Issued in Nairobi Kenya on 26th November 2020
When the final BBI Report was released, ANC Party critically read, studied and analyzed each and every proposal in it. As a result, the ANC Party cited several proposed amendments which, in our view, required further consultation, consensus and subsequent amendments. We believed that consensus is the way to go. We believe that this will enhance better governance and demonstrate genuine concern for the welfare of our Citizens.
Yesterday, the 25th of November 2020, the Constitutional Amendment Bill 2020 was released and signature collections launched.
On our part, we have, again, undertaken a detailed study and analysis of the Bill. We are satisfied that the Bill has been revised, edited and re-aligned and has now incorporated new proposed amendments some of which we proposed. Indeed, this Bill has demonstrated a significant shift from the earlier proposals and for this reason we are encouraged by our insistence and that of many others such as the Church, that consensus was given a chance. In this Bill, our collective efforts have borne some fruit as outlined briefly below:
NEW PROPOSED AMEMNDMENTS
1) ARTICLE 88: EARLIER PROPOSAL: IEBC Commissioners were to be 7, four of whom were to be appointed by parliamentary political parties only.
NEW: This proposal has been shelved altogether, meaning that appointment of IEBC shall remain as currently provided under the present Constitution. This enhances IEBC’s independence.
2) ARTICLE 89: EARLIER PROPOSAL: 70 additional Constituencies called “Multi Member Constituencies” were to be created and the criteria were not clear. It thereby gives rise to fears that these additional Constituencies might be distributed unfairly to give certain regions undue advantage over the rest of the Country through a biased representation.
NEW: Under a proposed Schedule 2, Multiple Member Constituencies have been removed. Instead, the additional 70 Constituencies have been mainstreamed as “Single Member Constituencies” and have been specifically designated in various Counties across the Country.
3) ARTICLE 97: EARLIER PROPOSAL: There was no clear provision for gender affirmative action in the National Assembly and the proposal did not guarantee the two thirds rule, thereby compromising Women representation from this critical house where participation in decisions affecting resources takes place.
NEW: A clear affirmative action for PWDs, Women and Youths has now been created to provide for:
a) 4PWDs in the National Assembly, that is two men and two women,
b) Two Youths (a man and a woman) and
c) Special seats to cater for the two thirds gender rule. So, after a general election, the National Assembly will have 360MPs.If the affirmative criterion will not have been met, and then Political Parties will nominate members from among women who contested in the preceding election.
This is progressive in that the nominated MPs shall have shown interest in participating in elective politics as opposed to the current system where Political Party discretion is, often, abused.
It is also progressive because they will be nominated on the basis of the total number of votes which each nominee garnered. A criterion for nomination has, for the first time, been created. Progressive!
4) ARTICLE 98: EARLIER PROPOSAL: There was no mention of, nor provision for, Leadership within the Senate, hence no clarity.
NEW: This has now been clarified and corrected by creating a Leader of Majority and Leader of Minority in the Senate. Good for Senate performance and function.
5) ARTICLE 113 (3): If the Senate was the House from which a Bill originated the Speaker of the Senate and not of the National Assembly can now refer the Bill to the President for assent, a power that had been denied the Senate. This strengthens the Senate on bills originating from the Senate.
6) ARTICLE 107 A LEADER OF OFFICIAL OPPOSITION:
a) The leader of Official Opposition and the Prime Minister cannot now, unlike before be from the same political party.
b)The lacuna hitherto as to what will happen in the event the Leader of Official Opposition cannot meet the set conditions, or when there is a vacancy in that Office, has now been cured by Article 107A (3) which now gives power to a party or coalition of parties from whom the nominee originated to fill the vacancy.
7) ARTICLE 151A: EARLIER PROPOSAL: President was to “choose” a Prime Minister YET the very provision said that the Prime Minister will be that Member of the National Assembly who shall have Majority MPs or Majority Coalition. This had given the President an absolute discretion thereby introducing inherent uncertainty and confusion in this important process.
NEW: Certainty has now been established by providing that the President will “nominate” (not “choose”) a Prime Minister who is an elected Member and Leader of the Majority Party in the National Assembly. Presidential discretion is thus removed from it.
8) ARTICLES 171 & 172: EARLIER PROPOSAL: Office of Judiciary Ombudsman: He was proposed to be a substantive member of the JSC, participating fully in JSC’s decisions and actions.
NEW: Judiciary Ombudsman will now be an ex officio member of the JSC. Additionally, he will be vetted by the Senate, thereby giving the office a seal of approval by a people’s Representatives.
9) ARTICLE 177,179 & 179: NEW PROPOSAL: Re-alignment and harmonization of governance principles and systems at County Government and National Government levels: Just like Members of the National Assembly will be eligible for appointment as Cabinet Ministers to take part in running national government, Members of County Assembly will similarly become eligible for appointment as CECs to help contribute in the running of their respective County Governments. This is fair and progressive.
10) ARTICLE 218: EARLIER PROSOAL: The entire article on the process of enacting the Annual Division and Allocation of Revenue Bill had been repealed and the proposed processes of the bills seemed to give the National Assembly an upper hand on this bills that are logically and naturally a preserve of the Senate.
NEW: The proposed processes of managing the bill and its passing have reverted back to what they are the Constitution 2010. The Senate has been protected and hence Devolution.
11) ARTICLE 223 (1): The Senate has been strengthened by being given power to vet and approve the Presidential nominee as Controller of Budget, a power hitherto reserved for the National Assembly. Overall, the Senate has been strengthened by having a key role to play in the enactment of bills on finances to the Counties, positions the Senate adequately to oversight devolved governance and protect public resources.
12) ARTICLE 246: EARLIER PROPOSAL: Established the Kenya Police Council whose composition would be without any representatives from the public/civilians. Moreover, the Council was proposed to be headed by a Presidential appointee, namely the Minister for Interior and his/her Principal Secretary.
NEW: This proposal has been shelved altogether. This is responsive.
13) NEW PROPOSAL: CDF is now proposed to be established in the constitution. For many years now; CDF has greatly impacted lives of many Kenyans in all areas of the Country. BUT it had been declared unconstitutional by the High Court hence the need for its creation in the Constitution. This is progressive as it will give it a proper legal standing to carry on its work.
14) AMENDMENTS TO THE 4TH SCHEDULE
The proposed transfer of functions from the Nairobi County to the National Government in the Report has been deleted in the Bill. This is a major boost in strengthening devolution as the status of Nairobi as a County Government has been restored.
For these reasons, the ANC Party supports the BBI process and urges all Kenyans to come together and participate in this process with a view to having a smooth and non-contested referendum.
“Consensus is the spirit of Kenya”
H. E. Musalia Mudavadi, EGH
ANC PARTY LEADER