MPs now fault judiciary over BBI ruling, say it exceeded mandate
National Assembly Majority Leader Amos Kimunya who has said the recent court ruling on BBI makes it difficult for MPs to amend the Constitution.
MPs have accused the Judiciary of overstepping its mandate by making it difficult for Parliament to perform its legislative role following the recent judgment on the Building Bridges Initiative (BBI) case.
This comes as Garissa Township MP Aden Duale questioned the constitutionality of at least six BBI Bills which are at different stages of consideration by the National Assembly.
In upholding the decision of the High Court, the Court of Appeal ruled that the BBI process undermined the basic structure doctrine, a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its parliament.
These characteristics include supremacy of the constitution, the Bill of Rights and separation of powers among others.
But the MPs, led by National Assembly Majority Leader Amos Kimunya (Kipipiri), his Minority Leader John Mbadi (Suba South), Dr Chris Wamalwa (Kiminini) and Millie Odhiambo (Suba North) faulted the Judiciary accusing it of gagging the legislative role of Parliament.
Hard to amend Constitution
Mr Kimunya noted that the courts have made it extremely difficult to amend the Constitution.
“Basically, we are saying that Parliament cannot touch anything because anything we touch will have an effect on the basic structure. My worry is that this could be extended even [to] some of the laws that we are making,” Mr Kimunya said.
“It may well be that the future of Parliament does not exist; the courts have introduced matters not in the Constitution,” he added.
Mr Mbadi urged Speaker Justin Muturi to ensure that the legislative power of Parliament remains intact.
“This House has a legitimate power vested on it by Kenyans that cannot be taken away. [No matter what] the courts have said, the power to legislate must remain with this House,” noted Mr Mbadi.
“If we can have a constitution that people cannot amend, this becomes a constitutional slavery. Regardless of what judges say, the people of Kenya cannot accept slavery,” says Mbadi.
Basic structure doctrine
But even as Mr Kimunya and Mr Mbadi faulted the courts, Mr Duale said that the ruling by the High Court as affirmed by the Court of Appeal on the basic structure doctrine renders six amendment Bills before the House unconstitutional.
So as not to have the House legislate in vain, Mr Duale wants Speaker Muturi to halt their consideration pending his direction to the House on the implication of the court judgment.
“You have ruled before that Parliament should not act in vain. In this regard, I respectfully hold the view that we shouldn’t spend time considering Bills or legislative proposals to amend the Constitution only for the Courts to fault the outcome for not following the just process,” said Mr Duale.
Mr Duale noted that the Bills and legislative proposals to amend the Constitution currently before the House contain matters that were contained in the BBI Bill, which has since been declared unconstitutional.
The MP wants the Speaker to establish how the question of the basic structure is to be determined and at what stage of a Bill shall the determination be made.
Amendment Bills
The various amendment Bills are sponsored by Busia Woman rep Florence Mutua (MP), George Kariuki, Gladys Shollei (Uasin Gishu woman rep), Vincent Kemosi (South Mugirango) and three others by the Constitution Implementation Oversight Committee (CIOC) chaired by Ndaragua MP Jeremiah Kioni.
Ms Mutua’s Bill seeks to change the timelines of nomination of MPs so that it is after a general election, while Mr Kariuki’s proposals wants to include Kenyans in diaspora as special interests groups under Article 97.
Ms Shollei’s Bill seeks an increase the number of elected women MPs in the National Assembly from 47 to 166.
Mr Kemosi’s and CIOC Bills want the Constitution amended to provide that the President shall appoint Cabinet Secretaries from among MPs.
Another of the CIOC Bill seeks to amend Article 90 of the Constitution to have political parties nominate to the National Assembly and the Senate presidential and deputy presidential candidates.
Other than the Bills, there are also several legislative proposals to amend the Constitution that are awaiting pre-publication scrutiny before the Justice and Legal Affairs Committee.
Others are before the Budget and Appropriations Committee for financial implication analysis.
Some of these legislative proposals touch on various items including establishment of the position of prime minister and two deputy prime ministers.
They also seek to provide that the prime minister and the two deputy prime ministers shall be appointed by the President with the approval of the National Assembly.
