National Assembly Speaker Justin Muturi on Tuesday ruled out any amendments to the Constitution of Kenya (Amendment) Bill, 2020, slamming the brakes on the debate on whether to make changes or not.
Muturi said making amendments to a popular initiative would negate the will of the people.
But in the Senate, a section of members insisted that the Bill should be amended to strike out contentious issues.
Top among them was scrapping off the Woman Representative position and essentially transferring the role to Senate. The BBI Bill proposes two senators for each county, with one of them being a woman.
Senators argued that doing away with the Women Representative position would take away resources allocated to the office.
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The Speaker's ruling means that MPs who have been pushing to amend the Bill will play a ceremonial role in the process before the document can be taken to the people for a referendum.
A section of lawmakers said some clauses were unconstitutional like the proposed creation of 70 new constituencies.
They also highlighted errors in the Bill before the Senate and the National Assembly.
The legislators also claimed that 31 county assemblies had approved an erroneous document and only 11 had the right Bill.
But Muturi said that errors highlighted in the Bill are typographical and have no effect on the substance of the Bill.
“A Bill to amend the Constitution by popular initiative may not be amended by the House as any amendment shall negate the popular will of the people indirectly amending the Constitution,” said Muturi.
“Alterations to the text of such a Bill may only be allowed to correct errors of form or typographical errors before submission for assent as provided in the Standing Orders and I will invoke this provision of the Standing Orders donated by the House at the appropriate stage,” he ruled during on Tuesday’s special sitting.
The Speaker explained that allowing amendments by the MPs implies altering what Kenyans signed for when promoters of the Bill went around the country to collect signatures.
In Senate, Bungoma Senator Moses Wetang’ula opposed the proposal as he urged members to amend the Bill.
“The Women Representative position came with resources… each one gets Sh8 million for every constituency in their county for affirmative action work. This amendment is a clawback on the empowerment of women,” he said.
Wetang’ula also opposed the proposal to create 70 new constituencies terming it usurpation of the role of the Independent Electoral and Boundaries Commission. He also faulted the proposal to have a Judiciary Ombudsman be a person outside the Judiciary.
Nandi Senator Samson Cherargei said passing BBI would burden Kenyans with a bloated Parliament.
“The affirmative fund that was created should have been more beneficial to women and if they (Women Representatives) are reallocated to the Senate they should reallocate the affirmative fund,” he said.
Bomet Senator Christopher Lang’at and his Tharaka Nithi counterpart Kithure Kindiki also opposed the document. Prof Kindiki said that the changes did not reflect the will of the people and that the Bill was “neither a parliamentary nor a popular initiative.”
“The gains in this Bill, which are few, can be made without touching any article of the constitution,” said Kindiki.
But other senators supported the Bill, opposing calls to amend it. Nominated Senator Abshiro Halakhe dismissed talk that scrapping the Woman Representative position was detrimental to the cause of gender equity.
“The two-thirds gender principle has not been realized under the 2010 Constitution… this is our time to try to change that… we are not asking for affirmative action in perpetuity,” she said.
Nominated Senator Naomi Shiyonga said that the changes would ensure gender parity.
“If I am elected directly by my people I will have to represent them with all my energy, other than being nominated,” she said.
“There will never be a time where you can satisfy everyone… let us pass the amendment Bill and moving forward we will support other amendments,” said Kirinyaga Senator Charles Kibiru.
Muturi dismissed claims that there were different versions of the Bill, saying that the Bill submitted to him by the assemblies was similar to the one unveiled at Kenyatta International Conventional Centre (KICC) during the launch of signature collection by President Uhuru Kenyatta and ODM leader Raila Odinga.
He said that no state organ can take away the sovereign will of the people to make amendments to the 2010 Constitution.
“To the extent that the Bill currently before the House touches on various matters listed under Article 255(1) of the Constitution, which the Constitution requires to be submitted to a referendum for approval, any question as to the constitutionality of its provisions is premature,” the Speaker ruled.
Muturi cited collection of a million signatures from registered voters by the proponents of the Bill, in dismissing claims that the initiative was “an executive initiative and not a popular initiative.”
Ugenya MP David Ochieng had claimed that the initiative should not be passed as a popular initiative when it was being championed by the President and Raila.
The Speaker said the document had undergone adequate public participation, including the one conducted by the joint Justice and Legal Affairs Committee.
“I am also satisfied that adequate public participation has been undertaken in respect of the Bill as the Bill by its nature being a popular initiative and the public participation having been undertaken by the two Committees jointly an environment and opportunity was given to the public to have their say on the matter,” said Muturi.
He also dismissed calls by critics of the process that Parliament should consider suspending the process until court cases touching on the matter are determined.
Muturi argued that there was no court order currently stopping Parliament from proceeding with the debate and subsequently take a vote on the Bill.
The Speaker said that Standing Order 89 of the National Assembly cannot oust the obligation on Parliament to introduce and consider a Bill to amend the Constitution by popular initiative without delay; and,
He directed that the Bill proceeds for the second reading and subsequently to the committee of the Whole House before members can take a vote.
The Speaker said that the voting threshold applicable to the second and third reading of the Bill shall be a minimum of 176 Members, being a majority of all Members of the House to have it pass.
“Voting shall be by roll-call. Members will be called out as per the Division List with those seated in the other designated areas being allowed entry into the main Chamber to cast their votes and thereafter immediately exit the Chamber,” directed Muturi.
The Speaker's ruling was triggered by a preliminary objection by Garissa Township MP Aden Duale and his Ugenya counterpart Ochieng last week when they poked holes in the process, citing unconstitutionality on some of the proposals.
Duale had questioned the proposed 70 new constitutions as well as the establishment of the office of the Ombudsman in the Judiciary. He also raised concerns over public participation and whether MPs have the latitude to amend the Bill based on the submissions made during the public participation.
“Public participation ought to be real and not an illusion. We must be very careful not to land in the same ditch that the county assembly of Tana River landed. Mr Speaker, I wish to 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.
Ochieng said: “Can this House amend this document? What is the extent of our role so that we know our far we can go so that we don’t sit here as a conveyor belt? This Bill did not come from Kenyans; it came from two Kenyans. Would you define this as a popular initiative or an executive initiative?"
Muturi said that Parliament should wait for the outcome of court cases challenging the process, as they could easily declare the entire process null and void.
“There are numerous cases, which could declare the whole process. Why should we go through a process that could easily be annulled?” he posed.
[Reports by Brian Otieno,Moses Nyamori and Grace Nganga]