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{
    "id": 668190,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/668190/?format=api",
    "text_counter": 132,
    "type": "other",
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    "speaker": null,
    "content": "(i) Who is to determine whether a Bill is one that falls within the provision of Article 255(1) of the Constitution and therefore one that requires a referendum? (ii) At what point, in the consideration of the Bill should such determination be made? As hon. Senators are aware, Chapter 16 of the Constitution provides for amendment of the Constitution. In this regard, Article 256 of the Constitution provides for amendment by way parliamentary initiative while Article 257 of the Constitution makes provision for amendment by way of popular initiative. Either way, whether a constitutional amendment Bill proposes amendment by parliamentary or by popular initiative, if the Bill provides for any of the matters set out in Article 255(1) in terms of Article 256(5) and Article 257(10) respectively, the Bill would require to be submitted to the people for ratification by way of a referendum. It is however noteworthy that the Constitution does not provide details as to when or by whom the determination as to the applicability or otherwise of Article 255 of the Constitution to a Bill for the amendment to the Constitution is to be made. Our Standing Orders also do not contain provisions on this matter. Hon. Senators, there is no doubt that for good order and in order to provide guidance to Senators as they consider no less than a Bill for the amendment of the Constitution, a determination would require to be made in the Senate as to the nature of a Bill to amend the Constitution and in particular whether the Bill falls within the ambit of Article 255 of the Constitution. It cannot be the case that this determination would be reserved to be made after the Senate has concluded its consideration of a Bill. This cannot have been the intention of the Constitution and would certainly not be useful to the process of consideration of the Bill. I therefore find and rule that the determination as to whether a Bill is one that falls within the province of Article 255(1) of the Constitution and therefore one that requires referendum ought to be made by the Speaker of the Senate whenever the Senate is to consider a Bill for the amendment of the Constitution. As to the point at which such determination is to be made our procedure regarding voting on a matter other than a Bill provides useful lessons. Standing Order No.72(1) requires that:- “where the Senate is to Vote on any matter other than a Bill, the Speaker shall rule on whether the matter affects or does not affect counties.” Standing Order No.72(2) further provides as follows:- “that the Speaker’s ruling under paragraph (1) shall be made after conclusion of debate on the matter but before the Question is put.” Hon. Senators, this would similarly be an appropriate point at which to make a determination as to whether Article 251(1) of the Constitution applies to a Bill proposing amendments to the Constitution. Prior to such determination, Senators in the Committee and in the Plenary as well as the public, would have an opportunity, in the course of deliberation on the Bill, to ventilate on this matter before the final determination by the Speaker. The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate"
}