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Push and pull as Parliament debates BBI in special sitting

Parliament buildings, Nairobi on April 28, 2021 [Elvis Ogina, Standard]

There was high drama in the House yesterday as legislators debated the BBI Bill, with the arrest of a senator and a spirited attempt to scuttle the process of changing the Constitution. 

Allies of Deputy President William Ruto pushed for the suspension of the Special Sitting in the National Assembly on the Constitution of Kenya (Amendment) Bill 2020.

In the Senate, after an adjournment of the House sitting in the morning to allow members read the report by the Committee of the Justice and Legal Affairs, the afternoon session took a different twist when Ruto ally Senator Mithika Linturi was arrested.

It forced Speaker Ken Lusaka to adjourn the House for 30 minutes in search of the senator, who was reportedly being held by sleuths from the Directorate of Criminal Investigations (DCI) and only resumed after Linturi re-surfaced.

In the National Assembly, Tharaka Nithi MP Gitonga Murugara, Ndindi Nyoro (Kiharu) and Jubilee nominated MP David Sankok raised objections against the afternoon sitting citing various reasons that were all ruled out of order by Speaker Justin Muturi.

Earlier, Nyoro called for suspension of the special sitting in solidarity with Meru Senator Mithika Linturi, who had been picked from the precincts of Parliament by DCI officers.

“From where I sit, an affront to one of us is an affront to all of us. I am referencing to what happened in the precinct of this Parliament where one of us, Mithika Linturi, was kidnapped by officers from the DCI,” said Nyoro.

“We have seen an alarming rate of intimidation. Senator Mithika was actually kidnapped by people suspected to be DCI. It is barbaric at a time we are about to debate a document that seeks to expand the democratic space,” he added.

Garissa Township MP Aden Duale and his Ugenya counterpart David Ochieng also poked holes in some proposals of the Bill.

Duale questioned the proposed 70 additional constitutions and the proposal to establish of the office of the Ombudsman in the Judiciary. He raised concerns over public participation and whether MPs have latitude to amend the Bill based on the submissions made during public participation.

“Public participation ought to be real and not an illusion. We must be careful not to land in the same ditch that county assembly of Tana River landed. Mr Speaker, I seek your guidance on the following; what is the value of public participation by the joint committee, should the submission inform debate at the second reading, should it inform the vote by the MPs,” said Duale.

Speaker Muturi ruled the lawmaker out of order while informing the House that the senator was already back in the Chambers.

Murugara also unsuccessfully sought the Speaker’s intervention to suspend the sitting and give MPs seven days to read and understand the report by the Justice and Legal Affairs Committee (JLAC) before they can debate.

Time to read

“Most members have not read the 170 paged document tabled this morning. Sincerely we cannot debate this document unless we are given time to read before we can debate. I beseech you to use your discretion and allow at least 7 days to read the Bill,” said the MP.

Sankok also challenged the process, citing the 90-day constitutional timeline set out in Article 256 (1) of the 2010 Constitution.

According to the Article, a constitutional amendment Bill shall not be called for second reading in either House within ninety days after the first reading of the Bill in that House. This clause, however, applies only to a parliamentary initiative.

“Unfortunately, the 90-day timelines only applies to a parliamentary initiative. It does not apply to a popular initiative,” said Muturi in his ruling.

The proceedings in the National Assembly ran concurrently with that of the Senate where the House also debated the BBI Bill.

Senate Speaker Ken Lusaka (right) receives the BBI Report from the Senate Legal committee members led by Senators Okongo Omogeni (left) and Mutula Kilonzo Jnr outside the Senate Chambers, Nairobi on April 26, 2021 [Elvis Ogina, Standard]

There was drama in the Senate when the House re-convened for the afternoon session, when Kericho Senator Aaron Cheruiyot rose on a point of order and informed the Senate that Linturi had been arrested.

Police reports indicate the Senator was arrested over suspected forgery but shortly released on free bond. He was ordered to report to the DCI offices on Thursday morning.

The legislators protested the arrest saying the session would only proceed after the Senator was released. Later, Linturi said he had been arrested on his way to the Senate.

“Mr Speaker a member of parliament on his way to Parliament or when Parliament is in session should not be arrested without speaker's consent. I have been a victim, and if we let it continue, policemen will some day storm these chambers and arrest the speaker,” Siaya Senator James Orengo protested.

Orengo said a time has come for the Speaker to candidly communicate with the other arms of government to sort out the mess. “Until we have a proper answer as to why Linturi was arrested, this House should adjourn until further notice,” Orengo protested.

Speaker Lusaka granted the request to allow time to inquire about the arrest. During the morning session, Lusaka granted another request to adjourn the sitting after members protested that they needed time to read the documents. The sitting had been pushed to 2.30pm.

“Following the request to read, I hereby allow the request. The Senate stands adjourned until 2.30pm today,” the speaker ruled.

In a heated session, senators insisted they be provided with hard copies of the JLAC committee report on the Building Bridges Initiative (BBI) Bill.

Senators had been provided with the soft copy of the report but Bungoma Senator Moses Wetang'ula stood on a point of order and demanded that they be provided with the hard copy before the debate.

The debate by the senators majored on whether Parliament had powers to amend the Bill.

Wetangula suggested Parliament has powers to open and review the Bill arguing that it cannot have been the wisdom and intention of the framers of the Constitution to make Parliament a bystander in the law-making process.

"We must open ourselves in our thinking so that we can bisect and dissect so that we give Kenyans something that is important and move it forward. We need, as a House, to look at the national mood. As we want to help the country, we must remember that the foundation of the 2010 Constitution and the philosophy therein was to right the wrongs of the country," said Wetang'ula.

Nyamira Senator Okong'o Omogeni said he was willing to take the senators through the report in a Kamukunji of the House.

"Mr Speaker as we go out to read the document if you can allow me I can use the opportunity in a Kamukunji to take the members through the document so that they can be up to speed with the report," he said.

But Nandi Senator Samson Cherargei differed with Omogeni, saying every senator should be allowed to have an independent opinion.

"We might attend your Kamukunji and you use it to indoctrinate our minds to understand it your way," said Cherargei.

Suba North MP Millie Odhiambo said: "While we have not yet heard the opportunity to read the report of the joint committee, there are questions. Does the Constitution provide for an Executive initiative? Can Kenyans pass a system of law that is sui generis and recognises our realities? Can a proposed amendment be unconstitutional.”

Wetang'ula suggested that they will try and open the document. He said it was confounding that the committee was recommending that they pass the law then let the courts interpret it.

"What we are doing here means that, we are not debating and we are not passing, we are just bystanders," he said.

The senator questioned clauses and issues in the report, which Omogeni, who was a co-chair of the committee, said were unreasonable and unconstitutional.

Orengo said there are people who died for Kenya to have the current Constitution, and even as the country was amending it, they must have that in mind and make contributions that would add value to the law.

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