Verdict spells doom for three Bills in Parliament

Garissa Township MP Aden Duale said sponsors of the said Bills should forget about them. [Elvis Ogina, Standard]

The fate of three Bills lined up for consideration by MPs now hangs by a thread following the landmark ruling that declared the Building Bridges Initiative (BBI) process illegal.

The Bills sponsored by Ndaragwa MP Jeremiah Kioni-led Constitutional Implementation Oversight Committee (CIOC) and West Mugirango MP Vincent Kemose have proposals akin to the BBI.

The Constitution of Kenya (Amendment) Bill No 6 of 2019 by Kemose seeks to amend the Constitution to allow for appointment of Ministers from among Members of Parliament while the Constitution of Kenya (Amendment) Bill No.5 of 2019-Sponsored by Kioni seeks to amend Article 90 to allow political parties to nominate to the National Assembly and the Senate, presidential and deputy presidential candidates.

Similarly, the Constitution of Kenya (Amendment) Bill No.40 of 2020 by the Ndaragwa MP also seeks to have the President appoint Cabinet Secretaries from among Members of Parliament.

The Bill also seeks to have the Attorney-General perform the functions of a Cabinet Secretary as assigned by the President as well as to allow a governor to appoint MCAs as members of county executive committee.

The implication of the proposed amendments is that they would touch on the oversight role of Parliament since Cabinet Secretaries will now sit in the House.

The High Court ruling on BBI declared that Chapter Nine on the Executive and Chapter 10 on the Judiciary and their provisions form part of the “basic structure,” entrenchment clauses” and “eternity” provisions of the Kenyan Constitution 2010 and therefore cannot be amended either under Article 256 by Parliament or through popular initiative under Article 257 of the Constitution.

On Friday, majority of the Court of Appeal judges upheld the High Court finding that the basic structure principle was applicable in amending the Constitution.

The judges said that some clauses could not be amended without conducting civic education, public participation, debates on legislative assemblies and referendum.

“The basic structure principle is applicable to Kenya, and it limits the power to amend the Constitution as provided in Article 255 of the Constitution. The basic structure can only be amended by following the four sequential orders before a referendum,” ruled Court of Appeal President Daniel Musinga.

Yesterday, Garissa Township MP Aden Duale said sponsors of the said Bills should forget about them since they will not see light of day based on the Court of Appeal judgement.

Garissa Township MP Aden Duale. [Elvis Ogina, Standard]

“There is no place for the proposed changes based on the ruling since the Cabinet Secretaries shall be sitting in Parliament, the Bills may require approval through a referendum as it may touch on the oversight functions of Parliament,” said Duale.

The former National Assembly Majority Leader said that MPs should now focus their energy in strengthening the Independent Electoral and Boundaries Commission (IEBC) to ensure it conducts free and fair polls come next year. “All the other shenanigans that we have been treated to for the last four years must stop now,” he added.

Soy MP Caleb Kositany, while agreeing with Duale, however, said that he will support changes that are not aimed at creating positions.

Nyeri Town MP Ngunjiri Wambugu and Nominated MP Godfrey Osotsi said they have shifted focus from the push to amend the Constitution to addressing issues in their respective constituencies.

“We have a very short period remaining for any meaningful legislation. In the next couple of months MPs will start focusing more on their personal issues at the constituency,” he said.

Wambugu said BBI had proposals that are not contained in the three Bills, and having MPs in the Cabinet is not a fundamental issue.

On his part, Osotsi said that it was unfortunate that those who were to benefit more from the proposed changes led the onslaught against the document. 

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