Why Parliament cannot be a rubber stamp on BBI
As a Constitutionally mandated legislative body, Parliament cannot just pass Article 257 Bills as they are.
Since the Building Bridges Initiative kicked off, there has been divided opinion on the role of County Assemblies and Parliament once an Article 257 Bill gets to the respective Houses. For such a Bill to get to the County Assemblies, it means that it has been endorsed by at least one million voters; and for it to get to Parliament, it means that half of the County Assemblies have passed it.
As it stands, the Bill has been introduced to both Houses of Parliament and committed to a Joint Committee that has been conducting public participation and was supposed to table a report on March 25, 2020. The Committee, in its wisdom, informed both Houses that it needed more time to consult experts on the Bill. The move was met with opposition from some of the members in both the Senate and the National Assembly. From some of the comments, it emerged that MPs believe that they have not role in how they consider the Bill as it was already endorsed by one million voters before it got there.
However, in my view, and considering that the courts are yet to pronounce themselves on the matter, the notion that MPs, and even Members of County Assemblies who passed the Bill without much consideration, cannot amend an Article 257 Bill is misadvised. I say this because we know that only about four of the over 70 amendments in the current 'BBI' Bill would require a referendum meaning that the rest can be passed by Parliament and just be assented to by the President.
Here is my reasoning.
First, Parliament and County Assemblies are the bodies mandated to legislate in Kenya with Kenyans having delegated that role to them. It would, therefore, in my view, be irresponsible for MPs and MCAs to pass the Bill without considering it clause by clause. We may end up legislating illegalities by assuming that Kenyans can logically and independently make a decision at the ballot in regards to such matters. It is actually my considered view that such Bills have to pass through MPs and MCAs as a means of checks and balances in order to ensure that the proposals are sound.
Secondly, the process of collecting the endorsement signatures cannot be said to be foolproof. Signatures can be collected through cohesion or bribery as long as they are one million. Parliament and County Assemblies are therefore critical checks and balances mechanism that should employ their usual procedures in handling the Bill.
Thirdly, to assume that just because a Bill was endorsed by one million people means that those proposals are sound is politically mischievous. As I noted, not all these proposals can be endorsed or rejected by Kenyans in a referendum. Let me try and illustrate how such mischief may occur.
If Oliver today collected over one million signatures supporting a Bill that reduces the number of MPs, that proposal if we are to follow what we are being told, would end up at the President's desk if passed or a referendum if Parliament fails to pass it. In a country where there are ongoing cries of 'overrepresentation', my Bill would then pass easily in a referendum.
Another example would be: If Oliver today collected one million signatures supporting a Bill that proposes to allow ritual killings, with the assumptions we have been given, the Bill would pass through the stages without any scrutiny and end up in a referendum. If I am to convince enough voters to support it in the referendum, such a Bill would then become law despite the provisions in the Bill of Rights.
Now ask yourself, are the two Bills by Oliver in the interest of the country? Are they sound proposals that should see the Constitution amended just because I managed to, for instance, buy the one million signatures at the start?
My answer to both questions is NO and therefore Parliament should follow the Standing Orders of the respective Houses and consider the BBI Bill like any other. In fact, Parliament already knows that the Bill contains some unconstitutionality such as the allocation of the 70 proposed constituencies to various Counties. If MPs agree that they can remove that schedule to avoid illegalities then they should be able to amend all the other clauses in the Bill to make them sound.
Can you imagine if there was a typo talking about 'Pubic Interest' instead of 'Public Interest' and Parliament cannot clean it up because MPs believe they are rubber stamps on Article 257 Bills?
Even as we wait for the courts to decide, the current Parliament should be careful not to be caught up on the wrong side of the law and history.