THE PLACE OF PARLIAMENT IN THE REVIEW OF THE CONSTITUTION

1.The Constitution makes it a requirement that Parliament shall publicize any Bill to amend the Constitution and facilitate public discussion about the Bill.

2. It is estimated that it can take at least six months for a Bill to amend the Constitution under Article 256 of the Constitution to be considered and passed by one House of Parliament.

The Constitution provides that for Second Reading alone, a Bill cannot be called for Second Reading within ninety days after the First Reading.

3. Further, noting both Houses must consider and pass a Bill to amend the Constitution, it would therefore appear one would require at least 12 months for a Bill to amend the Constitution on matters not relating to Article 255 of the Constitution to be passed by both Houses.

The process would therefore even be longer if a Bill passed by Parliament proposes an amendment on the matters contained in Article 255 of the Constitution which would require approval vide referendum.

4. With all these procedural requirements, one can certainly say the drafters of the Constitution embraced “a rigid” rather than “a flexible” approach of amending the Constitution perhaps with a view of protecting its sanctity.

In fact, it therefore appears it is not as easy to amend the Constitution as there are timelines to be watched, thresholds to be attained and activities to be undertaken prior to amending the Constitution.

5. Since the commencement of the 12th Parliament, we have witnessed a proliferation of proposals to amend the Constitution by Members of the National Assembly.

So far, there are over ten legislative proposals by Members of the @NAssemblyKE proposing amendments on a myriad of issues including proposals for the abolishment of the Senate, proposals for the creation of a parliamentary system of government,...

...proposals for the appointment of members of Parliament as Cabinet Secretaries which is a feature of a Parliamentary System.

...proposals for abolishment of the two-thirds gender rule and proposals for strengthening the oversight role of the @NAssemblyKE vis-à-vis the supervisory role of the High Court are already being considered by the Departmental Committee on Justice and Legal Affairs among others.

Review of the Constitution by Parliament: Opportunities and Challenges

6.  Whereas Parliament has indeed a clear role of amending the Constitution whether through Parliamentary Initiative or Popular Initiative there exist a lacuna in law on a number of issues:-

(1)Reading Article 256(5) of the Constitution, it is not clear within what timeline the President is required to request the IEBC to conduct a referendum, if a Bill to amend the Constitution relating to matters under Article 255 of the Constitution has been passed by Parliament.

The provision only provides for the timelines within which a national referendum is to be undertaken.

(2)Even if this is done, except the provisions contained in the Elections Act of 2011 there is no law providing on the manner in which a referendum is to be conducted.

Presently, I am aware that CIOC is in the process of developing a Bill on referendum procedures and elections and this is indeed paramount as we cannot talk of constitutional review without a law on referendum.

(3) Reading through Article 257 of the Constitution, there exist even more gaps that need to be legislated on.

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