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Okiya Omtatah now goes to court over MPs' fresh move to change law

By Paul Ogemba | July 31st 2021

Activist Okiya Omtatah. [Chrispen Sechere, Standard]

Plans to amend the Constitution to allow the appointment of Cabinet Secretaries from elected MPs could hit a brick wall after an activist moved to court to stop the proposal.

Okiya Omtatah has filed an urgent petition at the High Court to stop the president from assenting to any Constitutional Amendment Bill (2020) should it be passed by Parliament, claiming that it is an attempt to amend the Constitution through the back door.

“Parliament is currently considering the Bill with a clear intention that members will approve it and send it to the president for assent. The proposed amendment is unconstitutional since it seeks to remove separation of powers between the Legislature and the Executive,” he said.

The Constitutional Amendment Bill (2020), which is before the National Assembly’s Constitutional Implementation Oversight Committee, seeks to amend the Constitution to allow the president to appoint Cabinet Secretaries from among MPs.

It also seeks to give the president powers to assign the Attorney General the duties of a Cabinet Secretary.

He says the Bill also seeks to amend Article 170 of the Constitution to allow governors to appoint members of the county assembly as members of the county executive committee.

Activist Okiya Omtatah. [David Njaaga, Standard]

Omtatah says the proposed amendments to fuse the Legislature and the Executive interfere with the basic structure of Kenya’s presidential system and that the proposed changes can only be made through a referendum.

“Any amendments to the Constitution to allow the president to appoint CSs from among MPs and governors to appoint MCAs as members of the county executive committee cannot be done through a parliamentary legislation without a referendum,” he says.

Omtatah says the Constitution establishes a full presidential system where there is a clear distinction and separation of powers among the Legislature, the Executive and the Judiciary, which cannot be watered down through a “backdoor” parliamentary legislation.

Activist Okiya Omtatah. [Collins Kweyu, Standard]

He says it is illegal for Parliament to proceed with the Bill without providing for a referendum pursuant to Article 255 (1) (h) and (i) which requires that any amendments affecting the functions of Parliament and devolved government must be approved through a national referendum.

He accuses the National Assembly of failing to respect, uphold and defend the Constitution by proceeding with the ill “through the back door”.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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