What referendum Bill entails
By Roselyne Obala | March 2nd 2021
As the country’s top leaders, dubbed ‘Super Seven’ hit the ground running this week to drum up support for the Building Bridges Initiative (BBI) report, it is a race against time for public literacy.
The leaders, led by President Uhuru Kenyatta and ODM leader Raila Odinga, will be rallying Kenyans to back the BBI Bill set to be introduced in Parliament before going to a referendum.
The president and Raila met party leaders Kalonzo Musyoka (Wiper), Musalia Mudavadi (ANC), Gideon Moi (Chair- Kanu), Moses Wetang’ula (Ford Kenya) and Charity Ngilu (Narc) at State House, Nairobi last Thursday in readiness for joint countrywide tours to popularise the BBI report.
This came as Speakers Justin Muturi (National Assembly) and Ken Lusaka (Senate) last week informed members that they were in receipt of correspondence on the draft Constitution of Kenya (Amendment) Bill, 2020, passed by more than 40 county assemblies.
The Speakers said the Bill will be introduced in the Houses concurrently and be processed in a parallel manner, despite the role of members being ceremonial.
The top leaders are looking at May as a tentative time to hold the referendum.
Deputy President William Ruto and his allies have raised reservations with some proposals, but he has declared that he will not lead the BBI ‘No’ campaign.
More than 40 county assemblies have endorsed the BBI Bill surpassing the constitutional threshold required to amend the Constitution through a referendum.
But what does the draft Constitution of Kenya (Amendment) Bill, 2020 entail?
A Prime Minister and two deputies will be part of Cabinet. They will not be vetted by Parliament. The PM, who will be the leader of government business in the National Assembly, will also be a member of the National Security Council, which currently has the President, the DP and top security bosses.
Bill of Rights
The Bill proposes to amend Chapter Four of the Constitution on the Bill of Rights. It provides for privacy of personal data of citizens as an emerging area in human rights owing to technology advancement. This will touch on Article 31 of the Constitution on Privacy to incooperate the right to protection of personal data.
The Bill seeks to amend Chapter Six of the law on Leadership and Integrity to boost the fight against corruption by providing a mechanism to expedite investigation, prosecution and trial of cases.
The Bill seeks to amend Chapter Three on Citizenship to introduce a new Article on responsibility of a citizen to enhance patriotism and set out the duties of a citizen to the country.
The new Article 18 (A) of the Constitution on Responsibility of a citizen seeks to inculcate virtues and engender the principles of national ethos, comprising the spirit of oneness, honesty and integrity and to set out moral principles to be adhered to by citizens.
“This Bill seeks to give life to the words of the national anthem that when an individual thrives, the country thrives.”
The draft Bill touches on devolved units including the one man, one shilling revenue sharing among the 47 counties and giving political parties sweeping powers to terminate MCAs’ nominations if they don’t toe the line.
It proposes a recall clause by the electorate for elected members and sponsoring party for the nominated.
“The term of a County Assembly expires on the date of the next election. A member of the county assembly may be recalled before the end of the term of the assembly, by the electorate, for members elected and the nominating political party for members elected from the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender, which will lapse after two general elections (10 years),” reads the Bill.
County assemblies nomination slots shall be allotted on the basis of total votes received by their political party as opposed to the current practice where such allocation is based on seats won by a political party.
The nominated MCAs have 10 years to enjoy these benefits, which will no longer be based on gender top-up, as will be the case in the National Assembly, which will be 15 years.
The Bill makes it mandatory for candidates going for governorship to nominate a deputy from the opposite gender.
The existing disqualification for the MCAs from being qualified to be elected as MPs are removed.
MCAs will be part of the Executive to serve as county ministers and manage the five per cent Ward Development Fund.
It further seeks to amend Article 202 of the Constitution on sharing of revenue.
“Whereas revenue sharing in the Constitution is based on the approval of the most recent audited accounts by the National Assembly, and if the assembly has not approved the accounts, the recent audited accounts of revenue submitted by the Auditor General shall be taken as the accounts of the revenue,” reads the Bill.
County governments will received 35 per cent of the revenue raised annually up from the current 15 per cent, which has been the subject of contention every financial year with the National Government.
The proposals seek to remodel the parliamentary system by including the Executive in the National Assembly to enhance oversight powers of both Houses.
It includes introducing the position of Prime Minister, two deputies, the Leader of Official Opposition, Cabinet ministers and their deputies and the Attorney General. It will be a mixed breed of Cabinet with elected MPs and ex- officials.
The proposal to expand the composition of Parliament to give effect to the gender equity and equality of the vote principles by amending Article 96 on the role of Senate to enhance oversight on matters relating to counties, the voting by delegation is removed. The 94 senators up from the current 67, introducing one male and female senator will give equal voting rights on devolution matters such as impeachment, approval of the formula for sharing revenue and allocation of funds to counties.
This means that the number of MPs will increase from 416 to more than 640.
The Bill proposes that candidates be nominated from a party list for the seats in the National Assembly by amending Article 90 of the law.
The candidates for nomination will comprise those who stood for election with precedence given to those who received the greatest number of votes.
The Bill seeks to amend Article 88 of the Constitution on the functions of IEBC which provides: “The regulation of the process by which parties nominate candidates for elections, the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”
The Bill seeks to take away powers of the IEBC to handle party primaries disputes and vest the same to the Political Parties Disputes Tribunal to expedite the cases and streamline the mandate of the commission.
The Bill also seeks to amend Article 82 on legislation and elections to provide for Parliament to enact legislation imposing sanctions on a political party that fails to ensure that the list of one third of such candidates are of the same gender.
“This is to compel political parties to facilitate the actualisation of the gender rule in electoral process from the nomination stage,” reads the Bill.
Also, the Bill seeks to amend Article 89 of the Constitution on delimitation and electoral units to increase the number of constituencies from 290 to 360.
“This is to facilitate attainment of fair representation in the National Assembly and to actualise the aspiration of the quality of the vote principle, especially in the current underrepresented electoral areas.
The IEBC will have to create the 70 constituencies before the next elections.
The membership of the National Assembly will include the leader of official opposition who will be an ex-official, alongside the AG, half of the Cabinet, four nomination slots for person with disability, youth and the special top-up seats for women.
The Bill seeks to address the leadership vacuum in the Judiciary and other constitutional offices.
It proposes to establish the office of the Ombudsman, who will serve for five years renewable once, will checkmate the officers by addressing complaints from the public and recommend reprimand and suspension.
The move targets to cure the leadership wrangles that have characterised the office of the Chief Justice as witnessed with the exit of Willy Mutunga and David Maraga.
Subsequently, to address the lacuna in the exit of officers as stipulated in Article 259 of the Constitution: “If a function or power conferred on a person under this Constitution is exercisable by the person only on the advice or recommendation, with the approval or consent of, or on consultation with, another person, the function may be performed or the power exercised only on that advice, recommendation, with that approval or consent, or after that consultation, except to the extent that this Constitution provides otherwise.”
The Bill states: “Where an appointive office with tenure is due to fall vacant, the process of replacing the holder of that office shall commence at least six months before the lapse of term of office holder.”
The Bill also pegs the security of tenure of the Chief Justice with that of the Deputy Chief Justice and the president of the Court of Appeal and High Court to serve for five years non-renewable.
For one to qualify for appointment as Judge of the High Court, Court of Appeal or Supreme Court, they will be required to have 10 years experience, 15 years and 20 years, respectively.
Members elected to serve in JSC will not practice.
Chapter 15 on commissions and independent offices
Presently, Article 157 of the Constitution on the establishment of the Office of the Director of Public Prosecutions (ODPP) which is not under chapter 15, requires that the qualifications for appointment as DPP are the same as for the appointment as a judge of the High Court.
“This is to enhance qualification for appointment as DPP to be same as that of the Judge of the Court of Appeal,” reads the Bill.
The proposal seeks to elevate the DPP’s office to an independent one alongside the Auditor General and Controller of Budgets (CoB) through amendments to Article 248 of the Constitution.
The DPP will fall under Chapter 15 on Commissions and Independent offices and shall hold office for a term of eight years and shall not be eligible for re-appointment.
The qualification for the office holder will be equivalent to the Court of Appeal Judge.
The Youth Commission
The Bill seeks to establish a Youth Commission to deal with youth issues by amending Article 55 of the law on their rights. It will consist of a chairman and six members appointed by the president with the approval of the Senate and hold office for a single term of four years.
The National Police Service
The Bill proposes to establish the National Police Service by Amending Article 243 to include the Directorate of Criminal Investigations (DCI) as the third arm, with the Kenya Police and the Administration Police.
It will also provide clarity on the centrality of the command of the Inspector General of Police to the police. The Deputy IG shall head the DCI.
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