BBI report Kisii

President Uhuru Kenyatta and former Prime Minister with copies of the BBI report during its presentation at the Kisii State Lodge in October 2020. 

| Photo | PSCU

Uhuru, Raila MPs craft new BBI Bill

The group supporting the Building Bridges Initiative wants to enact an amended plebiscite Bill to facilitate it within 35 days should the court give a favourable ruling.

With the Court of Appeal due to rule on the fate of BBI on August 20, the National Assembly has mandated the Justice and Legal Affairs committee go prioritise the referendum Bill.

The proposed law, at the final legislative stage of scrutiny of suggested changes, was part of Thursday's afternoon’s business schedule.

A legal framework to guide the referendum has not been in place, which explains the urgency to pass the Bill.

The committee has proposed amendments that essentially shorten timelines and make it easier to pass the Constitution of Kenya (Amendment) Bill by lowering the threshold.

On voting threshold, the committee wants a requirement that the referendum question must be approved by at least 20 per cent of the registered voters in each of at least 24 counties scrapped.

This requirement was informed by the need to ensure changes to the Constitution have the backing of a wider section of Kenyans.

However, the proposed change by the committee removes the entire clause, including the second part stipulating the constitutional amendment is supported by a simple majority of the citizens voting in the referendum to pass.

It’s unclear whether the proposed deletion of this second part is an error or it’s implied that the referendum question is considered approved if supported by a simple majority.

The import of the shortened timelines as proposed by the team chaired by Kangema MP Muturi Kigano is that should the referendum process resume, it would take 108 days, including settling any court dispute.

To speed up the process, the committee does not want Parliament to have a role in approving the referendum question hence proposing deletion of an elaborate procedure that would have occasioned a back-and-forth between the MPs and the electoral commission.

Another timeline the committee that is packed with President Kenyatta and ODM leader Raila Odinga loyalists proposes to drastically reduce is the period for deciding a referendum petition.

The Bill provides that the High Court determines such a petition within six months from the date of filing but the committee wants the period reduced to 21 days.

Since the BBI stalled after approval by both Houses of Parliament, if cleared by the Court of Appeal, then the Bill will be presented by the two Speakers to the President for assent and for him to notify the electoral commission to hold a referendum.

Working with the assumption that this is done by September 1, since the Constitution requires the electoral commission to hold a referendum within 90 days, it would mean the vote must be concluded by end of November.

The committee’s proposals to shorten the timelines mean the vote can be held in 36 days, being 21 days within which to frame the referendum question and another 14 days within which to publish a notice on the plebiscite.

However, the electoral commission would have some 55 days to fix the referendum date and plan for logistics, including procurement of poll material, which the commission has since advertised, and deployment of officials.

To prevent delays in announcing poll results, the team has proposed an amendment, stating, the electoral commission shall publish the result of the referendum in the Gazette within a day of holding the referendum.

According to the proposed amendments to the Bill by the committee, a petition would take 72 days at most to be decided both by the High and the appellate courts. This means that by December, the constitutional changes would be in force if all goes according to the pro-BBI camp’s plan.

The team has reduced the filing of an appeal following the High Court ruling from 30 days to seven days.

It also proposes to shorten the determination period of the appeal from six months to 21 days.

Showdown

This is expected to cause a showdown in the House between President Kenyatta and Mr Odinga’s camp, on the one hand, and Deputy President William Ruto’s side, which is opposed to the BBI.

As a pointer to the looming clash, Nakuru East MP David Gikaria, an ally of the DP, has proposed a parallel amendment to ensure a referendum petition is determined within six months of the date of lodging the petition, to delay conclusion of the process, in essence.

Another proposal by the committee is to shut the door on a multiple question referendum.

The committee proposes that the electoral commission only frames a referendum question and recommends deletion of all references to “options”.

The DP has demanded that a vote is taken on each area the proponents propose to amend.

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