BBI promoters say House route the best option
By Jacob Ngetich | May 17th 2021
After the High Court ruling that annulled the Building Bridges Initiative (BBI) Bill the proponents of constitutional review are now mulling options to salvage the process.
Insiders are considering three options; an appeal at the Court of Appeal, seeking a constitutional interpretation of the ruling and taking the parliamentary route to resuscitate the Constitution of Kenya (Amendment) Bill, 2020.
And while BBI proponents are hopeful that the Court of Appeal will overturn the High Court ruling, others are already lining up contingent measures in anticipation of another shocker.
A source close to the promoters told The Standard that they were considering seeking Supreme Court interpretation of the process.
Ndaragwa MP Jeremiah Kioni also said that the National Assembly’s Constitutional Implementation Oversight Committee (CIOC) was considering bringing back the Bill through a parliamentary initiative.
“We can bring back the Bill with the blessings of its promoters. Nothing stops Parliament from processing the Bill. Much of the work, including public participation, has already been done,” said Kioni.
But BBI co-chair Junet Mohamed said that the secretariat would not adopt the parliamentary path.
“We are focused on our popular initiative which has secured the necessary approvals but any MP has the right to propose a Bill in Parliament. If he (Kioni) wants to go that route, it is within his right. But we are not a party to that,” Junet said.
Article 256 of the Constitution allows Parliament to amend the Constitution. Such a Bill would undergo public participation for a mandatory 90 days and would require two-thirds of MPs to approve.
Changes on protected clauses in the Constitution whether through Parliament or popular initiative require a referendum to be enacted.
Promoters of the BBI Bill had the option to channel the document through the August House but opted for the popular initiative route.
For the longest time, observers had tied their reluctance to go the parliamentary way to fears that MPs allied to Deputy President William Ruto would have shot it down.
In the wake of a resounding victory in Parliament and a bitter court verdict, lawmakers are regretting.
“It would have been easier to pass the Bill through Parliament going by our numbers. We would have marshalled the two-thirds threshold required to amend the Constitution,” says Makueni Senator Mutula Kilonzo Jr.
“The better option would now be to repurpose the Bill and remove issues that may require a referendum and bring it to the two Houses of Parliament,” said Kilonzo Jr.
Removing matters that may require a referendum would address the timeline challenges ahead of a General Election.
“It is easier for Parliament to handle issues such as the 35 per cent proposed revenue allocation to counties. Other matters can be addressed later,” he added.
Its not just supporters of the BBI warming up to a parliamentary process. Murang’a Senator Irungu Kang’ata, who voted against the BBI Bill, terms it “a good proposal.”
“We were opposed to a referendum and a ‘we versus them’ scenario. But, of course, we have to remove the contentious clauses like expanding Parliament hence adding extra costs to mwananchi,” he said.
The first hurdle for Kioni, would be convincing the BBI secretariat to abandon the current process after the court verdict and then manoeuvre some legal obstacles. For instance, legal experts warn that the BBI Bill cannot be essentially transferred to Parliament as suggested by Kioni.
“It will require to undergo the same processes that a normal Bill would, which includes public participation,” adds former National Assembly Speaker Kenneth Marende. His sentiments are shared by lawyers Bobby Mkangi and Charles Kanjama.
“The Bill will be a new product,” says Mkangi.
Marende contends that supporters of the BBI to abandon the current process and start a new one.
“The Bill cannot be recalled. Parliament has already played its role and it is a spent force in the current initiative. It is functus officio (its mandate has ended),” he adds.
Marende proposes a more elaborate review process for “overhauling” a Constitution as the BBI Bill hoped to do by proposing substantial amendments.
“The best route would have been to benchmark the pathway we followed when coming up with the Bomas draft. The process is more involving and it actually works,” said Marende.
Another stumbling block, Mkangi argues, would be to tune the Bill to the High Court ruling by keeping it within constitutional limits by maintaining the basic structure of the supreme law.
“A parliamentary process does not insulate the Bill from court action. The High Court found some aspects of the Bill, such as the delimitation of boundaries, to be unconstitutional. If they do not subject it to the High Court ruling then it can be challenged in court even after it is passed,” argues Mkangi.
Kanjama agrees that lawmakers will have to get rid of provisions the court declared unconstitutional. The lawyer argues that the parliamentary route is less tedious.
“It is easier if you have the majority in Parliament. The amendments also don’t have to go through the county assemblies,” he charges.
He, however, cautions that a Parliamentary Bill can be amended by lawmakers.
“Promoters of Bills which go through Parliament must know that the MPs will interfere with them in one way or the other. That, in most cases, ends up in a better document through necessary amendments,” says Kanjama.
On his part, Mkangi says that the legislature route is not necessarily an easier one as it would have to follow the timelines stipulated by law concerning processing constitutional amendment Bills.
“It would be better to get rid of things that may lead to a referendum and pass a Bill that will only require the president’s assent,” adds the former member of the committee experts that wrote the current constitution.
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