constituencies are illegal because it is supposed to be done by Independent Electoral and Boundaries Commission (IEBC),” said Mr Kositany.
But he denied any role by the DP on the report. “We have no business with BBI, it is not our baby. BBI has its own promoters. It is suffering from several problems. If they have problems within themselves, let them solve them without including us, we have no negotiation on BBI, our position is known,” said Mr Kositany.
According to Mr Kilonzo, those accusing MPs of betrayal do not understand what the committees have done.
“The committees have endorsed the bill but have pointed out areas of concern. Let me be clear that no one is opposing the bill and we are also clear in the report that the bill cannot be re-opened for amendments. In any case, Parliament will not be approving the report but the bill. The report is just to guide the debate,” the Makueni senator said.
The finding that the creation of 70 new constituencies are unconstitutional divided the joint Justice and Legal Affairs Committee of the National Assembly and the Senate’s Justice and Human Rights.
Derail BBI process
Nairobi Senator Johnson Sakaja authored a minority report in which he argues that the use of the term ‘unconstitutional’ in the majority report “is extremist.”
“The issues raised are really of technical drafting and not substantive. The essence of a popular initiative is the substance of the decision Kenyans are being asked to approve or reject,” the Nairobi senator said in his minority report.
With the majority report to some appearing intended to derail the BBI process, Kiambu Senator Kimani Wamatangi was tasked with whipping the members to switch sides and endorse the Sakaja report. At least six members changed their signatures and sided with the minority report.
But as it became clear that the MPs’ role in the process is not substantive, the drive to have members switch and support Mr Sakaja’s report was shelved.
Mr Kilonzo Junior is blaming the confusion caused by the majority and minority reports on Mr Sakaja who he says came out to oppose the report at the eleventh hour after all the members had agreed to sign and forward a single report.
“It was not that there were camps. Sakaja announced his intention to author a minority report at the last minute,” he said.
Murang’a senator Irungu Kang’ata, a former majority whip turned-staunch Ruto supporter who faults the distribution of the new constituencies across the country, says the document should be opened up for consensus building.
“Mombasa County which has about 500,000 registered voters got three new constituencies whereas Murang’a with about 590,000 registered voters got one constituency, what was the criteria being applied?
“Tharaka Nithi, Embu, Nyeri and Nyandarua are getting none. Why is it that the principle of minimum price guarantee for key crops like tea and coffee grown in Mt Kenya was not embedded? How can we reduce the number of proposed nominated MPs to reduce the cost of a new Parliament? Why did BBI provide judges to be suspended by a mere complaint without an inquiry? These issues justify Tangatanga’s opposition to the BBI,” the lawmaker posed.
The reports and the bill are expected in Parliament any time.
Additional reporting by Onyango K’onyango