President Uhuru Kenyatta and former prime minister Raila Odinga lead Kenyans in signing the BBI form during the National launch of the BBI signatures collection exercise at KICC in Nairobi County. PHOTO | PSCU
If BBI sails through then the youth, small businesses and innovators may have something to celebrate as the proposed amendments cater to their needs.
The contents of the Building Bridges Initiative have finally been unveiled as The Constitution (Amendment) Bill 2020. A reading of this Bill demonstrates the thinking that went behind drafting. In my view the drafting was done to win the support of key target voters.
The youth make up the largest percentage of the voter demographics in Kenya and some of the provisions of the Bill are very attractive to them.
BBI still has a long way to go before it can become law. It proposes several amendments to the Constitution.
The Constitution cannot be amended unless its constitutional provisions on amendment are followed. There are three ways the Constitution can be amended depending on the circumstances. In the first method (Article 255) a referendum is needed if the proposed amendments are very crucial.
For a referendum to be sustained, a requisite number of voters and regions must participate. The Constitution prescribes that at least 20 per cent of the registered voters in at least half of the counties in Kenya should participate. This means if BBI doesn’t garner the requisite voter interest it may fail.
If BBI doesn’t seek to introduce major changes to the Constitution it can be introduced as an Act of Parliament (Article 256). Finally, BBI can be introduced as a popular initiative which seems to be the chosen route by BBI promoters. Under this route, signatures of at least one million voters must be given and these sent to the IEBC for verification. Thereafter BBI shall be submitted to the county assemblies for consideration.
Once the county assemblies approve them they are then sent to the two houses of parliament and introduced as a bill in parliament. BBI then becomes a new law if it gets majority approval in parliament.
The first issue that arises is what is the correct avenue of introducing BBI? A quick look at the BBI provisions demonstrate that there are crucial constitutional amendments being proposed and therefore the proper avenue to use is a referendum.
The independence of the Judiciary is likely to be affected due to the introduction of a new institution known as the ombudsman. The head of this office will be appointed by the executive.
The doctrine of separation of powers requires the three arms of government that is, Judiciary, Executive and Parliament to be totally independent of each other. Therefore BBI seeks to restructure judicial independence. The correct avenue therefore is through a referendum and not as a popular initiative.
The Bill contains several attractions to small businesses. For one, intellectual property rights are recognised as key economic pillars. This positions Kenya’s constitution as one of the best in so far as intellectual property rights are concerned. It is already ranked quite high in this aspect.
Enhancement of SMEs, digital rights and science and technology have also been proposed. These new provisions may lead to regulatory reforms in the mentioned areas due to the fact that these are constitutional.
There are issues of national ethos that have been included in the Bill. The roles of good citizens have been highlighted including fulfilling parental duties and avoiding corruption. It proposes the introduction of a Youth Commission to administer youth affairs.
The rest of the BBI document is mostly political and I leave the analysis of the political provisions to the experts. If BBI sails through then the youth, small businesses and innovators may have something to celebrate as the proposed amendments cater to their needs.
The public ought to approach the BBI soberly.
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