BBI proponents in Catch-22 spot after shocker

Wednesday, September 23rd, 2020 00:00 |
Chief Justice and President of Supreme Court, David Maraga. Photo/PD/CHARLES MATHAI

By Emeke-Gekara Mayaka

The political class and legal experts were yesterday divided on the implications of the advisory by the Chief Justice David Maraga for President Uhuru Kenyatta to dissolve parliament on the Building Bridges Initiative (BBI) report.

While a section of politicians and legal experts were upbeat that the advisory could re-energise the BBI with MPs yesterday calling for its implementation to address gaps in the constitution, others maintained that it dealt a death knell to the push for constitutional changes.

 Parliament was meant to play a central role in the passing of Bills meant to implement reforms proposed in the BBI report among them the expansion of the Executive.

 The National Assembly is currently debating a referendum Bill that is meant to lay ground for a possible vote on the BBI proposals.

 According to Machakos governor Alfred Mutua and former Mandera Central MP Abdikadir Mohammed, the Maraga advisory may create a “sense of urgency” and “justification”  for the BBI campaign.  

It could also be cited as a ready platform for changes in the 2010 Constitution, including the two-thirds gender rule.

BBI to address gender rule

 National Assembly Speaker Justin Muturi also pointed out that the gender-rule could be addressed through the BBI.

“Given the current efforts and initiatives to amend the Constitution that are currently underway such as the Building Bridges Initiative (BBI), the issue on two-thirds gender rule can be subjected to a referendum in the event the same happens,” he said.

“Owing to the cost implications of implementing the two-thirds gender rule through other mechanisms such as nomination and topping up, it is prudent if the matter were to be subjected to the people once more for a reevaluation or to propose ways of achieving two-thirds gender rule.”

Minority Leader John Mbadi criticised Maraga’s advisory saying “no mad man” would dissolve Parliament.

 “The only route to solve this problem is through the BBI. The people of Kenya must pronounce themselves on this matter through a referendum.”

Already, President Uhuru and Opposition chief Raila Odinga had re-organised the leadership of key House committees to align them to the BBI agenda.

“Maraga’s advice gives the proponents of the BBI an entry point and a justification for urgency. 

Those keen on BBI can cite the gender rule as among the issues that need to be addressed.

The advisory has created a linkage between the BBI and the challenges in the Constitution that require amendments,” said Mohammed, a former presidential adviser on the Constitution.

Kisumu Town West MP Olago Aluoch told Parliament that BBI was “the only way” to address contradictions in the Constitution. And according to Mutua, the decision might re-energise BBI proponents.   

“It will give BBI a fresh opportunity. This country is ripe for a revolution. The chickens are coming home to roost.

It is sign of our bad habits. We have got reports and policy papers that have not been implemented because of impunity.   It is a wake up call,” he told People Daily.

Creation of positions 

Uhuru and Raila have been pushing for the BBI initiative which among other things proposes creation of the position of prime minister and two deputies to ensure inclusivity in governance.

 Deputy President William Ruto and his supporters however expressed reservations about the campaign saying it was meant to help Raila get into power through the backdoor.

Ruto’s allies yesterday argued that the Maraga decision had dealt a blow to the BBI.

“The advice by Maraga for the dissolution of Parliament is a death sentence for the BBI.  With this reggae is dead.

Now that Parliament has been declared unconstitutional its decisions will be delayed.

The appeal by the Parliamentary Service Commission will take at least six months.

There is no referendum law and it will be difficult to organize a referendum within the period,” said Soy MP Caleb Kositany, a vocal Ruto supporter.

 Muturi in June forwarded the Referendum Bill  2010  to the Constitution Implementation Oversight Committee chaired by Ndaragwa MP Jeremiah Kioni for  public participation.

The draft law known as the Referendum Bill 2020, if approved by Parliament, will provide for the procedure of the approval of an amendment to the Constitution by a referendum.

President Uhuru has been categorical that Kenya was at a “constitutional moment” to correct gaps in the Supreme law.

But speaking to People Daily, Tiaty MP William Kamket argued that the   gender rule was “unenforceable” and suggested a constitutional amendment

“It is futile to dissolve Parliament. What if Parliament is dissolved and the new one does not meet the threshold?

Besides, there is no room for parliamentary elections only. We elect all our leaders at once.

It means all other elective positions must go for elections, including the President, MCA and governors.”

Maraga advised for dissolution of Parliament for failure to enact legislation within a specific period.

Article 261(7) says: “If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.”

Parliament was to enact the gender law within five years after the promulgation of the Constitution in 2010 but it has not happened 10 years later.

In his advice to the President, the CJ said that the mechanism for the dissolution of Parliament, irrespective of the consequences, is the radical remedy that Kenyans desired in order to incentivise the political elites to adhere to and fully operationalise the transformational agenda of the Constitution.

“Let us endure pain if only to remind the electorate to hold their parliamentary representatives accountable,” Mr Maraga said.

“There is no doubt the dissolution of Parliament will cause inconvenience and even economic hardship.

The fact that Kenya is in the midst of the coronavirus pandemic only exacerbates the potential impact of the decision.

Yet that is the clear result Kenyans desired for Parliament’s failure to enact legislation they deemed necessary.

We must never forget that more often than not, there is no gain without pain,” said the CJ.

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