Order Mr Speaker! Did you mislead this House? Mheshimiwa Isaac Ruto thinks so!

I may not be an ardent fan of the Chepalungu MP, but I do love Isaac Ruto for being punctilious in reading the law. He convinced me in what he said yesterday to the Speaker that his (the Speaker's) communication to the House on the rules of engagement had a flaw.

I was really humbled by the logic of this man. He speaks his mind even if he can't build roads in his constituency because he is waiting for the Stimulus package that is taking ages to reach the grassroots. Ha! CDF is to provide water, bursaries, bla bla bla and all those 'simple peni-mbili services' to the constituents. All other jobs, major jobs, are the work of government. The balance of the CDF amount after five years, is lumped together with the Sh1.5 million winding up allowance. Ask any MP! Ha! Again!

So, after the Speaker told MPs that they'd have to raise 145 of their kind to make any amendments viable, and to force the MPs to present written amendments by this afternoon, Mr Ruto thought the Speaker had jumped the gun.

He read the Constitution of Kenya Review 2008 Act at 33(4) until the end and turned to the Constitution at 47A and realised that perhaps it was not yet the stage where the House could make changes to the draft, but only propose amendments on the draft constitution to the Attorney General, who will then forward the amendments to the CoE for "consultation and redrafting."

Now according to Standing Orders, the Speaker was okay in ruling the way he did (SO1) because he reserves the right to give the way forward on matters not envisaged in the SOs.

But now, it is the CoE which has been touted as the custodian of Kenyans' views that will have the ultimate say on the kind of Constitution that the country will have.

Even if Parliament refuses to endorse the draft, say if the CoE says a big 'no' to the proposals that'd have been passed by the House, then it will boil down to the PSC, the Reference Group and the CoE to work that out. The PSC's leadership thinks the draft as it is is just perfect. They've said as much.

The crux of the matter under contention appears to be a ploy for the MPs who want the document changed to come to Parliament and ensure their proposals are passed. After that, they can influence the CoE to take on board the proposals, so that when the document comes to Parliament after being refined by the CoE, it will be upon those against the proposals to raise the 145 MPs to amend the draft Constitution.

Ha! That's the politics.

So Mr Ruto argues that his issue as per the Review Act is on the “sequence” of the deliberation in Parliament. “Let’s follow the law, let’s do things as stipulated in the Act,” said Mr Ruto.

The Review Act at section 33(4) reads: “ The National Assembly shall, within thirty days of the tabling of the draft Constitution under subsection (3), debate it and -
(a) approve the draft Constitution without amendment and submit it to the Attorney-General for publication; or
(b) propose amendments to the draft Constitution and submit the draft constitution and proposed amendments to the Attorney-General, who shall, within seven days submit them to the Committee of Experts for consultation and redrafting.”
This argument on this section of the Review Act gains weight when it is read together with the current Constitution which at section 47A (2)(b) reads “when a draft Constitution proposing the replacement of this Constitution has been introduced into the National Assembly, no alteration shall be made in it unless such alteration is supported by the votes of not less than sixty-five per cent of all the members of the Assembly (excluding the ex officio members).”
But then in the Constitution –a law superior to all other Acts of Parliament—directs that proposals be done as stipulated in an Act of Parliament and that’s where the Review Act and Mr Ruto’s argument comes in.
The Chepalungu MP noted that based on this section, the threshold set in the Act did not apply because proposals can either be taken on board by the CoE or rejected. It is after Parliament’s proposals are sent to the CoE, through the Attorney General, and the draft law is brought back to the House “after consultation and redrafting that this document begins life as a ‘draft Constitution’.”
The Review Act at section 33(6) notes that “If the National Assembly fails to approve the draft constitution” after its proposals have been presented to the CoE, then “a joint meeting between the Parliamentary Select Committee and the Committee of Experts shall be convened by the chairperson of the Committee of Experts to consider the issue or issues and to make recommendations to the National Assembly.”
It is at this meeting that a Reference Group – representatives of the public—will come in and within seven days, a decision ought to be reached and the final draft law presented to Parliament for approval within 21 days.
Indeed, from Mr Marende’s explanation on Tuesday evening, that the chairman of the Parliamentary Select Committee on Constitution Review, Mr Abdikadir Mohammed, tables the report in the House, Mr Ruto’s argument is valid in the sense that the proposed law before the House is just a report of the Committee of Experts.
Now that Mr Nzamba Kitonga the CoE could not table the document by virtue of not being a member of the House, then the document becomes just a report.

Ha! How did the Speaker miss this? Or is it me who has not read the Standing orders?

And then there are those who argue that the CoE's tenure is dead. No, their mandate is in the Constitution, so even if the government says their contract ends on February 23, it still remains the body, as per the Constitution, until 45 days after referendum.

Now, I know, the MPs are 'powerless' but is the CoE incorruptible? We'll know when they throw away their revised version in favour of that done by the MPs. Watch this space.

PS1: Now now now, Alex E., can you tell me if I am thinking 'illegally'?