Lawmakers have hatched a secret scheme to frustrate the Punguza Mizigo Bill that seeks to reduce their number from 416 to 147, The Standard can reveal.
It has emerged that MPs are plotting to exploit a loophole in the Constitution by ‘sitting’ on the Bill should it get the backing of at least 24 county assemblies as required for it to be submitted to Parliament.
Article 257 of the Constitution that provides for the popular initiative path does not give timelines within which Parliament should introduce the Bill, handing lawmakers a lethal weapon against the initiative.
“If a county assembly approves the draft Bill within three months after the date it was submitted by the Commission, the speaker of the county assembly shall deliver a copy of the draft Bill jointly to the speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it.
“If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay,” reads the Article.
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Several MPs disclosed that they may decide to exploit the loophole in a protest against the Ekuru Aukot-led Thirdway Alliance for allegedly not engaging stakeholders in coming up with the Bill.
The Punguza Mizigo Bill, which also proposes a single seven-year presidential term and installs Senate as the upper house, however, was backed by 1.2 million voters — more than the 1 million needed for the electoral commission to submit the draft Bill to county assemblies.
At the heart of the plot is a bid by MPs to protect President Uhuru Kenyatta and Opposition chief Raila Odinga’s Building Bridges Initiative (BBI), which is expected to come up with a Bill for a referendum.
Raila has expressly asked his supporters to ignore the Punguza Mizigo Bill, and yesterday the Siaya county assembly rejected it after members approved a Justice Committee report that recommended its rejection (see separate story).
Jubilee, through Secretary General Raphael Tuju, has said the ruling party was for the BBI, giving the strongest indication that the two main parties may use their numerical strengths in both county assemblies and Parliament to frustrate the passage of the Bill.
Lawyer Nzamba Kitonga – who chaired the committee of experts that wrote the 2010 Constitution – yesterday said the drafters of the law did not provide specific timelines because “it was envisaged that Parliament at some point will be on recess”.
Mr Nzamba, however, said MPs are expected to give such a Bill priority and introduce it as soon as practically possible.
Constitutional lawyer Bobi Mkangi, who was also a member of the committee, concurred that Parliament can exploit the loophole to frustrate the Bill.
“It will depend on the procedure of Parliament. They can actually sit on it, unless there is some political pressure from outside to compel MPs to act,” Mr Mkangi said.
Yesterday, Minority Leader in the National Assembly John Mbadi dropped the bombshell when he revealed that Parliament can decide to ‘sit’ on the Bill until the term of the current Parliament expires.
Mr Mbadi said they have no specific timelines within which the House should take a position on the Bill.
“This Bill is very unpopular with MPs of both Houses. We may decide not to make any decision on it and delay it as much as we can,” said Mbadi.
“They have been going round saying we are ceremonial in the process, not knowing that there is a loophole in the law. The only referendum that will take place is that of the BBI,” he added.
Similar sentiments were shared by Makueni MP Dan Maanzo, who said the Bill needs the goodwill of Parliament to get to the referendum stage.
“They never consulted anybody; we would have given it some thought. With the gaps in the law, we can decide to sit on it and wait for the BBI to publish its Bill so that we can decide what document to back,” said Mr Maanzo.
“Parliament can hold it at ransom since there is no law compelling MPs to prioritise it in the order paper.’’
Minority Whip Junet Mohamed said Punguza Mizigo was not one of the Bills requiring priority.
“Parliament has so many Bills to deal with and Punguza Mizigo is not one of them. Thirdway Alliance will have to wait to have an MP to push its agenda,” he said.
Instructively, the powerful House Business Committee, which schedules house business, is dominated by a Jubilee-ODM group, which means it can delay listing the proposal on the order paper.
Maanzo, who is also a lawyer, however, explained that the movers of the initiative may go to court to push for its introduction in the two Houses.
National Assembly Majority Leader Aden Duale claimed the Bill would not go beyond county assemblies.
“I can tell you that Punguza Mizigo is dead on arrival. You cannot reduce the number of constituencies without any justification.”
He added that the number of constituencies were increased due to a growing population, and there was no way MPs would allow the passage of the Bill that would take away the right to representation.
“He is not telling us how he arrived at the decision to reduce the number of constituencies. Unless he tells us that population has gone down, we will not support that Bill,” Mr Duale said.
Nominated MP Isaac Mwaura also said that there are many loopholes that can be exploited to stall the initiative.
Mr Mwaura said the law was silent on the number of initiatives for a referendum that can be conducted at any given time, as well as when a referendum can be held.
But MPs Didmus Barasa (Kimilili) and Eseli Simiyu (Tongaren) said it would be unfair for the two Houses to exploit the loophole since the matter was of public interest. Mr Barasa added that the Bill has some of proposals that should be backed by MPs.
However, Mkangi said, Thirdway Alliance will have to endure political attacks in its quest since a referendum was a political contest that has become a tool for political mobilisation.