A group of ODM MPs has backed the BBI Bill in its entirety, distancing the party Raila Odinga leads from the position taken by some members, who have signed a parliamentary report that labels sections of the proposed law unconstitutional.
On a day a report of a joint committee of Parliament revealed how the lawmakers tried to sidestep legal landmines in the Bill to amend the Constitution, the fallout arising from the unconstitutional verdict on the clause on new constituencies rocked the former prime minister’s camp.
Led by ODM Director of Political Affairs Opiyo Wandayi, the 14 MPs dismissed reports of divisions in ODM, seemingly distancing the party from the action by Senate Minority Leader James Orengo, Rarieda MP Otiende Amollo and Nyamira Senator Okong’o Omogeni.
The trio are signatories to a majority report that declared the schedule that distributes the proposed 70 extra constituencies as unconstitutional, a finding that has rattled Mr Odinga’s and his handshake partner President Kenyatta’s camps.
The report, which will be considered by the National Assembly during a Special Sitting tomorrow and Thursday, says while the proposal to add the 70 constituencies to make them 360 was within the Building Bridges Initiative (BBI) promoters’ powers, the distribution of the new electoral units among 28 counties was unconstitutional as it usurped the electoral commission’s role.
National Assembly Minority Whip Junet Mohamed, MPs Olago Aluoch (Kisumu West) and Peter Kaluma (Homa Bay Town) are among the MPs who did not append their signatures on the majority report that has the adverse finding, or a minority one that criticised the action.
Mr Wandayi and six other ODM MPs yesterday said the Odinga-led party was fully behind the BBI report. The contestation over the contents of the Bill, they said, were part of last-minute efforts by the opponents of the process to derail its implementation and deny Kenyans the gains set to be brought about by the document.
“This Bill has been endorsed by an overwhelming majority of county assemblies after being embraced by millions of the people of Kenya. It is in this context that we have convened here as elected leaders to express singular and undivided support for the BBI as endorsed by the people of Kenya and the majority of county assemblies,” said Mr Wandayi, who is also the Ugunja MP.
Mr Wandayi said ODM will not go back on the March 2018 Uhuru-Raila handshake, insisting that Parliament had no role in amending the BBI document.
He said the responsibility of MPs was to either endorse or reject the Bill in its entirety, and that those calling for changes were “delusional”.
The finding in the majority report, which could threaten the BBI process, is deemed as not in the interest of Mr Odinga and President Kenyatta’s cause, hence the action yesterday by ODM to assure its support for the referendum campaign on the day the report was submitted to Senate Speaker Ken Lusaka and his National Assembly counterpart Justin Muturi.
In his minority report, Mr Sakaja dismisses the majority’s position that BBI had no right to allocate the proposed 70 constituencies to counties.
Distribution of constituencies
“The allocation of the constituencies as set out in the proposed Second Schedule of the Bill remains the proposal or the idea of the promoters and there can be no justification for Parliament to purport to oust this proposal on grounds of legal technicalities. This would amount to usurpation of the constituent sovereign power, which belongs to the people.”
Mr Sakaja dismissed the committee’s assertion that the distribution of the constituencies among the counties amounted to delimitation, a job that is the preserve of the Independent Electoral and Boundaries Commission (IEBC).
“What the promoters of the BBI have proposed cannot be conclusively defined as delimitation. This is an allocation of constituencies and in order for the same to take effect, the provision of Article 89 applies, save for clause (4), which has been proposed to be ousted. Consequently, the IEBC still retains powers to delimit,” Mr Sakaja said.
MPs Jennifer Shamala, John Munene, Anthony Kiai, Robert Gichimu, Zuleikha Hassan and Emmanuel Wangwe signed the minority report.
And while the landmine of the 70 constituencies was the one the committee could not come to an agreement, its report highlighted how they tried to sidestep other legal landmines.
Among the things the MPs declared unconstitutional, but let them pass saying they should be amended later, were the removal of functions of the National Police Service Commission (NPSC), as well as an amendment to give what it said will be unconstitutional powers to the Judicial Service Commission that will see judges punished even before investigations are done.
MPs also faulted the removal of vetting of Cabinet Secretaries and senior government officers, even as they called for amendments to provisions on the Judiciary Ombudsman.
The MPs declared as unconstitutional the provision that the Judicial Service Commission will have powers to “take disciplinary action against a judge even before any investigations have been conducted”.
On the NPSC, the committee faulted an amendment that transfers key functions of the agency to the Inspector-General.
On vetting of CSs and senior officials, the committee said: “Whereas the proposed deletion of the requirement to vet Cabinet ministers, Secretary to the Cabinet, and Principal Secretaries is not unconstitutional, it is highly undesirable.”
On whether Parliament can stop an unconstitutional amendment from being passed, MPs removed the two Houses from the role, throwing the ball back to the courts and the people, whom they said had the final say in a popular initiative even if Parliament were to shoot down such an amendment on the floor.
On the errors noted in the Bill, including the citing of a non-existent Article 87(7) when the BBI wanted to amend Article 89 (7) on delimitation of boundaries, as well as the citing of a non-existent Clause 3, instead of Clause 2 in Article 97 on the relationship between the two levels of government, the joint committee advised against the correction of errors at this point.
This deals yet another blow to Deputy President William Ruto, who has consistently called for a multiple-question referendum.
