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Understanding the BBI Report – A brief Guide To The Proposed Constitutional Amendments

By Whispers Team

An abridged version

Yesterday’s report of the Steering Committee appointed to Implement the BBI Report Powerful President, Prime Minister Post And Reduced Parliamentary Budget: BBI Report At Glance (released last year) has recommended a number of Constitutional Amendments to deal with the issues identified in the BBI Report. Here is a summary of the main proposals:

  1. ON INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION- (IEBC)
  • The Commission will have 7 Members. 4 of them will be picked by political parties.
  • You cannot be an IEBC Commissioner if you have served in the preceding five years as the President, Deputy President, Governor, Deputy Governor, MP, or MCA. Currently, only those who have served as MPs or MCAs are prohibited from joining the IEBC.
  • The IEBC will no longer handle electoral disputes (nomination disputes).
  • Current IEBC Commissioners to be vetted and retained or removed.
  • The report also proposes that all current senior IEBC officers be vetted. Additionally, it recommends that all IEBC staff be employed on a three-year contract, and that this only be renewed once on condition that their performance was good.
  • The task force also recommends a change in the hiring process of returning officers to make it more rigorous.
  • Returning officers should be hired through a similar process to the one used for commissioners, with the involvement of public participation.
Also read:  Powerful President, Prime Minister Post And Reduced Parliamentary Budget: BBI Report At Glance

2. ON PARLIAMENT

  • The National Assembly currently has 290 MPs elected from each of the 290 Constituencies, plus 47 Women Reps elected from each of the Counties and another 12 Members nominated to represent marginalized groups. (Total of 349 MPs) Under the proposed changes, the National Assembly will have 360 MPs elected from the 290 Constituencies. This will be done through single and multi-member constituencies. I suppose this means some Constituencies will elect more than one MP to the National Assembly.
  • The president will nominate/appoint the PM within seven days of his/her election to office.
  • The president can hire or fire the PM at will. The PM can also lose their job through a successful motion of no confidence in Parliament.
  • The President will also pick the Deputy PMs from among the Cabinet Ministers.
  • The position of 47 County Woman Reps will be retained. The 12 Nominated Members will also be abolished.
  • The Attorney General and Cabinet Ministers who are picked from outside Parliament will be ex officio Members of Parliament.
  • Depending on the number of Cabinet Ministers who are picked from outside Parliament who will become ex officio MPs, the size of the National Assembly will be slightly above 360.

NB. From our reading, we don’t see how this proposal will constitutionally guarantee that not more than 2/3 of the 360 posts are of the same gender. So we may be back to Square One when it comes to the gender question.

  • The Senate currently has 47 Senators elected from Each County plus 20 nominated Members (total of 67). With the changes, the Senate shall have 94 members, 2 elected from each County, one a man and one a woman. All nominated Senate Seats abolished.
  • The current positions of Majority Leader and Minority Leaders in the National Assembly will be removed. Instead, we will now have a Leader of the Official Opposition who will be the number 2 candidate in the presidential election. On top of being number 2 in the presidential race, his/her party (or coalition) must also garner 25% of the seats in Parliament.
  • Consequently, the pecking order in Parliament will be 1. The Speaker. 2. The Prime Minister. 3. Leader of Opposition. The majority and Minority Leader in the National Assembly will be gone.

We haven’t seen similar changes for the Senate so we might still have a Leader of Majority and Minority Leader in the Senate)

  • A person is no longer unqualified to run for Parliament if s/he is an MCA, i.e. you do not have to resign from the County Assembly before contesting for a Parliamentary seat.

3. ON THE EXECUTIVE

  • Positions of a Prime Minister and 2 Deputy Prime Ministers will be introduced.
  • The President will nominate a Prime Minister from among MPs from the majority party. The nominee must be approved by a majority vote of MPs.
  • The 2 Deputies will be appointed by the President from among Cabinet Ministers.
  • The Prime Minister will perform the role of the leader of government business in Parliament, will supervise the work of Ministries, and will chair Cabinet Committee Meetings.
  • The PM may be dismissed by the President (at will) or impeached by more than half of all MPs.
  • Cabinet Secretaries will be called Cabinet Ministers.
  • The Supreme Court will have 30 days to resolve presidential election disputes, up from 14.
  • The President will appoint Cabinet Ministers and the Secretary to the Cabinet – without the involvement of Parliament. Parliament will also not approve nominees for the position of Principal Secretary.
  • Some Cabinet Ministers may be appointed from the National Assembly (and not Senate).

4. ON OTHER OFFICES

Nominee for DPP must have same qualifications as a Court of Appeal Judge, not High Court as current. This requires 15 years’ experience, up from the 10 required for the High Court.

5. ON THE JUDICIARY

  • President of the Court of Appeal and the High Court Principal Judge to serve one 5-year term.
  • Court of Appeal will be the final court for hearing election appeals (MCA and Parliamentary).
  • Chief Justice and other Supreme Court Judges to have 20 years’ experience – up from 15.
  • Court of Appeal Judges to have 15 years’ experience – up from 10.
  • While the CJ can only serve for a maximum of 10 years as the Chief Justice, the Deputy Chief Justice currently has no term limit. The Bill proposes a similar term limit for the Deputy Chief Justice. Consequently, someone will serve for a maximum of 10 years as DCJ or until s/he is 70 – whichever comes first. If s/he has clocked 10 years as DCJ before reaching 70, s/he may opt to remain as an ordinary Judge of the Supreme Court so that another person is appointed as the DCJ.
  • All JSC Commissioners to serve one 5-year term. Currently, they are eligible for 2 terms of 5 years. This excludes the Chief Justice & AG who serve on the JSC for as long as they are CJ and AG.
  • The Advocates elected by LSK to the JSC shall not practice in any court during their term in the JSC.
  • JSC will now have the power to discipline Judges through reprimands, warnings or suspension. This will cover minor cases of misconduct. Currently, their only power regards gross misconduct where they investigate complaints and recommend a presidential Tribunal which may then dismiss the complaint or recommend the removal of the Judge.
  • The Bill proposes a new office called the Judiciary Ombudsman whose role is to receive and conduct inquiries into complaints against judges, registrars, magistrates, and other judicial officers and other staff of the judiciary. The Judiciary Ombudsman shall report to the JSC on its investigations and recommend action to be taken by the JSC. Remember the JSC also has the mandate to receive complaints against Judges and other Judiciary employees.
  • The Judiciary Ombudsman will also work to sensitise and promote engagement with the public on the role and performance of the Judiciary; and to improve transparency and accountability of the Judiciary.
  • The Judiciary Ombudsman is appointed by the President with the approval of the National Assembly, from among persons who are qualified to serve on the Supreme Court (20 years’ experience).

6. ON COUNTY GOVERNMENTS

  • When a candidate for Governor is nominating a running mate who’ll serve as Deputy Governor, s/he is to “consider” candidates of the opposite gender. Not sure whether this means they MUST run alongside a Deputy of the opposite gender.
  • The National Government will (through the Constitution) take charge of some functions of Nairobi City County (it will remain a County like any other).
  • Counties will be guaranteed at least 35 of the national revenue (up from 15%).
  • There is a new fund forwards to be known as the Ward Development Fund. The fund shall receive at least 5% of all the county government’s revenue in each financial year.

7. OTHER PROPOSALS

  • A Youth Commission of 7 members to advance the participation of the youth in all spheres of public and private life, to ensure the mainstreaming of the youth perspectives in planning and decision making, and similar functions.
  • We will only one have Police Service, i.e. The National Police Service. It will no longer be composed of the Kenya Police Service and the Administration Police Service.
  • Replacement of State Officers set to retire to commence at least 6 months before their retirement and end before their retirement.

8. HEALTH SERVICES

  • Among winners of the BBI report’s proposals are healthcare workers. The task force has proposed the creation of the Health Services Commission, an agency that will be tasked with making recommendations to the government on the management of medics.
  • The proposal is a win for health workers since they, through the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU), have been lobbying for its creation in order to remove some health functions from county governments.
  • They want functions such as recruitment, deployment and discipline of medics to be handled by the Commission.

NOTE. This list does not carry all the proposed constitutional amendments.

About Whispers from the North

Whispers from the North is an online platform that appreciates the ecological, cultural and socio-economic diversities of Northern Kenya. We also acknowledge that the lives of the communities of northern Kenya has been shaped by a number of intrinsic and extrinsic factors which have led to complex challenge that calls for a multifaceted approach.

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