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{
    "id": 1067226,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1067226/?format=api",
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    "content": "referential and that the text of the Bill is sufficiently clear as to what it intends to amend. The errors were noted in Clauses 13 (b), 48, 51(a) and paragraph 1(1) of the Second Schedule. With the public debate that has raged on regarding this matter, and the explanations given by the originators of the Bill, any person interested in the matter surely understands the intentions of the promoters notwithstanding the errors. The House will therefore continue to consider the Bill that was introduced and committed to the Justice and Legal Affairs Committee (JLAC) as submitted by the IEBC. Hon. Members, the second issue was on whether the provisions of the Bill upset the basic structure of the Constitution and whether it contains unconstitutional constitutional amendments. I note that the Committee has, at paragraphs 369 to 379 of its Report, also exhaustively interrogated the constitutional propriety of the Bill. As noted by the Committee, the premise behind the “basic structure theory” that is said to preclude the making of certain amendments to a constitution is the centrality of the provisions targeted for amendment to the sovereign will of the people who give themselves a constitution for posterity. The theory is majorly derived from decisions made by the Supreme Court of India on amendments made to that country’s Constitution by the Parliament of India. Hon. Members will appreciate that the constitutional history and the text of the Constitution of Kenya and that of India are markedly different. A key departure between the two Constitutions is the manner in which they provide for their amendment. Whereas the Indian Constitution provides for amendment of the Constitution by Parliament only, the Constitution of Kenya provides for amendment by either parliamentary initiative or by popular initiative. Further, Hon. Members, the Indian Constitution does not expressly protect any part of the Constitution from being amended. Conversely, Article 255 of the Constitution of Kenya outlines the additional requirement of submission of a Bill for approval at a national referendum if the Bill seeks to amend any of the matters listed in the Article. Hon. Members, when comparing our jurisdiction with the United States of America, it is notable that Article V of the Constitution of the United States of America provides as follow: “The Congress, whenever two-thirds of both Houses deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two- thirds of several states, shall call a convention for proposing amendments which, in either case, shall be valid to all intents and purposes as part of this Constitution when ratified by legislatures of three-fourths of the several states, or by conventions in three-fourths thereof as one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the First and Fourth Clauses in the Ninth Section of the First Article and that no state, without its consent shall be deprived of its equal suffrage in the Senate.”"
}