The possibility of Kenya going to a referendum became clear yesterday after the Building Bridges Initiative (BBI) Bill reached the 24-county constitutional threshold.
In what has now been dubbed ‘Super Tuesday,’ at least 38 counties had by last evening passed the Constitution of Kenya (amendment) Bill, 2020.
Baringo is the only assembly that has so far rejected the Bill. A section of MCAs have moved to court to challenge the manner in which the exercise was conducted.
The Bill will now be transmitted to Speakers Justin Muturi (National Assembly) and Ken Lusaka (Senate).
However, at this stage the role of Parliament is inconsequential in considering the Bill before the same is transmitted to President Uhuru Kenyatta for assent and thereafter to Independent Electoral and Boundaries Commission (IEBC) to formulate the referendum question.
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Constitution Implementation Oversight Committee (CIOC) chairman Jeremiah Kioni said in Parliament the Bill was not to be altered or amended as that would require a totally new process.
“Whatever is in the Bill will remain. If any changes are to be made, we must go back to the people and kick off the signature collection afresh. It will also be a single question referendum,” said Kioni.
National Assembly Chief Whip Emmanuel Wangwe yesterday termed the development from the county assemblies a game changer and a pointer to the right direction.
“The MCAs have shown the way by endorsing the Constitution Amendment Bill, 2020 and captured the pulse of the whole country at the grassroots. Kenyans are ready for change. The National Assembly has also done second reading of the Referendum Bill and Thursday will be the third reading,” said Wangwe.
The Chief Whip also said MPs were ready to give their verdict on the floor of the House and Wanjiku would have the last word through the referendum.
BBI co-Chair Junet Mohamed said the timeline for the referendum was listed for June but as things stand, it can happen earlier.
However, there are legal and political bottlenecks standing in the way of the referendum.
Three weeks ago, the High Court issued a temporary conservatory order restraining IEBC from subjecting the Bill to a referendum. The Turkana County Assembly and Thirdway Alliance had sought to stop consideration of the Bill by other assemblies and Parliament pending determination of the consolidated petitions.
The five-judge bench presided by Justice Joel Ngugi issued the order pending hearing and determination of the petition as consolidated with six others. They however ruled that county assemblies and Parliament are to continue with deliberations and public engagements and participation of the BBI Bill.
Also Parliament is yet to allocate funding, even as the National Assembly Majority Leader Amos Kimunya downplayed the concern, indicating that it is expected to be factored once IEBC sets the date for the referendum.
Another bump in the process is the delay by the National Assembly in passing the Referendum Bill.
There are two clashing Referendum Bills -- one sponsored by the Justice and Legal Affairs Committee (JLAC) chaired by Muturi Kigano now in its second reading, and the other by Kioni.
“We must keep with the constitutional process. The end product is as good as its process. The legislative process must be undertaken in accordance with the law to avoid legal challenges,” cautioned Kioni.
He added, “There should be no manipulation, short-cuts or malice in the passage of the Bill, as this will be bad for the country even if it has no legal implication.”
Kioni’s committee members, including Ruaraka MP T J Kajwang, called for the merger of the two Bills to have a rich law.
“Our Bill was processed way back before JLAC but lack of foresight on the part of the leadership saw it delay. We need to merge the two to have a better law,” said Kioni.
Lacuna in law
He echoed former Majority Leader Aden Duale’s concerns that there was a lacuna in law on the timelines once the Bill is transmitted to the Speakers of the bicameral House who will introduce the same in the House, and the period provided.
“Ideally, the relevant committee should introduce the Bill in both Houses. This is not a government Bill even though it’s a promoter. The Speaker will give direction based on the decision of the House Business Committee,” said Kioni, adding that if the referendum law is passed, it provides 21 days for Parliament to consider the Bill. The Ndaragua MP faulted the House decision to lock the committee out of the Referendum Bill.