Speaker Justin Muturi to determine the fate of BBI on Tuesday

Speaker Justin Muturi when he received copies of the Constitutional amendment bill 2020 from Vihiga County Assembly. [Samson Wire, Standard]

Speaker of the National Assembly Justin Muturi is expected to make a monumental ruling this week that will determine whether members can amend the Building Bridges Initiative (BBI) Bill.

Last Thursday, MPs raised fundamental issues on the form and context of the Constitution of Kenya (amendment) Bill 2020 and Speaker Muturi informed the House that he will deliver a ruling on the matter in subsequent sittings.

The MPs appeared divided on the constitutionality of the proposed first amendment of the 2010 Constitution when they began debate on the report by the joint team of the National Assembly and Senate's Justice and Legal Affairs.

The lawmakers sought to know if their role is ceremonial on the legislative matters on the change of the constitution as provided for in Article 94.

They raised several points of order including Standing Order 83 to seek his guidance on what is the value of the public participation process on the Bill.

The legislators commended the committee for conducting extensive public participation, a fact alluded to in its report including views by experts Prof Patricia Mbote and Collins Odote.

During the debate, the legislators raised 'weighty' constitutional issues regarding the Bill in particular as relates to the delimitation of additional constituencies, establishment of the Judiciary Ombudsman and the amendments relating to functions of the Judicial Service Commission (JSC) and the National Police Service Commission (NPSC) which are provided for in Clauses 43, 44, 66, 67 and the Second Schedule to the Bill respectively. 

National Assembly Speaker Justin Muturi. [Elvis Ogina, Standard]

They noted that there were several legislations challenged in court due to lack of adequate public participation and in the past weeks including reports that the draft Bill passed by the County Assembly of Tana River to amend the Constitution was invalidated for failure to adhere to requirements of public participation.

Nominated MP Godfrey Osotsi said there would be no showdown but a robust debate on the role of Parliament in passing the popular initiative.

He differed with those claiming Parliament has a role and insists that the Constitution in Articles 1, 94 (1), 94 (5) and 257 allows the House to review the popular initiative.

Others MPs argued that there is nowhere in the world where Parliament is a bystander in Constitution-making.

Article 1 states that; (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution; (2) The people may exercise their sovereign power either directly or through their democratically elected representatives.

Another MP said Parliament was therefore in order to review the process, citing Article 94(5) which states that nobody or individual had the legislative role of making laws that can be enforced in Kenya apart from Parliament.

“If you put this together with Article 257 which provides that Parliament in the referendum process will pass the popular initiative Bill as opposed to the county assemblies which were being asked to just approve. if you read all these articles you will know that Parliament is not a bystander,” he said.

MPs Millie Odhiambo and Cecile Mbarire questioned the proposed changes, which some offend the current law. There is also the question of whether this was a populous initiative or the Executive's initiative.

Runyenjes MP Cecily Mbarire. [David Njaaga,Standard]

Mbarire warned that the struggle to get a new constitution, where many people lost lives should not be mutilated for selfish gains but for prosperity.

“Much as I am a supporter of the BBI process, we cannot as Parliament pass a faulty document which the courts will easily throw away. Those saying Parliament is a rubber-stamp don’t support the BBI and are keen to see it rejected by the Judiciary," said another MP.

Uasin Gishu County MP Gladys Shollei said: “Upon reading the BBI Bill, I have become extremely disturbed. It is  clear and apparent that a vast of majority of the proposals do not need a constitutional amendment to be effected. Bottom line is that it's mostly about creating positions. This is a good example of bad law.”

Rangwe MP Lilian Gogo said: “We really need to interrogate this matter with a lot of humility. We don't need populist ideas in this Bill. We should embrace change for posterity.”

Rarieda MP Otiende Amollo said public participation is not perfunctory. "The committee agreed that a referendum is a must. As a committee, we identified some pitfalls and suggested how we can overcome those challenges. This is a facilitative role and not disruptive,” he said.

He added: “We agreed, even after consultation with experts, that this is a popular initiative under Article 257. The question of who initiated it is irrelevant to whether it is popular or not. While the role of Parliament is restricted, it is not ceremonial. Parliament cannot substitute its views for those of the promoters. It has the inherent authority to correct any errors.”