The government suffered a major setback after Cord MPs rallied to reject a Bill that sought to regulate funding for non-governmental organisations.
The Bill also sought to change 48 other laws that many considered unconstitutional.
The Statute Law (Miscellaneous Amendments) Bill, 2013 was shot down by MPs Wednesday evening when MPs were asked to vote for its Second Reading.
So large is the Bill that it had been split into two volumes.
The large one was rejected Wednesday and the second smaller one has seven laws that affect counties, meaning it has to be debated by the Senate as well.
Cord MPs organised effectively to deal their Jubilee colleagues a crushing and surprising defeat in both the vote by acclamation and the second one by the physical vote.
Speaker Justin Muturi ordered the physical vote after Jubilee, surprised that Cord had outshouted them, got members to ask for the second round of voting.
Cord won 83-73, with eight MPs abstaining.
Many who spoke about the omnibus Bill at the Second Reading, which was spread over several days, had expressed opposition to the proposed law.
They pointed out that a number of amendments were unconstitutional.
On Wednesday morning, at the last stage of the Second Reading, the lawmakers from both political divides challenged it saying it contained many provisions that violated the supreme law.
Among the proposed changes that were affected was a proposal to allow the National Intelligence Service to interfere with anybody’s communications if that person is under investigations or is suspected to have committed an offence.
The spy agency would have been given the power to do that without getting a warrant from the courts.
The NIS would have had the power to investigate, monitor or otherwise interfere with a person’s communication if someone is under investigation by the service.
The current law allows them to do that only if the courts issue a warrant after a request is made and a judge finds that that is necessary.
The NIS would have had their mandate expanded to cover people “subject to the investigation by the service.”
The provision to have a warrant issued by a judge before that is allowed would also have been dropped.
This suggests that the spy agency could have had the power to open and keep letters and parcels, listen in on phone conversations, read text messages or even block them from getting to recipients if they suspect someone is a threat to security or is under investigations.
Under the proposals submitted to the National Assembly by the Attorney General, the Director-General of the service had asked for the power to make any regulations for the running of the service.
He would have been given the power to appoint “such number of members of the Service as may be necessary for the proper and efficient discharge of the functions of the Service.”
Before the morning sitting ended, the government had appeared to bow to pressure and Majority Leader Aden Duale announced he would withdraw a proposal to cap foreign donor funding of non-governmental organisations.
This would also happen in regard to two other contentious proposals that had attracted public disapproval after they were labelled unconstitutional.
National Assembly Majority Leader Aden Duale (URP) said he would delete the controversial NGO amendment and also two other proposed changes touching on the membership of the Salaries and Remuneration Commission and another on the appointment of the Inspector-General of police and the two deputies.
“I will withdraw the proposal on SRC, PBO and national police service act which is clearly unconstitutional. I’m a good recipient of the donors’ money. We make laws for posterity. We will do a consensus on other contentious clauses before we move one” Mr Duale told the House when the Bill was brought for its Second Reading.
The Attorney-General Githu Muigai also came under fire from MPs who accused him of trying to change the Constitution through a miscellaneous Bill now before the House.
The lawmakers rejected the Statute Law (Miscellaneous Amendments) Bill, 2013 saying most of the proposals carried by the omnibus Bill were injurious to the Constitution.
Prof Muigai was also criticised for proposing substantive changes to statute laws as opposed to forwarding minor changes that would not change the core meaning of the existing laws.
“I am shocked and perturbed by what the AG has proposed in this law. I do not understand why the AG who is schooled in law could bring such amendments that are clearly unconstitutional,” said Suba MP John Mbadi (ODM).
The amendment targeting the Public Benefit Organisations Act attracted opposition from the legislators who said it would be more disastrous to limit funding for NGOs.
“If we cap the money received by these organisations then we risk suffocating them and those people who entirely depend on them for survival,” said Mukurwe-ini MP Kabando wa Kabando (TNA).
“The AG wanted to sneak these provisions because he knows most of us are new in this House and we could have passed. Most of us have benefited one way or another from assistance from NGOs,” said Wesley Korir (Independent).
The AG wanted to delete the provision in the National Police Service Act that requires observance of gender parity in the appointment of the Inspector-General of police and the two deputies.
“This is annoying and unacceptable. It takes us back several years and above all is unconstitutional,” said Kandara lawmaker Alice Muthoni (TNA).
Prof Muigai also proposed that SRC members be employed on a full time basis but the lawmakers fiercely opposed it.