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“Omogeni has been opposed to the BBI process ab initio so we don’t expect him to support it now.”
Constitutional experts say there is a problem not only with the Bill and how it has been handled so far but also with the legality of Parliament.
Former MP Abdikadir Mohamed, lawyers Ekuru Aukot and Bobby Mkangi – all former members of the committee of experts that midwifed the Constitution – said there was a problem with the two Houses passing what is considered different versions of the BBI Bill.
Mkangi said: “Debating different Bills will throw the entire exercise into shambles because they are supposed to be determining one Bill. The fact that they are already looking at two versions, I suspect people are waiting to rush to court to have the exercise nullified.”
“I suspect that the approaches are strategic towards scuttling the whole process. The Senate proclaiming it is looking at a different Bill is dangerous enough. If they go forth to amend it, that will be another layer of traps,” the lawyer said.
Abdikadir said Parliament is supposed to pass or reject a similar Bill.
“Ideally there should be a committee of the two Houses that harmonises the Bill. It looks like there was a committee and they have disagreed…but there should be one Bill,” the former Mandera Central MP said.
He said the Houses’ powers to instigate amendments are hinged on whether the initiative is popular or not.
The former MP says the BBI Bill is not a process of amendment by popular initiative.
He thus argues that senators or Parliament generally can do as it pleases since the Bill does not fit the definition of one under a popular initiative.
“The procedure that was followed was not the one intended in the Constitution. Nothing, therefore, stops Parliament from doing whatever it wants with the Bill,” the expert told the Star on the phone.
“Who are the citizens proposing this Bill? Popular mandate means a group of concerned citizens coming together, either through organised groups, NGOs or individually.”
Abidkadir said that since in his consideration the Bill is not driven under a popular mandate, Parliament can access the document and the typos can be sorted out as part of the process.
However, he holds that there would be substantial conflict in the Bill providing for additional constituencies without amending the provisions giving the IEBC powers to delimit constituency boundaries.
“Anyone can go to court and say the power rested with the IEBC when the Bill was passed. If you can see that conflict right now, why not correct it?” the expert asked.
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