BBI Bill debate kicks off to stormy start

Thursday, April 29th, 2021 00:00 |
National Assembly Speaker Justin Muturi makes his way into the chambers, yesterday. Photo/PD/SAMUEL KARIUKI

Anthony Mwangi and Hillary Mageka

Debate on the Building Bridges Initiative (BBI) Bill kicked off on a stormy note yesterday with MPs differing sharply on whether it was properly before Parliament.

The issue of constitutionality dominated early debate in the National Assembly with members questioning their role in legislating the Bill.

Garissa Township MP Aden Duale was the first to seek the Speaker’s interpretation on the constitutionality of the Bill.

“What is the value of public participation on the Constitution of Kenya Bill as conducted by the joint committee?” asked Duale.

The MP asked Speaker Justin Muturi to address the issue regarding the creation of new constituencies, establishment of the office of the Ombudsman and the roles of National Police Service and the Judicial Service Commission under the proposed dispensation.

“In my view, the drafters of the Constitution did not formulate Article 118 of the Constitution in terms of public participation just for the sake of it,” stated Duale.

He added: “Should the submissions by the public be thrown in the cabinet or should they be used to determine the fate of this Bill?” Duale queried.

Duale further wanted the Speaker to clarify whether submissions of the Joint committee of Justice and Legal Affairs should be relied upon by MPs during voting.

The same differences played out in the Senate with allies of ODM leader Raila Odinga disagreeing on whether to amend or pass the Bill in its current form.

Minority Leader James Orengo kicked off the storm when he said that Parliament’s role cannot be merely ceremonial.

“People think that Parliament is just a legislature. According to this Constitution, Parliament is more than a legislature, indeed, if the role was to rubber-stamp, you’d need more ink than brains,” he charged.

He went on:  “There are people out there who are telling us to support this report as if there’s anybody saying something different. We have a role to play to examine policy issues as a Parliament on behalf of the people.”

“I want to convince members that your role today and that of the National Assembly is not a ceremonial role,” the senator added.

Powers to amend 

But his Nyamira counterpart  Okong’o Omogeni said the joint committee­, which considered the Bill made a finding that Parliament could not amend it.

“So, if we begin by understanding that that is the finding of the committee, then things will be easier for us,” Omogeni stated.

“We should not go down in history as a House of Parliament that did something that jurisprudence will be sneering at, at every twist and turn,” Bungoma Senator Moses Wetang’ula said.

Omogeni explained that legal experts had advised that where there are issues that are nor clear in the Bill, recourse is to go to court and seek interpretation.

“I know there could be some of us who are of the view that under Article 157 you can amend a Bill brought under Article 257.

With tremendous respect, I do not have those answers. What I have is the findings of the committee,” Omogeni said.

If on the other hand the committee had made a finding that Parliament had powers to amend, then, he said, he would have come with proposals to amend.

In the National Assembly, Ugenya MP David Ochieng’ asked Muturi to address the role of Parliament in handling the Bill.

“Can this House amend this Bill? Can we introduce new clauses? The committee concerned had to deal with various legal issues; Mr Speaker would you guide us.

What is the extent of our powers?” Ochieng’ asked. He also questioned whether the Bill was introduced in the House through a popular initiative or if it was an Executive Bill.

“Taxpayers’ money was used in initiating this Bill and thus it ceases being a popularly initiated piece of legislation, if so, does it fit the provisions of Article 257 of the Constitution which states that only a people-driven Bill can pass without amendments,” Ochieng’ posed.

“What about if some of the proposals have effects of upsetting the Constitution, we cannot have two people promoting a coup on the Constitution.”

Ochieng’ further questioned whether the joint committee had access to reports of the BBI taskforce and whether there was a Kenyan, who had asked for 70 additional constituencies.

Public participation

However, the Speaker said the issues raised were not sufficient to stop debate on the matter.

­Mbadi, while defending the Bill, told MPs they could not get everything they wanted in the proposed constitutional changes.

“A lot of our views as a party were captured and others were not but this is a game of give and take.

In a scale of one to 10, I think we are at eight, which is a good score and that is why ODM has asked our supporters to support this Bill even if it comes to the referendum so that Kenyans can know the fate of BBI so that we can move to other matters,” Mbadi said.

He added that the Constitution was created by the people of Kenya and it was the same people who can amend it.

“You cannot call what goes to the people of Kenya as unconstitutional, they are the ones who can make or undo the Constitution.

This is one Bill; this Bill must go to the people of Kenya as one Bill,” he maintained.

Minority Whip Junet Mohammed, on his part, said the process to amend the Constitution was initiated by Kenyans, adding that there is no more public participation than collecting 4 million signatures.

“There is no more public participation than subjecting it through a referendum, let us send the Bill to Kenyans to vote in a referendum,” Junet said. 

The Suna East MP said if the Kenyan people decide to conduct a coup through amending the Constitution, Parliament cannot change it.

“I don’t want my Bill to be mutilated by this House, I belaboured to get the 4 million signatures, I went round the country looking for the signatures; I went ahead and hired a team of experts to look at the Bill and forwarded it to IEBC to verify the signatures and later took it to the 47 counties and I managed to convince 43 counties to support it.

Let us not mutilate this Bill, this is a Bill we are doing for posterity; I am the promoter of this Bill and I am not a small man; nobody else could attempt to do it. If you give a ruling that my Bill is bad, God is watching,” Junet said.

Kikuyu MP Kimani Ichung’wah said the issue of errors in the Bill taken to county assemblies could not be wished away and asked the Speaker to address it in his ruling.

Endebess MP Robert Pukose supported Ichung’wah’s argument, saying while the Constitution requires 24 counties to pass the Bill, only 13 received the correct report and thus rendering the process unconstitutional.

Johana Ng’eno (Emurwa Dikirr) questioned whether it was right for the BBI to delimit boundaries which is the role of the IEBC.

Debate continues today after which MPs are expected to take a vote on the Bill.

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