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Activist Okiya Omtatah has moved to court to stop the Speaker of the National Assembly from referring the passed version of the Constitution of Kenya (Amendment) Bill (National Assembly Bill No. 40 of 2020) to the President for assent.

The bill which seeks to amend the Constitution to remove the clear distinction and the separation of Powers between the Legislature and the Executive at the national and county levels Of governments was published on November 20, 2020 in the Kenya Gazette Supplement No. 23 (National Assembly Bills No 40).

It has undergone the First Reading and is committed to the National Assembly’s Constitutional Implementation Oversight Committee for consideration, to facilitate public participation and, thereafter, report to the House.

Omtatah, in court documents, argues that the amendments which proposes to fuse the Legislature and the Executive at the two levels of government interfere with the basic structure of Kenya’s Presidential system and, consequently, the changes can only be approved through a referendum.

Separation of powers

Omtatah argues that the Constitution of Kenya 2010 establishes a full presidential system where there is a clear distinction and separation of powers between the Legislature, the Executive and the Judiciary.

“Hence, I am aggrieved that the National Assembly is proceeding with the consideration of the Bill without providing for a referendum pursuant to Article 255(1)(h) and (i) which requires that any amendments affecting the functions of Parliament and the objects, principles and structure of devolved government must be approved through a national referendum,” he says.

The activist argues that the statement in the Bill’s Memorandum of Objects and Reasons that, “The enactment of this Bill shall not occasion additional expenditure of public funds,” makes it crystal clear that the National Assembly seeks to enact the Bill without approval through a national referendum.

Omtatah argues that it is extremely risky to allow the proposed unconstitutional amendments to the Constitution to be concluded before this Court determines this petition and determines whether or not the changes require to be approved via a national referendum.