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Was Kibaki given the wrong Bill on amendments?

By Peter Opiyo and Alex Ndegwa

An MP claims there was a plot to have President Kibaki sign the wrong draft of the contentious Statute Law Miscellaneous (Amendment) Bill, which Parliament passed last week.

The new twist to the saga of the omnibus Bill that has painted Parliament in bad light came from Yatta MP Charles Kilonzo, who said MPs deleted a clause exempting lawmakers and councillors from having to hold a university degree.

The allegations come as Parliament, accused of drifting away from the spirit of the new Constitution, prepares to debate President Kibaki’s memorandum on why he rejected the Bill this afternoon.

Kilonzo alleged a scheme to dupe President Kibaki into signing the wrong Bill into law. Kilonzo said the illegal draft retained a clause that would have cushioned many MPs and councillors in the coming General Election.

The offensive Section 22(3), which Bura MP Abdi Nuh successfully moved last Wednesday night, was among the contentious changes to the electoral laws that MPs reversed the following day after public outrage.

Curiously, the section, whose effect was to exempt MPs and councillors from the requirement for post-secondary qualifications to vie for elective posts, was among those the President cited while rejecting the Statute Law (Miscellaneous Amendments) Bill 2012.

In his memorandum to Parliament explaining his decision, President Kibaki recommended that the proposed amendments to section 22(2) and 22(3), the former imposing a degree requirement, be deleted from the Bill.

Also recommended for deletion was a new subsection introduced by Gachoka MP Mutava Musyimi, which attempted to legislate party hopping. The Head of State said the offensive clauses were the subjects of court cases.

At least 80 MPs without university degrees have, however, celebrated the President’s rejection of section 22(2) that was introduced by Transport minister Amos Kimunya imposing the degree requirement.

To override the President’s memorandum on a rejected Bill, the House must garner 65 per cent (148 members), which is a tall order since the members without university education support the President’s move. Essentially this means the law will revert to the status quo of lower academic ceiling — post secondary education — that Kangundo MP Johnston Muthama has challenged in court.

Debate

According to Parliament’s Standing Orders and the Constitution, MPs will not be expected to reopen debate on the entire Bill, but will only deal with the President’s memorandum.

If after the debate, the MPs are dissatisfied with the President’s memorandum, they must raise a two-thirds majority to veto his proposals and maintain what they had amended.

But in the event they fail, the President’s memorandum will carry the day, as it only requires a simple majority to pass.

On Wednesday, authorities attempted to downplay the matter, saying after all the President recommended that the section be deleted. But such goofs during lawmaking could alter the substance of laws.

For instance, last year, when Parliament passed the Elections Act, Garsen MP Danson Mungatana successfully moved the deletion of the word “not” from a section whose effect was to bar the inclusion of names of presidential candidates in party lists for nomination.

But when the Act was gazetted, it contained the caveat, which meant presidential election losers could not be nominated to Parliament. Mungatana drafted the proposed amendment for inclusion in the Statutes Law Miscellaneous (Amendment) Bill to reflect the correct version Parliament passed.

The MP only dropped the amendment after Attorney General Githu Muigai assured him the error had been corrected through a corrigendum. In the two instances, it was an “error” in that the Bill was submitted to the President in a version that did not accurately reflect the proceedings in Parliament.

When contacted the Attorney General said it was a minor matter that would be dealt with in the House.

But on Wednesday when Kilonzo stood on a point of order to point out the anomaly, House Speaker Kenneth Marende declined to give him an opportunity to do so.

Certified

Before a Bill is passed on to the President for assent, it is supposed to be scrutinised by the administration of Parliament and certified as the true copy, with all the amendments incorporated with a certificate and a copy of the Hansard.

It is then sent to the AG, who peruses it and then hands it over to the President for assent.

It is now not clear whether the anomaly occurred in Parliament or the AG’s office. On Wednesday Kilonzo claimed a section of MPs secretly met the AG to plead for the inclusion of the clause so that if the Bill became law it would save MPs without degrees.

“Some MPs met the AG and wanted the clause reinstated so that they can benefit when the President signs the Bill into law,” said the Yatta MP.

The matter brings to mind the controversy that surrounded the errors detected in some Bills passed by Parliament last year.

After an uproar over the matter, Speaker Marende ordered that the Bills be cleaned up. One of the errors that were rectified in the Elections Act required the Presidential candidates and their deputies to be nominated to Parliament.

And in the run-up to the constitutional plebiscite a clause touching on national security was sneaked into the new Constitution eliciting uproar from a section of MPs.

The fiasco on the President’s memorandum continued when word went round that the AG’s office sent a corrected version of the memorandum after the error was detected.

Resignation calls

This came as ODM MPs called for the resignation of the AG, saying he had betrayed his oath of office.

“It is now clear that the AG is serving forces out to fight reform and enhance impunity. We demand that he resigns,” said Sotik MP Joyce Laboso.

They said the President’s memorandum did not include nomination of presidential losers to Parliament.

“This issue is a threat to the constitutionalism that Kenya wants to instill in our country since the presidential election losers want to grab positions reserved for women, youth, minorities, and people with disabilities,” said the Sotik MP.

Budalangi MP Ababu Namwamba, Nominated MPs Millie Odhiambo and Rachel Shebesh, and MPs Nkoidila ole Lankas and Manson Nyamweya accompanied her.

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