Speaker's ruling makes it hard for MPs to amend draft

House Speaker Kenneth Marende wielded the big stick and warded off spirited attempts by some MPs to amend the proposed new Constitution currently being debated in Parliament.

In his ruling on Wednesday, the Speaker blocked an attempt by Mr Isaac Ruto (Chepalungu, ODM), to open the door for MPs to make proposals to amend the draft Constitution.

“The threshold to amend a draft Constitution was deliberately set high to ensure that only in the most meritorious of circumstances could this happen,” said the Speaker. “This is a stage where the National Assembly is provided with yet another opportunity to input not to disrupt the process by which the people of Kenya seek to exercise their sovereign right to replace the Constitution.”

The ruling effectively makes it difficult for the lawmakers in the House, already divided along ethnic and party lines, to amend the draft because doing so will require 65 per cent of the members as prescribed by the Constitution.

Thus, following the disagreement between MPs at their recent consensus-building meeting at Nairobi’s Kenya Institute of Administration, it will be an uphill task for the proponents of amendments to raise the 145 members required to pass such a proposal. On the other hand, those seeking to pass the draft as it is, will need to just raise 76 members to vote against an amendment.

While the Review Act at section 33(4) is silent on the threshold required to make amendments, Mr Marende said that that failure to expressly refer to the constitutional provision for a 65 per cent majority for constitutional amendments was “unnecessary and superfluous.”

“The constitutional provisions on the disposal by this House of a Draft Constitution apply because the Constitution says so. It matters not whether an Act of Parliament also says so or even purports to repudiate that position,” the Speaker ruled.

He threw out Mr Ruto’s interpretation that the document before the House was not a ‘draft Constitution’ saying recognizing the document as a ‘report of the Committee of Experts’ would be “inconsistent with either the letter, spirit or intention of the Constitution or the Review Act.”

“Such a finding,” the Speaker added, “would amount to this House arrogating to itself a higher pedestal than the other organs of review.”

According to Mr Marende, “it does not appear to him” that after Parliament religiously followed the Review Act to the letter all along, it was now about to “overturn all preceding agreements.”

It is the 10th Parliament (the current Parliament) that made the Review Act and amended the Constitution to allow for the ‘replacement’ of a Constitution.

Mr Ruto’s argument, the Speaker said, would hold water if the House was dealing with an ordinary Bill and not the replacement of the Constitution.

“A proper reflection on the constitutional review process makes it clear that it is entirely different from the ordinary process of lawmaking. It is a process that was carefully calculated to learn from the mistakes of the past,” said the Speaker.

This decision hugely leans on the public opinion that the CoE was the custodian of Kenyans’ views and thus what it prescribed was the best for the country.

It also takes cognizance of the vast demand in the public domain for the MPs to endorse the draft without amendments and send it to the Attorney General Amos Wako for publication as a Bill.

Mr Marende added: “All organs of review are required to ensure that the outcome of the review process faithfully reflects the wishes of the people of Kenya.”

To appeal to a public that has been hugely sceptical of the lawmakers, the Speaker once again rose to the occasion and reminded the MPs that the review process is “the most important national project ever undertaken since independence.”
“We carry the hopes, aspirations and fears of an entire nation. It is a solemn trust that we must discharge with honour and responsibility,” Mr Marende told the muted House.

On Tuesday, Mr Ruto raised his objections reckoning that the document before the House amounted to a report and thus did not need the 65 per cent threshold (145MPs) for it to be amended.