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Hillary Mageka @hillarymageka.

Revelations that some county assemblies may have transmitted to Parliament the wrong version of the Constitution of Kenya (Amendment) Bill 2020 have  sparked outrage.

Promoters of the Building Bridges Initiative (BBI), politicians and analysts are now blaming the Independent Electoral and Boundaries Commission (IEBC) for the confusion.

The claims come even as the joint Justice and Legal Affairs and Committee of the Senate and National Assembly ponders on how to harmonise the different versions of the Bill after it emerged that the two Houses received different documents with marginal and typographical errors.

Article 257 (5) (6) on Amendment by popular initiative states that if IEBC is satisfied that the initiative meets the requirements stipulated under this Article, the commission shall submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the commission.

Copy of draft Bill

It further states that if a county assembly approves the draft Bill within three months after the date it was submitted by the commission, the speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it.

“If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay,” Article 257 (7) says.

Former BBI Joint Secretary, Paul Mwangi, while pointing an accusing finger at the Wafula Chebukati led-commission, said the Constitution only requires a promoter of a popular initiative, in this case, BBI, to submit to IEBC a draft Bill with the signatures.

According to Mwangi, IEBC was to verify the signatures to ensure BBI met the one million threshold then submit the Bill to each county assembly.

“BBI Secretariat gave IEBC one Bill. Only that Bill could have been circulated to all county assemblies,” Mwangi, a close ally of ODM leader Raila Odinga told People Daily yesterday.

“There is no chance or probability that the BBI Secretariat submitted two sets of the Bill,” he added.

Efforts to get IEBC to give its position on the matter did not succeed as our calls went unanswered.

‘Gods’ conspired

On his part, Kericho Senator Aaron Cheruiyot termed the latest disclosures as a “national tragi-comedy that BBI is turning out to be”.

“It is not just counties; even the joint parliamentary committee discovered today that the Bill submitted to the Senate is slightly different from the one before the National Assembly,” Cheruiyot said.

Former Kakamega Senator Boni Khalwale, another BBI critic, said confusion over the Bill demonstrates that some ‘gods’ could have conspired to defeat the constitutional amendment process.

“Could it be that some forces are deliberately behind this scheme?” Khalwale posed, adding that more court action and drama against BBI is yet to come.

Frederick Okango, secretary-general of the Thirdway Alliance Kenya, termed as untrue reports that BBI promoters could have sent different Bills to different county assemblies.

“That is false, the job of the promoters of any popular initiative as far as the Constitution Amendment Bill is concerned ends the moment they submit the Bill to IEBC,” Okango said.

“It will be interesting to hear what IEBC has to say about this, given that they have had a few concerns with a section of the Bill.” 

He added: “There is only a possibility of minimal typographical errors in the Bill that can still be corrected even post Parliament. That is normal with any process.”

Parliament in correcting any typographical errors, he noted, must not attempt to amend the Bill in any way as it is a product of a popular initiative.

“The Bill has undergone extensive public participation right from the propositions, to over three million endorsements by registered voters to approval by more than half of the county assemblies after public engagements and now on the floor of the bicameral House. That must remain. Amending it will render the popular initiative moot and invite serious litigations from every ready petitioner,” he cautioned.

Constitutional experts

Embakasi North MP James Gakuya posed: “How comes the report (BBI) tabled in the National Assembly isn’t similar to the one tabled in Senate? Were there two different sets of documents? How come one Bill has typographical errors?” 

“Even if you were to photocopy the Bill, the original copy should be the same as the photocopy,” Gakuya added.

A report on the scrutiny of the Bill forwarded to the Senate and the National Assembly states that the one submitted to the Senate by county assemblies  gives reference to Article 13 (b) (2) while the document at the National Assembly gives reference to Article 13 (b) (3).

There is also variation in the Bill currently before both Houses of Parliament particularly on Article 48.

According to constitutional experts Prof Patricia Kameri-Mbote and Dr Collins Odote, who prepared the report, while provisions are similar, there is an error in the marginal note that amends Article 188.

They advised that the marginal note should be aligned to the correct provision, that is Article 189.

The experts noted that before the 2010 Constitution, the Attorney General had powers to make revisions to laws to address issues of form and typos.

A source at the committee, who sought anonymity, confirmed that indeed differing Bills were presented to the National Assembly and the Senate that the committee is processing.

According to the source, the major difference is that the National Assembly received the Bill that came from a majority of county assemblies in President Uhuru Kenyatta’s political backyard, which is not the same as the one submitted by IEBC.

They include Mandera, Meru, Tharaka, Embu, Nyandarua, Nyeri, Muranga, Kiambu, Turkana, Elgeyo, Laikipia, Nakuru and Siaya.

The Senate, on the other hand, received the Bill from majority of county assemblies from ODM leader Raila Odinga’s political bedrock, according to the source.

The Bill submitted to the latter is in strict conformity with the one IEBC submitted to county assemblies.

“The ideal situation is that the Bill to be passed by the two Houses of Parliament should be consistent with the Bill that was submitted to assemblies by the IEBC without alteration,” said Nyamira Senator Okong’o Omogeni.