President Uhuru Kenyatta unveiled the final constitutional review bill containing fresh changes that appeared unfamiliar to ODM leader Raila Odinga.
The new bill seeks to create 70 new constituencies distributed in at least 28 counties. It allows for the nomination of women to Parliament and county assemblies but only those who stood for election.
In fact, preference would be given to those women who received the highest number of votes, ending the culture of tokenism and rewarding ‘girlfriends’.
The Constitution of Kenya (Amendment) Bill, 2020 also proposes enhanced Senate powers and gives MCAs an opportunity to serve in the coveted County Executive Committee posts.
The proposal gives the President powers to appoint at least 14 Deputy Ministers from among members of the National Assembly to deputize Cabinet ministers.
The bill, however, dropped some of the initial contentious proposals that had generated political heat.
These including political parties nominating Independent Electoral and Boundaries Commissioners and the establishment of the policy council.
The new bill also makes no mention of plans to kick out the current IEBC commissioners led by Wafula Chebukati.
Interestingly, Raila appeared caught off guard by some of the contents of the final bill. He had hailed the BBI process for allowing political parties to nominate IEBC chiefs.
That proposal was expunged from the final bill, raising questions about whether Raila was briefed on the changes.
In his speech, Raila rooted for political parties to nominate IEBC commissioners, the same script that has been part of his reform agenda.
Raila hailed the 2002 General Election presided over by 20 commissioners picked by political parties under the Inter-Parties Parliamentary Group (IPPG) arrangement.
He said the deal had guaranteed the “fairest election” in Kenyan history.
“There is nobody who is neutral. Even if you give the Pope a ballot, he will go out there and vote for somebody…they [commissioners] will be counter-checking each other and political parties will consult with each other,” Raila said.
Raila said commissioners appointed by parties will monitor each other, saying in many countries “that is the formula because political parties are the actors.”
“Those of you who have been around will agree that the most fair elections were held in 2002. The 10 commissioners appointed by [President Daniel] Moi were being counter-checked by those appointed by opposition parties,” he added.
Also struck out from the bill is a provision establishing a special status for Nairobi county.
This means that the next governor will assume full functions provided by law after the term of the Nairobi Metropolitan Services ends.
The bill also dropped the elevation of the Independent Police Oversight Authority into a full-fledged Commission despite initial excitement that it would have been a big lead forward in the oversight of Police.
The Senate fell short of being elevated into the Upper House with sweeping mandate in the oversight of all county Revenue including own source income as well as vetting powers.
The Senate will now vet and approve the Controller of Budget, the Youth Commission, and the Judiciary Ombudsman as part of its additional mandate.
Current IEBC chairman Wafula Chebukati and Commissioners Boya Molu and Abdi Guliye may get a lifeline for probably a negotiated exit after the referendum since the final bill dropped the proposal to subject them to fresh vetting.
The IEBC battle had triggered political heat among key leaders with Deputy President William Ruto leading the camp that has been opposing the nomination of the commissioners by political parties.
Ruto and a section of leaders including the church had opposed the move to abolish the National Police Commission and replacing it with a policy council.
The police council would have been chaired by the Cabinet Secretary for Interior.
The BBI technocrats however retained the Judiciary Ombudsman despite uproar that its creation and appointment by the President would erode the independence of the Judiciary.
The architects of the bill also moved to appease members of the County Assemblies through a provision that would compel governors to appoint at least half of the CEC’s from among MCAs.
The MCAs had called for an amendment to the Constitution to allow them an opportunity to be appointed into the governors’ cabinet to replicate what would happen at the national level.
The move is seen as a masterstroke to rally all the MCAs to support the bill once submitted to the county assemblies for approval after the IBEC gives the green-light.
The bill must be passed by at least 24 county assemblies before it is taken to the referendum irrespective of the decision by the National Assembly and the Senate.
Under the proposed BBI changes to the law, taxpayers will be forced to fork out billions of shillings to fund an expanded legislature with the proposed creation of 70 new constituencies.
They will bear more financial brunt not only for the new constituency representatives but also for an indefinite number of gender top-up who will be nominated after the general election.
The proposed bill has proposed to increase the number of constituencies from 290 to 360 but does not specify the number of nominations that will be done to ensure the two-thirds gender balance in the National Assembly.
There will be as many nominations as possible as they may be required to ensure that not more than two-thirds of the lawmakers in the National Assembly are of either gender.
This is a major victory for women in their fight for gender parity.
The seats will be determined after the election of the members of the constituencies has been completed.
However, for women to be nominated they will have to participate in the general elections with the bill proposing that priority for the slots would be given to those who score the greatest number of votes.
The proposal will lapse after the next three general elections.
According to the bill, the new 70 constituencies will be distributed in at least 28 of the 47 counties.
This is to enhance representation in constituencies underrepresented in the National Assembly on the basis of population quota.
The bill provides that the creation of additional constituencies shall not result in the loss of the 290 existing constituencies while ensuring that the number of inhabitants in a constituency is as nearly as possible to the population quota.
The BBI secretariat also dropped the controversial revenue sharing formula that would have seen many counties from the marginalized areas lose billions of shillings.
The BBI bill proposes an extension of the sunset clause of the Equalisation Fund and increases the period from 20 years to 30 years from the date of commencement of the fund.
This would be a major victory for the pastoralist and marginalized regions after their leaders threatened to oppose the BBI if the revenue formula and the equalization fund issues were not addressed.