Showdown looms as MPs recalled to debate BBI Bill

Anthony Mwangi and Hillary Mageka

The stage is set for a fresh showdown at the National Assembly over the proposed creation of 70 new constituencies in the Building Bridges Initiative (BBI) as lawmakers start debate on the law amendment Bill tomorrow.

The move comes after National Assembly Speaker Justin Muturi called for a Special sitting of the House tomorrow and Thursday to deliberate on the Constitution of Kenya (Amendment) Bill 2020 after the joint Justice and Legal Affairs Committee (JLAC) of the Senate and National Assembly concluded their week-long deliberations on the Bill.

The Gazette Notice reads: “Pursuant to the provisions of Standing Order 29(3) of the Standing Orders of the National Assembly, it is notified for the information of the members of the National Assembly and the general public that Special Sittings of the Assembly shall be held on Wednesday, April 28, 2021 (morning and afternoon) commencing at 10am and at 2.30pm, respectively; and 2.

Thursday, April 29, 2021 (morning and afternoon) commencing at 10am and at 2.30pm.”The process to have the Bill passed will be fast-tracked through the first, second and third reading during the two days.

“Second Reading, committee of the Whole House and Third Reading of the Constitution of Kenya (Amendment) Bill 2020 (A bill to amend the Constitution by popular initiative) promoted by the Building Bridges Initiative,” adds the Speaker’s communication.

 The sittings come at a time MPs are divided on whether to amend the Bill and deal with the proposal to have 70 new constituencies after it emerged that the move was unconstitutional as it amounts to usurping the powers of the Independent Electoral and Boundaries Commission (IEBC).

 IEBC chairperson Wafula Chebukati is on record saying the task of allocating where the additional constituencies will be created is the work of IEBC, not politicians.

Already, a majority of members of the joint legal committee is understood to have in their final report warned against creation of new constituencies, saying it amounts to usurping IEBC powers while those in the minority side support the proposal to have additional electoral areas.

 Should the proposal sail through, Rift Valley, Nairobi, Central and Coast will be the biggest beneficiaries of the new 70 constituencies.

 Apart from the split over the proposed constituencies, the legislators are also divided over whether or not to amend the Bill.

A section of the lawmakers insist the Bill should be amended like any other proposal while others feel that making any changes to the document will go against the spirit of the Constitution, on how an effort introduced  through a popular initiative should be processed.

Stage is set

 In addition, the legislators are grappling with how practical it would be for the country to create the new constituencies before next year’s polls.

 The joint committee is also said to have described as superfluous the proposal in the Bill to suspend provisions of Article 89 (4) of the Constitution, which provides that, if a general election is to be held within 12 months after the completion of delimitation of electoral boundaries, the new boundaries will not apply in that poll.

 In the second schedule of the Bill, the BBI promoters have suspended the provision, which means that the  new constituencies will apply in next year’s election should the BBI Bill become law.

 The joint legal committee co-chaired by Nyamira Senator Okong’o Omogeni and Kangema MP Muturi Kigano has questioned the manner in which the amendment is being effected, expressing concerns that the promoters opted to suspend the law instead of expressly amending the Constitution.

  “The Special Sitting is on, the Gazette Notice will be out later today (yesterday) so that we can have a sitting on Wednesday and Thursday. The letter to the Speaker requesting a special sitting was sent to him last week Thursday,” confirmed National Assembly Majority Leader Amos Kimunya.

 Clerk of the National Assembly Michael Sialai, while confirming the sittings, said the stage is set for the BBI and other crucial business including the Division of Revenue Bill to be debated.

 “Yes the Speaker received the request for a Special Sitting on Friday and approved that it be held on April 28 and 29,” added Sialai.

Addressing a press conference at Parliament buildings yesterday, Senate Speaker Kenneth Lusaka said he was in consultation with Muturi to decide whether Parliament can reconvene for a Special Sitting to consider the BBI Bill.

 The National Assembly and Senate are in a month-long recess up to May 4 and May 11, respectively.

The recess was occasioned by the proclamation of President Uhuru Kenyatta for the two Houses to suspend sittings to curb the surge in Covid-19 infections.

 “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,” said Lusaka

 He added: “Remember, we, as Senate, are on recess, until May 11 when the House resumes, but I will be also consulting with leaders of the Majority and Minority to see the possibility of a special sitting to look at the report.”

Speaking after presenting the report to Lusaka, Senator Omogeni said it will inform the House on how to process contents of the Bill.

 “The joint committee having heard from over 160 Kenyans including individuals, professional organisations, MPs, political parties who gave their views on the Bill and the committee having retreated to consider the public views, we have finalised and prepared a report,” he said.

 “On behalf of the JLAC committees of both Houses, we officially want to hand over the report to the Senate Speaker for further processing through the Senate,” he added. 

Terming the occasion historic, Omogeni noted it is the first time Parliament is midwifing a bill coming through a popular initiative. 

He said the joint committee had done “the best it could” and the focus now shifts to both Houses of Parliament and the people of Kenya to give their verdict.

  “Nothing bars the IEBC from continuing with its work under Article 89 irrespective of the schedule as the Constitution mandates it to delimit boundaries between 8-12 years from the last review,” the lawmakers say in their report.

 The committee points out that the second schedule of the Bill is problematic, citing other amendments it seeks to effect.

 The schedule contains significant amendments and the joint committee observes that the manner it (the schedule) was drafted has no way of finding itself into the Constitution once enacted at a referendum.