What you need to know:
- Tharaka Nithi, Murang’a, Nakuru, Mandera and Turkana among assemblies that got the correct draft Bill.
- Senator Kilonzo says mistakes are ‘mere typos’ that can be corrected without changing the Bill.
Proponents of the Building Bridges Initiative (BBI) are crying foul following claims that county assemblies passed different versions of the Constitutional Amendment Bill, exposing the process to legal questions.
It has emerged that 34 assemblies processed an erroneous Bill that made reference to a non-existent article of the Constitution, while explaining how 70 constituencies would be created.
This means that the National Assembly and Senate received different versions of the Constitutional of Kenya (Amendment) Bill, 2020, throwing the Joint Committee finalising a report to be tabled in the House next week into confusion.
What is puzzling is that the 47 county assemblies received a copy of the Bill from one source: the Independent Electoral and Boundaries Commission (IEBC).
That only 13 had the right version — the one IEBC uploaded online after it sent the Bill to the 47 regional Houses — raises questions on the process.
The Constitution says only the electoral agency can submit a Bill to amend the supreme law through popular initiative to the 47 county assemblies once it certifies that it’s supported by at least a million voters.
“With this information, courts should easily torpedo this process,” a member of the committee said.
Contacted, IEBC chairman Wafula Chebukati said the commission received printed and hard copies of the draft Bill from BBI promoters and forwarded it to speakers of the 47 county assemblies and to Speakers of the Senate and National Assembly.
BBI secretariat secretary Paul Mwangi said yesterday that since the BBI proponents sent one Bill to the electoral commission, nothing can explain the reported inconsistencies.
He said the development could be a plot to frustrate the process through lawsuits.
“The Bill moved directly from the IEBC chairman to the county assemblies. The IEBC chairman received the Bill directly from the BBI promoters. There is no room for mistakes,” Mr Mwangi said.
“People are just looking for reasons to stop BBI because they have failed politically and their attempts to change it in Parliament are also doomed to fail.”
The county assemblies that received the correct Bill are Nyandarua, Nyeri, Murang’a, Embu, Nakuru, Tharaka Nithi, Meru, Mandera, Turkana, Laikipia and Siaya, according to a list seen by the Nation.
Elgeyo Marakwet County Assembly, assumed to have been in the list, submitted different Bills to the Senate and National Assembly.
The 13 assemblies had the version of the Bill, whose second schedule makes reference to Article 89 (7) of the Constitution, which provides for the delimitation of constituencies, stating that it should be after consultations and that it should respect the population quota.
The BBI wants IEBC to create 70 constituencies following the provisions of Article 89 (7).
However, the 34 assemblies submitted to Parliament a Bill that made reference to Article 87(7), which does not exist.
And while the Bill that went to the National Assembly had the correct reference to Article 89 (7), it emerged that corrections were done.
The one tabled at the Senate had the reference to the non-existent article.
In the section that wants to amend Article 97 on how MPs will be nominated to Parliament, the Senate version of the Bill makes reference to a non-existent Clause 3, when it meant Clause 2, as correctly captured in the National Assembly draft.
The scrutiny also flags the fact that the Bills in both Houses seek to amend Article 188, when the section the BBI Bill actually talks of is Article 189.
“What happened? How did county assemblies receive different BBI documents? Was this sabotage or incompetence? Or maybe it was the case of too many interests at play,” 2013 presidential candidate James ole Kiyiapi asked.
The anomalies were flagged by the two consultants the joint committee engaged to advice on the issues that arose during public hearings to promote the Bill.
Makueni Senator Mutula Kilonzo admitted that Prof Patricia Mbote and Dr Collins Mbote exposed the anomaly when they made their presentations to the committee on Monday.
“They brought the attention of the committee on the anomaly. The Bill on the Kenya Law Reform (KLR) website is different from the one the experts were offered by Parliament,” he said.
“The mistakes are mere typos that don’t touch on the substance of the Bill. They’re simple mistakes that we have been told Parliament can amend.”
It’s these typos that informed the committee decision on Tuesday that Parliament would move to correct without amending the document as earlier proposed by some members.
Yesterday, National Assembly Speaker Justin Muturi and his Senate colleague Kenneth Lusaka said they were not aware of Parliament receiving different versions of BBI draft Bills from county assemblies.
“I have no comment. I am not seized of the matter,” Mr Muturi said in a text message.
Mr Lusaka referred the Nation to Senate Justice and Legal Affairs Committee chairman Okong’o Omogeni, who said:“There’s little I can say. We will prepare a release to brief the media.”
The law demands that once a county assembly approves or rejects the draft Bill to amend the Constitution, it must transmit the certificate of the decision and a copy of the Bill to the two Speakers immediately.
The requirement is meant to provide necessary safeguards in quality controls.
National Assembly Minority Whip Junet Mohamed, who is listed as one of the promoters of the Bill, challenged the critics to explain why it took long to find the anomaly.
“It’s throwing the spanner in the works of the BBI. The errors are typos that can be corrected without touching on the substances of the bill,” he said.
Another issue that will be scrutinised is the place of the Government Printer. Like all others, the BBI Bill was printed at the facility.
“We did the work under the instructions given to us by the promoters of the Bill. No issue was raised,” an officer at the Government Printer told the Nation.
Reported by Patrick Lang’at, Ibrahim Oruko and Samwel Owino