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{
    "id": 1067235,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1067235/?format=api",
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    "content": "Members will note that Clause 5 of the Bill seeks to amend Article 31 of the Constitution which provides for the right to privacy. Any amendment proposed to a provision of the Constitution contained in the Bill of Rights is protected under the matters listed in Article 255(1) of the Constitution, and must be submitted to the people for approval in a referendum. By this argument, therefore, the question of unconstitutionality of the provisions becomes moot, or at the very least, premature as the Bill must be submitted to the people in a referendum. Any attempt by the Speaker to make a preliminary finding on the constitutionality of the provisions would be premature, speculative and, ultimately, an exercise in futility. It would be tantamount to putting the cart before the horse. In any event, Article 165(3)(d) of the Constitution mandates the High Court to hear any questions on the interpretation of the Constitution and settle any contestations with finality. Indeed, I am informed that currently, the High Court has eight consolidated constitutional petitions challenging the constitutionality of the entire BBI process and had issued an order precluding the President from assenting to the Bill if passed by Parliament until the determination of the petitions. The Petitions are: (i) Petition No E282 of 2020: David Ndii & Others vs. Attorney General & Others. (ii) Petition E397 of 2020: Kenya National Union of Nurses vs. Steering Committee of BBI & Others. (iii) Petition No E400 of 2020: Third Way Alliance Kenya vs. Steering Committee of BBI & Others. (iv) Petition No E401 of 2020: 254 Hope vs. Attorney General & IEBC. (v) Petition No E402 of 2020: Justus Juma & Isaac Ogola vs. Attorney General & Others. (vi) Petition No E416 of 2020: Morara Omoke vs. Raila Odinga & Others. (vii) Petition No E426 of 2020: Isaac Aluochier vs. Steering Committee of BBI & Others. (viii) Petition No E2 of 2021: MUHURI vs. IEBC & Others (formerly Mombasa Petition E01 of 2020) Hon. Members, the third issue was with regard to whether, and to what extent the Bill may be amended and the value and place of public participation in the consideration of a Bill to amend the Constitution by popular initiative. The Committee notes at Paragraphs 364 and 365 of its Report that the role of Parliament in considering a Bill to amend the Constitution is not ceremonial and that Parliament can amend the provisions of such a Bill or correct any errors of form or typographical errors to bring drafting harmony to the Bill. Additionally, the Committee notes that pursuant to provisions of Article 257(10) of the Constitution, Parliament cannot replace or usurp the people’s views on a popular initiative with its own. It, therefore, rules out amendments to a popular initiative Bill, finding instead, that the only changes that may be made to such a Bill would be correction of any errors of form."
}