BBI referendum dilemma, as IEBC wants two years to create 70 constituencies
By Roselyne Obala | April 4th 2021
It is now emerging that time is of the essence in passing the Building Bridges Initiative (BBI) Bill.
Of concern is the proposal to create 70 new constituencies’ which has elicited mixed reactions especially on the legal provisions and timelines.
There is also the proposal to overhaul the Independent and Electoral Commission (IEBC), which is presently not properly constituted after four commissioners resigned.
As per the detailed action plan by the proponents of the Constitution of Kenya (Amendment) Bill, 2020, popularly known as BBI Bill, Parliament was expected to consider the Bill by April 5.
This was to be followed by 60 days, from April 6 for campaigns and the referendum vote conducted by IEBC on or before June 6.
However, this is not the case, as the bicameral House went on recess as a measure to curb the spread of Covid-19.
The Bill was set to be presented for presidential assent between June 7 and 14.
The dilemma in passing the Bill in time to conduct the 2022 polls is the biggest hurdle even as BBI proponents President Uhuru Kenyatta and ODM leader Raila Odinga rally their troops to fast-track the process.
“We shall cross that bridge when we pass the BBI in the referendum,” said Junet Mohammed who is a co-chair of the BBI secretariat.
Some of the ODM leaders, led by Deputy party leader and Kakamega Governor Wycliffe Oparanya have said the passage of the Bill is not possible at the moment and the Sh14 billion requested by IEBC should instead be channeled to the fight against Covid-19.
The boundaries review is a contentious matter even among the members of the joint Justice and Legal Affairs committee (JLAC), who sought guidance from experts.
The committee co-chairs senators Okongo Omogeni and Muturi Kigano requested for more time before tabling a joint report in both Houses.
They said boundaries review is a serious matter.
“The amount of time needed for delimitation/ review of boundaries for constituencies and wards, is a serious matter the committee is confronted with,” said a member of the committee.
In a draft report from the committee, the MPs argue that Article 89(2) of the Constitution stipulates: “Any review of names and boundaries of constituencies shall be completed at least 12 months before a General Election of MPs.”
The next General Election is on August 8, 2021.
Also, Article 89 (4) of the law, provides: “If a General Election is to be held within 12 months after the completion of a review by the commission, the new boundaries shall not take effect for the purposes of that election.
"Any review which goes beyond August 8 cannot take effect for the purposes of the 2022 General Election.”
The BBI Bill seeks to review this.
The schedule has been disrupted by the pandemic leading to the alteration of the August House calendar.
While the IEBC cites breach of law and timelines, the MPs are also sharply divided on the review of boundaries.
IEBC chair Wafula Chebukati, while presenting the commission’s views before the JLAC, faulted the BBI task force for coming up with the number of the constituencies without their input and said he needs two years to complete the process.
Previously, BBI proponents said they used population census figures generated by the Kenya National Bureau of Statistics (KNBS) and a 2015 IEBC report on boundary delimitation to decide the counties to get the additional constituencies, with priority given to those underrepresented in the National Assembly.
“The commission did not give such a report to the BBI team,” Chebukati said.
"The only document we have on boundary review is the Andrew Ligale report issued on March 4, 2012."
He made reference to the 2008 Interim Independent Boundaries Review Commission which was given the mandate to delimit 80 constituencies to be added to 210 constituencies and said the promoters of BBI should have done the same.
Contradict existing articles
According to a draft presentation of the views collected by the committee, IEBC and KNBS stood out.
The report states, the Constitution mandates the commission to delimit and review boundaries for constituencies and wards under Article 89.
“The IEBC is mandated to delimit and review the boundaries of constituencies and wards under Article 89 of the Constitution.
"The schedule purports to share out the 70 new constituencies to counties, but IEBC and several other bodies/individuals presented that by purporting to allocate constituencies to counties, the schedule is in conflict with the provisions of Article 89,” reads the draft.
The IEBC submitted that the review process takes about 6 months and should have commenced by February.
Chebukati held that while BBI promoters are right to create the additional constituencies, they erred in allocating the constituencies to specific counties as the exercise is the preserve of his commission, according to the Constitution.
“A constitutional amendment process can only determine the number of constituencies but should not assign them to respective counties as was done with BBI Bill,” he told MPs.
IEBC revealed that it has started groundwork on boundaries review and is awaiting population data from KNBS and referendum outcome for it to proceed with the exercise.
“KNBS should maintain population data and give it to the relevant agencies to proceed with their mandates and should be directed to provide constituencies and ward population data to IEBC to enable the commission proceed with the review,” reads the draft.
Chebukati warned: “In the event the Bill is passed as is, it will contradict the existing articles 88 (4) (C) and 89 of the Constitution thus presenting possible legal challenges to the delimitation process.”
Opiyo Wandayi, ODM’s political affairs secretary, now want Speakers Justin Muturi (National Assembly) and Ken Lusaka (Senate) to convene Special Sitting not later than Thursday to debate and pass the BBI Bill.
“The Covid-19 pandemic is, apparently, here to stay. We must learn to live with it," he said.
"It is for this reason that I wish to persuade the Leaders of Majority and Minority parties in the National Assembly and Senate to petition the respective Speaker to convene the Special Sitting on April 8 to deal with the Bill.”
He nevertheless stated that the Houses do not need to wait for the report of the joint JLAC that collected views from the public.
“Indeed, if the committee is unable to generate one, it can as well just table the materials it has received from the public during its public hearings in the form of memoranda, petitions, reports and representatives, among others,” Wandayi said.
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