Two Counties seek Supreme Court’s advisory opinion on BBI process

Written By: Hunja Macharia

H.E President Uhuru Kenyatta and ODM Leader Raila Odinga pose for a picture with the revised BBI report in October 21, 2020. PICTURE/PSCU

The County Assemblies of Kericho and Nandi have filed a request seeking an advisory opinion on how to consider a bill to amend the constitution through the popular initiative.

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The advisory opinion filed through Ongoya and Wambola advocates want the Supreme Court to advice on a variety of issues to guide Counties on how to process the BBI report once it is forwarded to the Assemblies.

The Assemblies wants to know, “Whether County Assemblies are obligated to conduct public participation when considering a Bill to amend the constitution through the popular initiative and more specifically whether County Assemblies can amend the constitution amendment bill to reflect the views received during public participation as well as input from MCA’s.”

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They are also seeking the Supreme Court’s guidance on requisite voting threshold for a constitutional amendment bill at the County Assemblies, and whether, “The approval is by a simple majority of members voting; more than half of the MCAs in a County Assembly, or a super majority of at least two-thirds of the MCAs in an Assembly.”

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The two County Assemblies argue that the questions must be addressed before the BBI report is sent to the Assemblies, and are necessitated by difficulties they encountered during the Punguza Mzigo constitution amendment bill.

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They say that they hope the Court will provide clarity on the procedure and help standardize the process taken by the 47 County Assemblies.

The Assemblies also want the Supreme Court to provide guidance on the applicable procedure of dealing with the constitutional amendment bill through a popular initiative by Parliament.

“Article 257 which relates to popular initiative seems silent on the process and procedure Parliament has to use in consideration and passage of a bill to amend the constitution through popular initiative. We have also noted that there is no explicit guidance in both the Senate and the National Assembly’s standing orders on the same.”

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Finally, the Assemblies want the Court to provide guidance on the question of holding a referendum.

They argue that the BBI has a multiplicity of issues addressing different constitutional matters yet the constitution requires that only one or numerous issue-based questions be voted for during a referendum.


































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