AG: MCAs have no power to amend referendum bill

Tuesday, January 26th, 2021 00:00 |
Attorney General Paul Kihara Kariuki during a past function. Photo/PD/File

The role of county assemblies in the proposed referendum should be restricted to approving or rejecting the Constitutional Amendment Draft Bill, but not introducing further amendments to the Bill, Attorney General Paul Kihara Kariuki has said.

In his response to three Advisory Opinion applications lodged at the Supreme Court by Makueni Governor Kivutha Kibwana together with Kericho and Nandi county assemblies, the AG said there is no legal requirement that approval of the constitutional amendment draft Bill should be taken through the same process as legislation by a county assembly.

The three had petitioned the court to advice whether a bill to amend the Constitution submitted to the county assembly for approval in terms of Article 257(6) of the Constitution, has to be processed in the same manner as other bills in the county assembly. 

Absurd scenario

“Any revisions to the content of the draft amendment Bill will defeat the essence of amendment by popular initiative.

Therefore, public participation on the draft bill has to be limited to informing a county assembly’s decision to approve or reject the draft Bill since the county assembly cannot effect any amendments to the Bill,” reads the AG advice. 

In his response, Kihara says allowing county assemblies to amend a constitutional amendment draft bill would lead to an absurd scenario where there would potentially be different Bills emanating from the 47 counties for submission to parliament.

He insists that the county assembly is under duty to ensure public participation, and thus the exercise should be in respect of the question whether or not the MCAs approve the Bill.

He says there is nothing in law that bars the submission of an entire bill and those that require a referendum.

According to him, in the absence of any relevant legislation on this matter in the county, the question whether or not to approve a draft bill to amend the Constitution, shall be decided by the county assembly by a majority of the members of the county assembly present and voting.

“It is our view that the requirements for such a number of signatures in endorsements of an amendment proposal, would be rendered moot if county assemblies were to be allowed to amend the draft bill,” Kihara says.

“The draft bill is advocated for by promoters who would have identified the various provisions of the constitution that they wish to have amended.

The proposal leading to the draft bill will have secured at least one million signatures verified by the Independent Electoral  Boundaries Commission,”says the AG.   

In regard to a request by governor Kibwana for the apex court to offer guidance on whether the State can initiate a constitutional amendment through a popular initiative, the AG answered in the affirmative. 

He said the Constitution does not prevent the government at the national or county level, State organ or a public officer, from promoting a constitutional amendment through the popular initiative route. 

“There is nothing that prevents any of the entities and officers concerned, from taking a lead role in the initiation of an amendment by popular initiative,” he said. 

Yesterday AG’s Lawyer Emmanuel Bitta told the Supreme Court Judges led by Acting Chief Justice Philomena Mwilu, Isaac Lenaola, Smokin Wanjala, Mohamed Ibrahim and Njoki Ndungu, that there are 10 other cases related to the BBI constitutional amendment filed at the High Court,  pending determination.

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