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BBI can become law without referendum

By Mohamed Guleid | February 18th 2021 at 00:00:00 GMT +0300

The BBI constitution process is now at an advanced stage. Many Kenyans are worried of the costs linked to the plebiscite once county assemblies pass the Constitutional Amendment Bill 2021. The IEBC had estimated Sh15 billion would be needed to conduct a referendum.

Considering the current economic status of our country, many people are of the opinion that such a colossal amount would better be used to support Kenyans worst hit by the Covid-19 pandemic and the harsh economic conditions.

Fortunately, in the last few weeks, alternative views have emerged on whether a referendum is necessary because more than 90 per cent of the proposed amendment might not really require a referendum.

Several lawyers, like Kamotho Waiganjo and Peter Wanyama, have voiced divergent views on the need to proceed with a referendum. I agree with them. The amendment Bill being a popular initiative, meaning it originated from Wanjiku, only requires a simple majority in all the legislative chambers. It might only require a referendum if either the National Assembly or the Senate rejects the Bill.

According to lawyer Wanyama, the clauses that require an amendment are few and can be found in Article 255, which prescribes the so called protected clauses.

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A referendum is only necessary if, for example, there is need to contest the supremacy of the Constitution, change the Bill of Rights or change the structure, objects and principals of the devolved governments.

Also, if there is a plan to extend the term of a president, then a popular vote is required. So far, the Bill as tabled at the county assemblies does not have items that touch on the changes within the spirit of  Article 255. The only possible need for a plebiscite shall be if the plan to create the office of Judiciary Ombudsman shall be pursued.

So, if 24 county assemblies pass the Constitutional Amendment Bill, then effectively the constitution is as good as amended. The most important driving motive of the Constitution amendments as it stands now is probably the expansion of the Executive. This section is probably the motivation for the drive in amending the Constitution.  

The creation of the offices of the Prime Minister and Deputy Prime ministers does not really require a referendum because Article 255 has not mentioned the changes to the Executive in the protected clauses.

There are no real benefits for a referendum if a plan to expand the Executive can be achieved by using the legislative framework.

My only concern is why there is so much push for a referendum, considering that it is not necessary in the first place. Looking at the main protagonists and those who oppose the amendment of the Constitution, all will in the end benefit from the expanded executives and creation of new constituencies as proposed. The two main factions in this debate are camps allied to President Uhuru Kenyatta and his deputy William Ruto.

Once the legislative houses pass the Bill, the President might decide to assent it and the Constitution of Kenya 2010 would stand amended.

All the bigwigs will have their say and share the available positions, but then, the common mwananchi will be left shouldering the burden. To be frank, some of the proposals in BBI Bill might come back to haunt the government because of implementation challenges.

Tax holiday

Take the example of tax holiday for the youth for seven years. My guess is as good as yours. In a country where people find all manner of excuses to avoid paying taxes, every parent with a youthful child will immediately register a company using the child’s name so that they can benefit from the tax holiday.

In the long run, this might not be sustainable for the exchequer and Parliament might again propose another constitutional change process to delete that aspect based on rational decisions.

The issue of the amending the Constitution looks to me like a contest of giants trying to show their political muscle and ego. It is not in the interest of the people.

If the interest of the people were at play, we would not have had so much hullabaloo over the BBI. The government would simply have used the two-thirds rule in Parliament to amend the Constitution and spare us this electioneering mood.

Mr Guleid is CEO, Frontier Counties Development Council. [email protected]

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