BOLD MPS FRUSTRATE PRESIDENT UHURU AND RAILA ODINGA

A critical parliamentary committee has pinpointed what it calls illegalities in the BBI Bill, giving its critics fresh ammunition against the referendum push.

In a bold move, the Joint Parliamentary Committee on Justice and Legal Affairs Committee rendered a harsh verdict on several provisions, especially defining 70 new constituencies, terming them unconstitutional.

Ironically, most members of the committee are close allies of President Uhuru Kenyatta and ODM leader Raila Odinga, the two handshake principals who are the architects of the Building Bridges Initiative. Uhuru and his team purged Deputy President William Ruto’s allies, but even the Jubilee and handshake loyalists disagreed with major aspects of the BBI Bill. 

But despite the cited illegalities, the committee recommended to the Houses to pass the Bill and other legislation that anchors the amendments.

The committee said, for instance, the proposal to distribute 70 new constituencies among some 28 counties is unconstitutional and seeks to usurp the powers of the IEBC. Calling for them is one thing, but delineating them is not within lawmakers’ purview, the committee said.

In addition, the committee picked holes in the proposal to abolish the vetting of ministers, Principal Secretaries and Cabinet Secretaries by Parliament.

The joint team co-chaired by senators Okong’o Omogeni (Nyamira) and Kigano Muturi (Kangema) also faulted the proposal to slash the powers of the National Police Service Commission and vest them in the Inspector General of Police. The IG is appointed by the President.

Further, the panel has faulted the proposal to change the parameters for sharing revenue among the 47 counties, following the proposal to increase the allocation from the devolved units from the current minimum of 15 per cent to a new minimum of 35 per cent of the national cake.

The verdict is seen as a slap in the face of the handshake leaders who last year orchestrated a radical purge of Ruto’s allies from the two committees.

Lawmakers seen as loyal to the DP were de-whipped and replaced with those  considered steadfast on the proposed constitutional changes, no matter their merits and demerits, and loyal to the two leaders.

Baringo North MP William Cheptumo and Nandi Senator Samson Cherargei, both allies of the DP, were removed as chairs of the JLAC in the National Assembly and Senate, respectively.

The committee concluded in its 186-page document that while the promoters of the Bill were justified to propose creation of the new 70 constituencies, they erred in allocating them to specific counties.

“The committee, however, found that the second schedule to the Bill is unconstitutional,” it said in the report set to be tabled in the National Assembly during a special sitting scheduled for Wednesday and Thursday.

“The attempt to oust the application of Article 89 (4) of the Constitution, as proposed in the second schedule of the Bill could only be possible if the Article was amended to expressly [do so] and not by having separate provisions in the schedule.

“This is because the schedule does not amend Article 89 (4) of the Constitution. Even with the provision, Article 89(4) would still exist and operate. As such, this would create parallel and conflicting mandates to review constituency names and boundaries.”

National Assembly speaker Justin Muturi gazetted the sitting on Monday, while  his Senate counterpart Kenneth Lusaka maintained the parliamentary leadership was still consulting on when to hold the sittings.

Lusaka received the reports from Omogeni on Monday; Muturi is also reported to have received the reports.

“In consultation with the House leadership and my colleague in the National Assembly, we will decide on when to have the document tabled and discussed in both houses,” Lusaka told journalists at Parliament Buildings on Monday.

However, in a minority report, Nairobi Senator Johnson Sakaja has differed with the majority, saying the creation of additional constituencies was within the powers of the people of Kenya.

“The proposals contained in the second schedule to the Bill comprise an allocation and not delimitation of constituencies.

“Upon enactment of the Bill, the IEBC is not stopped and will be required to conduct delimitation including the conduct of the public participation and processes as set out in Article 89 of the Constitution,” Sakaja said in the report.

The minority report was endorsed by six other MPs: Jennipher Shamalla (nominated), John Wambugu (Kirinyaga Central), Robert Githinji (Gichugu), Antony Kiai (Mukurwe-ini ), Zuleika Hassan (Kwale woman rep) and Emmanuel Wangwe (Navakholo).

The panel’s report criticised the proposal by the BBI promoters to delete the constitutional requirement to vet Cabinet ministers, secretaries to the Cabinet and Principal Secretaries.

While the proposal is not unconstitutional, the committee called it “highly undesirable”.

“This matter may, however, require reconsideration at the appropriate time,” the report reads.

Currently, the Constitution provides for the National Assembly to vet the CSs, PSs and ambassadors, among other presidential appointees, in the spirit of separation of powers.

The committee faulted the BBI promoters on the proposal to amend Article 203 of the Constitution, ostensibly to ensure economic and social rights as guaranteed under Article 43.

The proposal reads, “… the average amount of money allocated per person to a county with the highest allocation does not exceed three times the average amount per person allocated to a county with the lowest allocation.”

But the committee found that the proposal is inconsistent with the principles under Article 203(1) of the Constitution, in particular paragraphs (d) (f) (g) (h) and (j).

“The committee, therefore, recommends that should the Bill be passed, the Executive and the Legislature will need to put in place mechanisms to ensure that no counties are disadvantaged as a result of the application of the new criteria as proposed in the Bill,” it says.

In addition, the committee noted Clauses 66 and 77 of the Bill on amendments to the functions of the National Police Service Commission.

The amendments seek to amend Article 246 of the Constitution on the National Police Service Commission by transferring powers on confirmation of appointments, promotions and transfers of police officers from the commission to the Inspector General. 

Such a move, the joint committee said, would be “tantamount to declaring the commission redundant” and urged the promoters to reconsider the provision.

“Consequently, the committees found that the proposed amendments to Clause 66 and 67 are undesirable and will require urgent reconsideration at the appropriate time,” the report says.

The committee also said the proposal that the state would determine and harmonise the rates paid by the national and county governments to professional consultants, though constitutional, “may be objectionable”.

However, it said the introduction of the office of the Judiciary Ombudsman under Clause 44 of the Bill is not unconstitutional.

The committee recommends Parliaments enact legislation on the operational aspects of the office as contemplated in the first schedule of the Bill.

“The legislation, when enacted, should clarify that the Judiciary Ombudsman is a non-voting member of the Judicial Service Commission as envisaged by the promoters of the Bill.

The committee also found constitutional the provision to increase allocation to counties from at least 15 to at least 35 per cent.

The panel also found as justified the proposals to create 47 extra seats in the Senate and the proposed formula in the National Assembly to attain the elusive two-thirds gender rule.

It also pronounced itself on other controversial matters. It concluded that the amendments are driven through a popular initiative and thus Parliament cannot amend substantive proposals.

The team said all the amendments contained in the Bill should be subjected to a referendum. It also opposed the suggestion for a multi-choice referendum, saying the Bill should be taken as one document.

By The Star