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Caucus picks 10 issues in BBI for new reform push

By Jacob Ng’etich | May 30th 2021
Parliament buildings, Senate during the 18th Annual National Prayer Breakfast at the Parliament buildings, Nairobi. [Elvis Ogina, Standard]

Bipartisan MPs spearheading minimum reforms before next year’s elections have identified at least ten non-controversial proposals in the Building Bridges Initiative (BBI) Bill to pursue through a parliamentary route.

The creation of a Prime Minister’s position and two deputies, increase in allocation of funds to counties, creation of ward fund, restructuring the electoral agency, re-looking security laws and expediting corruption cases are top on their agenda.

Other issues include the number of constituencies, equalisation fund to the counties, the two-thirds gender rule and seven-year tax break for youthful entrepreneurs.

The group of 13 members from the National Assembly and Senate will have a luncheon in Nairobi on Tuesday to deliberate the zero draft being worked on by their technical team. They will then start consensus-building. 

A similar process was done in 1997 through the Inter-Parties Parliamentary Group (IPPG) that led to peaceful elections the same year. 

The caucus’s move is informed by recent High Court judgement that declared BBI-driven Constitution of Kenya Bill 2020 unconstitutional. 

A five-judge bench comprising Justices Joel Ngugi, George Odunga, Teresia Matheka, Chacha Mwita and Jairus Ngaah declared BBI illegal, null and void, thus halting the political baby-child of President Uhuru Kenyatta and his Handshake partner ODM leader Raila Odinga.

Former National Assembly majority leader Aden Duale said the move sought to fast-track the reform process ahead of the 2022 General Election.

“Key among the reforms is a review of the electoral and security laws, including the role of police in elections, to stop what we recently witnessed in the some by-elections. We will then incorporate the pro-people ideas in the BBI Bill,” said Duale.

He added that the Independent Electoral and Boundaries Commission (IEBC) should be fully constituted one year to the General Election. He added they would also seek to have the Constituency Development Fund (CDF) in the law.

Electoral laws

Makueni Senator Mutula Kilonzo Junior told TheSunday Standard that apart from restructuring the IEBC, they would review other electoral laws, including conduct of elections, nominations, and dispute resolution.

Justice George Odunga, presiding Judge, Justice Joel Ngugi and Justice Jairus Ngaah during the delivery of Judgement by a five-Judge Bench on the Constitutionalism of BBI and Petition seeking to stop IEBC from conducting a referendum to implement the BBI Bill. [Collins Kweyu,Standard]

He said they were still mulling over bringing the Executive into Parliament and whether it would need a referendum.

“We will look at all the issues and review what can pass and avoid those that need a referendum because it is not easy to hold it before elections,” he said.

The group brings together senators Kilonzo Jr, James Orengo (Siaya), Mithika Linturi (Meru), Johnson Sakaja (Nairobi) and Aaron Cheruiyot (Kericho).

Legislators include Gatundu South’s Moses Kuria, Abdulswamad Nassir (Mvita), Sakwa Bunyasi (Nambale), Shadrack Mose (Kitutu Masaba), Soipan Tuya (Narok Woman Rep), Cecily Mbarire (nominated) and Otiende Amolo (Rarieda).

Kuria said the creation a Prime Minister’s position through a parliamentary process was feasible given that all they need is to create a position of a chief minister and rename it.

“There is nothing that stops Parliament from creating the position,” said Kuria.

The BBI process had sought to change at least 78 clauses of the Constitution but Sakaja said they had isolated those that were controversial and would ask different stakeholders what their irreducible minimums were.

“Issues like doing away with an Ombudsman in the Judiciary, creation of 70 constituencies, two-thirds top up in the National Assembly and Senate and the issue of male and female senator reverting to woman representative as it was are controversial but we will navigate through them,” Sakaja said.

Comprehensive reforms

The strengthening of provisions on the formula of creating constituencies in Article 89 to ensure equality of vote and increase constituencies by 70 and let IEBC determine the distribution in strict adherence to the formula was also on the table.

“This will be a deliberative and consensus-building process over the next two weeks that will have people sitting together. A Constitution is about the people and should ideally be a consensus document,” said Sakaja.

However, Ugunja MP Opiyo Wandayi accused a section of leaders in government and Opposition of scheming to scuttle the BBI reforms agenda.

“Those who cobbled together the IPPG talks did so with the objective of scuttling the clamour for comprehensive reforms and they succeeded. That is why it took us another decade to realise the reforms we were fighting for in 1997,” said Wandayi.

Wandayi, also the ODM secretary for political affairs, said they were wary of the new move. “We are going to reject those attempts until the matter of BBI is concluded in the courts,” He added that any attempts to dismember the BBI through the IPPG would be rejected.

Prof Hassan Mwakimako, a board member of Muhuri, which also petitioned the BBI process in court, said Parliament slept on the job.

“They have woken up whereas we called on them from the word go to take charge of the process; now they are trying to reinvent the wheel.”  [Additional reporting by Isaiah Gwengi]


Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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