Ruto allies' bid to resurrect BBI Bill's provisions they dismissed

William Ruto, Uhuru Kenyatta (centre), and Raila Odinga during the launch of the BBI report at the Bomas of Kenya in November 2019. [Stafford Ondego, Standard]

The proposal by National Assembly Majority Leader Kimani Ichungwa to amend the Constitution to establish the office of prime minister is the clearest sign that elements of the Building Bridges Initiative Bill will be resurrected.

President William Ruto and his lieutenants teamed up with a section of civil rights groups to oppose efforts by former President Uhuru Kenyatta and his handshake partner, ODM leader Raila Odinga, to ‘mutilate the 2010 Constitution.’

President Ruto vehemently opposed the introduction of the office of prime minister and two deputy posts, saying the move was not for the good of Kenyans but aimed at advancing selfish interests of a few leaders.

“The suggestion on prime minister post has two problems: It does not solve the problem, which is that we need a functional, constitutional official opposition; and if created, it would still be taken by the winning party,” the then deputy president said.

The President now proposes for the formula to be replicated at county level where the leader of opposition would take leadership of the opposition in the National Assembly.

“The Deputy President should take over the leadership of Government Business in Parliament while deputy governors would do the same in county assemblies,” he said.

National Assembly Majority Leader Kimani Ichungwa. [Elvis Ogina, Standard]

“Explain to me how having a president who will appoint a prime minister from the winning coalition and runner’s up being opposition leader will sort out the ‘winner-takes-it-all’ question. Forgive me if I’m slow,” Dr Ruto said during the launch of the BBI report at Bomas of Kenya.

However, Ichungwa on May 2, welcomed a public petition by Mr Victor Okul, saying the proposal to introduce the office of prime minister and a deputy premier was timely.

“Having reviewed the prayer by the petitioner for the establishment of the office of prime minister and deputy prime minister, and leader of official opposition, I note that this is indeed timely and the petitioner seeks to enhance inclusiveness and promote unity in the country by providing for greater representation of different regions and communities in government,” he said.

According to the communication from the Speaker’s office, the petitioner was convinced that the winner-takes-all system is regressive, particularly in light of the fact that the office of prime minister, deputy prime minister, and leader of opposition were part of the changes various Kenyans had proposed to the draft constitution. “The current system is to blame for the divisive presidential elections that have been witnessed in the country since the promulgation of the 2010 Constitution,” read the statement by the petitioner.

Notably, the opposition, that pushed for the failed BBI, has also welcomed the initiative to amend the Constitution but has differed on the approach, maintaining the amendment must be done through a referendum and not through Parliament.

Minority Leader Opiyo Wandayi said the proposal sought to alter the composition of Parliament and as such required a referendum.

“Article 255 of the Constitution directs that a proposal of that nature can only be taken to the people to decide,” he said.

Minority Leader Opiyo Wandayi. [Elvis Ogina, Standard]

“Azimio has always supported the proposed changes which mirror the failed BBI Bill because we have been of the view that the country needs to adopt a parliamentary system of government as opposed to pure presidential one,” he added.

One man one vote

At the same time, at least five MPs allied to Kenya Kwanza government have written to the National Assembly seeking to anchor the one man, one vote, one shilling formula in revenue allocation in the Constitution.

Deputy President Rigathi Gachagua on April 31 while at Thika Stadium announced that he had summoned MPs from Mt Kenya region to draft a Bill to address inequities over revenue sharing.

“We must fight for our rights, we have directed our MPs to draft a law on one-man-one-vote-one-shilling so that the revenue resources can be commensurate with the population; if we do that, our affairs will be addressed,” he said.

Githunguri MP Gathoni Wamuchomba told The Sunday Standard that following the proposal to introduce the office of prime minister, she would be writing to the Speaker to have all the revenue allocation formula proposals included in the debate.

“It is a constitutional moment for the country and a referendum is inevitable; the five proposals seeking to entrench a revenue formula based on population will be discussed together with that of introduction of the prime minister’s office,” said Wamuchomba.

She said other issues that Mt Kenya MPs will be pushing for in the national discourse will be gender parity.

House initiative

Constitutional lawyers have observed that all the proposals being fronted can only be pushed through a referendum, saying Parliament cannot impose the offices on tax payers.

According to lawyer Bobby Mkangi, even if the Bill comes as a parliamentary initiative, it is Kenyans who have the final say on a proposal to alter the structure of governance and that can only be done through the ballot.

Lawyer Bobby Mkangi (left). [Kipsang Joseph, Standard]

Article 256 explains the amendment of the Constitution through a parliamentary initiative, while Article 257 entails how to amend the Constitution through a popular initiative.

“A Bill to amend this Constitution shall have been passed by Parliament when each House of Parliament has passed the Bill, in both its second and third readings, by not less than two-thirds of all the members of that House,” Article 256(d) reads.

However, Article 255 gives conditions under which the Constitution can be amended via a referendum.

The conditions are supremacy of the Constitution, the independence of the Judiciary, and commissions and independent offices to which Chapter 15 applies, the functions of Parliament, the objects, principles and structure of devolved government, among others. “A proposed amendment shall be approved by a referendum under Clause (1) if at least 20 per cent of the registered voters in each of at least half of the counties vote in the referendum; and the amendment is supported by a simple majority of the citizens voting in the referendum,” the Constitution reads.

However, political analyst Prof Gitile Naituli observed that what Ruto’s administration is doing by introducing the Bill is to legitimise what he has been implementing, and which he contends violates the Constitution.

“The Constitution has not provided for the office of the prime minister but the Kenya Kwanza administration introduced the position and named it Prime Cabinet Secretary,” he said.

“The majority in the National Assembly amended the Standing Orders to allow Cabinet Secretaries to appear before the House while the Constitution only allows them to appear in committees; these are the wrongs that the administration wants to sanitise through the amendment,” said Prof Naituli. Former Murang’a Governor Mwangi wa Iria, who has become a darling of the opposition, has welcomed the move quoting the words of former President Uhuru Kenyatta who said “BBI is just but a dream deferred, one day, someday, it will happen. A country cannot survive unfair and skewed representation.”

“They have seen the road to Damascus; they only opposed the referendum because it was being fronted by Uhuru and Raila Odinga,” said Wa Iria, adding that the BBI plan has become a stone that was rejected by builders only for it to turn out to be the cornerstone.