The proposal in the Constitution of Kenya (Amendment) Bill, 2020, to create 70 constituencies is unconstitutional as it usurps the powers of the electoral agency, a joint committee of the Senate and National Assembly has said.
The finding in the report that should be tabled at the two Houses is the latest twist to the Building Bridges Initiative (BBI) to amend the Constitution after reports that county assemblies debated and passed different versions of the bill.
National Assembly Majority Leader Amos Kimunya has petitioned Speaker Justin Muturi for a special sitting on Tuesday next week.
However, the finding of unconstitutionality has split the Joint Justice and Legal Affairs Committee of the National Assembly and the Senate’s Justice and Human Rights team, with Nairobi Senator Johnson Sakaja writing a minority report in which he argues that the use of the term “unconstitutional” is “extremist”.
As a pointer to the mobilisation that will likely ensue, Kiambu Senator Kimani Wamatangi is whipping fellow lawmakers in a last ditch attempt to have them defect from the majority report and support Senator Sakaja’s position.
For his part, the Nairobi senator told the Saturday Nation that six MPs have signed up to his minority position “and many more who were out of town “have indicated willingness to do so”.
In the extracts of the majority report seen by the Saturday Nation , the MPs argue that even though the Constitution is clear on the powers of the Independent Electoral and Boundaries Commission (IEBC) to review the names and boundaries of constituencies, the promoters of the Constitution of Kenya (Amendment) Bill, 2020 have gone ahead to not only “set the number of constituencies through an amendment to Article 89(1) of the Constitution but have also detailed where the additional constituencies shall be and stipulated this in the Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020”.
“The committees noted that the problem with this approach is that the power to allocate and designate constituencies is vested on the IEBC under Article 89(2) of the Constitution, following a very elaborate procedure. IEBC has the exclusive constitutional mandate to determine the names and boundaries of constituencies,” the majority report says.
“The Constitutional (Amendment) Bill, 2020, circumscribes this power since the location of these constituencies has been determined by the bill.”
According to the majority report, no one else can create constituencies or determine their location.
IEBC chairman Wafula Chebukati once raised the unconstitutionality of the proposed constituencies during the public participation phase conducted by the joint committee.
“The bill can propose constituencies to be created, but not determine which county the constituencies are created. That is our mandate. If the bill is passed as it is, it will be unconstitutional,” Mr Chebukati said March.
It appears the majority in the joint committee want the bill changed before taking it to Kenyans in a referendum.
The question of whether the bill could be reopened by Parliament had emerged as sticky in the joint committee, with some members arguing that Parliament should not be conveyor belt.
“You cannot have a provision in the Constitution where Parliament is required to conduct business or a transaction for ceremonial purposes,” Siaya Senator James Orengo said.
“The fact that Parliament is involved in this process is proof enough that the two Houses are not ceremonial. In fact, Parliament is one of the few institutions which are involved in the process and in the popular initiative. It is not for nothing.”
While announcing the end of the joint committee’s journey on the bill yesterday, Nyamira Senator Okong’o Omogeni, who co-chaired it with Kangema MP Muturi Kigano, said the team would present a report to the two Speakers for more guidance.
“We have agreed to forward the report with our observation to the Speakers who will advise us based on the contents,” Mr Omogeni, who chairs the Justice Committee of the Senate, said.
At the same time, Murang’a Senator Irungu Kang’ata, who abstained during the vote, faulted the BBI bill saying it runs the risk of being declared unconstitutional even as he pointed out “the skewed manner in which it proposes to allocate national resources”.
“Should we endorse the bill, we shall have passed an erroneous report . I am worried about the inconsistency in some of the bills we are looking at. Which one is genuine? The bill being considered by the senate is different from the one at the National Assembly,” he told journalists in Nairobi yesterday.
“The bills that were taken to county assemblies are not the same. Only about 13 counties debated the correct bill. The rest considered bills which were not correctly drafted.”
Those opposed to the push to amend the supreme law say the proposal on new constituencies was whimsically arrived at and want it reversed.
“Mombasa County which has about 500,000 registered voters got three constituencies whereas Murang’a with about 590,000 got one. What was the criterion?” he asked.
“Tharaka Nithi, Embu, Nyeri and Nyandarua are getting none. Why is the principle of minimum price guarantee for key crops like tea and coffee grown in Mt Kenya not embedded in the bill? How can we reduce the number of proposed nominated lawmakers?”
