The decision on whether to reopen the Building Bridges Initiative (BBI) report that is before the Joint Senate and National Assembly Legal Committee has split Orange Democratic Movement (ODM) leader Raila Odinga’s team.
The Sunday Nation has learnt that while Mr Paul Mwangi, who is Mr Odinga’s legal adviser, is against the reopening of the document or Parliament editing it, another section led by Siaya Senator James Orengo and Rarieda MP Otiende Amolo wants alterations made.
Mr Mwangi yesterday said reopening the document would deal the final blow to the BBI journey, adding that it would no longer be a popular initiative report but a product of Parliament. He said reopening the document by MPs or even changing a comma would render the BBI report illegal.
“If they amend the report, it will be a different document from the one passed by county assemblies. There will be confusion on which of the two should go for the referendum,” he said.
“Parliament should admit that it is the people who will have the final say on the document.”
Mr Mwangi, who served as joint secretary of the BBI Task Force, pointed the finger at people piling pressure on Mr Odinga to allow the reopening of the document.
“I have told Mr Odinga that if he allows the reopening of the report, it will be the end of BBI,” Mr Mwangi said.
“They want Parliament to have its way or poison the water so that the report does not end up with the people.”
He added that reopening the document would mean it has to be taken back to the county assemblies.
“County assemblies will demand to know where Parliament got the powers to edit the document,” Mr Mwangi said.
Mr Orengo’s team argues that reopening the document will have no effect as the intention of the law is not to make Parliament powerless.
He and Mr Amolo did not pick our calls or reply to text messages. Mr Orengo is on record pushing for changes to the document.
“Let’s not allow vanity to prevail in this issue. The precedence of Parliament’s role was established by the Committee of Experts, which drafted the Constitution,” Mr Orengo said.
The experts synthesised the contents of three documents and developed a bill to repeal the 1963 Constitution.
The arguments come as uncertainty surrounds a proposed three-day special sitting of the National Assembly to discuss the BBI report by the Joint Legal Committee.
Minority Leader John Mbadi told the Sunday Nation that the sitting had been planned ahead of the resumption of Parliament on May 4.
Meanwhile, the joint committee is to retreat to Windsor Hotel, Nairobi, from today to write the final report.
According to Mr Mbadi, the special sitting, which will also discuss the Division of Revenue Bill as amended by the Senate on Tuesday, will be from April 27 to 29.
“The April 27 sitting will be for the Division of Revenue Bill while lawmakers will discuss the BBI report on April 28 and 29,” Mr Mbadi said.
Contacted yesterday, National Assembly Speaker Justin Muturi said he is not aware of a special sitting.
Last week, Mr Muturi said he had not received any request for a special sitting to consider the BBI report.
“I will deal with it appropriately if it comes,” he said.
National Assembly Majority Leader Amos Kimunya did not respond to our enquiries.
Meanwhile, the retreat comes amid reports that the committee is divided on amending the report as passed by 43 county assemblies.
Two legal experts appointed by the committee to advise it on six thematic areas are to brief the MPs before the report is tabled in Parliament for debate.
The committee settled on Prof Patricia Kameri-Mbote and Dr Collins Odote as its experts to advise it on the nature of the bill, public participation and its extent, the processing of the bill, substantive issues, the referendum and status of litigation touching on the bill.
During the retreat, committee members will deliberate on the findings before the secretariat and the experts write the final report.
Sources say the experts have advised against reopening the document.
They have also returned a harsh verdict on the proposed 70 constituencies, saying the matter should have been handled by the Independent Electoral and Boundaries Commission (IEBC).
The committee, according sources, is also grappling with whether the experts’ opinion should be used in the Constitution amendment or form part of House records.
The joint committee is mulling leaving the ultimate decision on whether to amend the document to the two Houses instead of making it part of its recommendations.
Committee Co-Chairman Muturi Kigano said no report has been officially released.
“I will see the report on Monday. It will be posted on the website by the end of the week,” he said.
The Kangema MP added that he is not sure about the special sitting on BBI.
“It is the Speaker who calls a special sitting. The Speaker has other serious businesses to consider other than BBI,” Mr Kigano said.
He had earlier said the decision to amend or not amend the document would be made by the House and not his team.
Constitutional expert Bob Mkangi said lawmakers cannot amend the bill.
“Beyond the IEBC, the role of the sub-national and national legislative bodies is to agree or disagree with the proposers’ initiative as captured in the bill. They don’t have the mandate to change it. If they do, it evolves into another initiative,” Mr Mkangi said.
“Parliament can only express its opinion on the sufficiency or deficiency of the bill by endorsing or rejecting it.”