Don't revive BBI through the backdoor, lawyers tell Ruto

Former President Uhuru Kenyatta and ODM leader Raila Odinga look at their signatures during the launch of the collection of signatures for the Building Bridges Initiative (BBI) at KICC in Nairobi on November 25, 2020. [Stafford Ondego, Standard]

The Law Society of Kenya has criticised President William Ruto’s push to amend the Constitution, terming the move unconstitutional and a bid to revive the rejected BBI route.

Speaking yesterday in Nairobi, LSK president Eric Theuri called on the National Assembly Speaker Moses Wetangula and the MPs to block the proposal made by the President, saying changing the Constitution is not a priority for Kenyans when they are battling the high cost of living and famine. Mr Theuri accused Ruto of re-introducing the Building Bridges Initiative (BBI) that the Supreme Court declared unconstitutional.

“The amendments are being initiated by the President contrary to the decision in the BBI case and therefore they should not see the light of day in Parliament there being a very clear precedent set by the court,” said Theuri. 

In a memorandum dated December 9, and addressed to the Speakers of both Houses, Ruto proposed amendments to the Constitution. He proposed that Parliament amends Chapter 9 to institute the office of the Official Leader of the Opposition and have functions of the office provided by subsequent laws enacted by the National Assembly.

“I hold the firm belief that as President, I can and indeed must engage authorised entities like Parliament. Accordingly, the purpose of this letter is to request that Parliament considers all policy measures necessary and sufficient to actualize the promise of our constitution,” he said.
“I am urging Parliament to exercise its full authority and precisely calibrate the balance of constitutional powers, deepen governance, enhance inclusion in democratic space, strengthen parliamentary oversight of the executive and promote the responsiveness of elected representatives to citizen aspirations.”

Former Mandera Senator Billow Kerrow questioned the rationale of installing the position arguing that it will serve no purpose and might be used to arm-twist and control the Opposition.

“What is the mischief to be cured by the proposed Bill in this amendment? Stop the Opposition from going to the streets and being confrontational? or give them a carrot so that they can be passive and conformist, and happily in bed with the Executive as has happened in the Handshake enterprise?” asked Mr Kerrow.

To address the contentious issue of gender imbalance in Parliament, Ruto wants the National Assembly to amend the Constitution and develop a formula that will guide computation of the gender ratio in the House. However, Theuri argues that if the President was genuine in this push, he would have led by example by appointing more women to the Principal Secretary position.

“The President has made appointments of PSs that do not comply with the Constitution so as LSK we are wondering if he is an advocate of the gender parity principle, he should have started with the appointment of the Principal Secretaries in a manner compliant with the Constitution,” said Theuri.

Despite championing for gender equity during the campaign period, Ruto has also fallen short in meeting his promises of having women make up half of his Cabinet where he only nominated seven. The President is also seeking to entrench various funds in the Constitution including the National Government Constituency Development Fund (NG-CDF), the Senate oversight fund and the national government affirmative action fund.

According to his plans, Ruto is considering making the amendments through Parliament, arguing that a referendum will be a source of division among the electorate who recently came from the General Election. The president also wants to make amendments to the parliamentary standing orders to facilitate the participation of Cabinet Secretaries (CS) and Chief Administrative Secretaries (CAS) in parliamentary proceedings and enable them to respond to questions posed by MPs in their capacity as the people’s representatives and in the execution of their oversight roles.

However, Theuri says the amendments touch on national values and principles of governance provided for in article 10 of the Constitution, will affect the overall structure of parliament and the executive and must therefore through a referendum. 

“The amendments as proposed by the President fall under the scope that requires a referendum and if pursued by way of the president’s proposition, the sovereignty of the people of Kenya would be undermined,” said Theuri.

LSK also tore into Ruto’s decision to retain the position of CAS arguing that the question over its legitimacy is still in court. The position was created by former President Uhuru Kenyatta in 2018 and was later declared unconstitutional by the High court over concerns about the lack of public participation in the institution of the position.

LSK’s criticism of the matter comes days after Azimio leader Raila Odinga called out President William Ruto for appropriating proposals from the BBI as his own in the push to amend the Constitution. On Wednesday, Nominated MP John Mbadi alleged that Ruto’s efforts to amend the law are strange compared to that of former president Uhuru Kenyatta, who pushed for an amendment at the end of his term.

“Ruto is barely six months in office and is starting to initiate a constitutional amendment. Maybe he is testing the water. Tomorrow he may come up with something else that he wants to amend the Constitution and remove the term limit of the president,” said Mbadi.

Democratic Action Party of Kenya (DAP-K) leader Eugene Wamalwa, while announcing he was going to run for the presidency in 2027, also cautioned Kenyans to be wary of any move to change the Constitution.

“The constitutional change talk is but a red herring meant to distract our nation’s attention from the failure of the KK government plan to bring down the high food and fuel prices cost of living, as Kenyans face a miserable Christmas,” he said.

The Standard
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