Attorney-General Justin Muturi has made a proposal that could see Mr Raila Odinga and Ms Martha Karua assume leadership of the minority side in Parliament, arguing his suggestion does not require a referendum to implement.
Contributing to a debate on the creation of the office of official leader of the opposition, which President William Ruto has also backed, Mr Muturi says MPs can amend the Constitution to designate the runner-up in a presidential vote alongside their running mate as minority leaders in the National Assembly and the Senate, respectively.
If the proposal were to be implemented, it would mean Mr Odinga would replace Ugunja MP Opiyo Wandayi as the minority leader in the National Assembly, while Ms Karua would succeed Senator Stewart Madzayo in the Senate.
According to Mr Muturi, who is the government’s chief legal adviser, Parliament can “tinker” with the Constitution to increase the number of members from 416 to 418 to facilitate the runners-up in the presidential election to become automatic members of Parliament.
“It is possible and we do not need a referendum. We can tinker a bit with Article 108 to have the person who comes second in the presidential polls become the minority leader in the National Assembly and the running mate the minority leader in the Senate,” argues Mr Muturi.
Article 108 of the Constitution states: “There shall be a leader of the majority party and a leader of the minority party.”
It explains the leader of the majority party shall be the person who is the leader in the National Assembly of the largest party or coalition of parties.
And the leader of the minority party shall be the person who is the leader in the National Assembly of the second largest party or coalition of parties.
Hierachy
In terms of hierarchy, the law provides: “The following order of precedence shall be observed in the National Assembly – the Speaker of the National Assembly; the leader of the majority party; and the leader of the minority party.
“The offices of majority and minority are heavily facilitated by the Parliamentary Service Commission (PSC). The second presidential candidate in the last general election can take up the minority leadership slot in the National Assembly and their running mate the same slot in the Senate. The number of MPs will increase to 68 in the Senate and 350 in the National Assembly. Now this arrangement will ensure we have a true opposition in Parliament,” says Mr Muturi, who served as Speaker of the National Assembly from 2013 to 2017.
Majority and minority leaders enjoy more trappings of power compared to other members, including higher perks recognised by the Salaries and Remuneration Commission (SRC).
By arguing his proposal does not require a referendum, Mr Muturi is banking on the interpretation that his recommendation does not alter the function of Parliament.
Attorney-General Justin Muturi. Mr Muturi is banking on the interpretation that his recommendation does not alter the function of Parliament.
“A proposed amendment to this Constitution shall be enacted in accordance with Article 256 or 257, and approved in accordance with clause (2) by a referendum if the amendment relates to the functions of Parliament,” Article 255 (1) (h) of the Constitution states.
Other changes that require a referendum are those that touch on the supremacy of the Constitution; the territory of Kenya; the sovereignty of the people; the national values and principles of governance; the Bill of Rights; the term of office of the President; the independence of the Judiciary and the commissions and independent offices to which Chapter 15 applies; the objects, principles and structure of devolved government; or the provisions of this Chapter on an amendment that requires a plebiscite.
Referendum
However, Mr Wandayi disputes the AG’s interpretation, insisting any constitutional changes to increase the membership of Parliament would require a referendum.
“This is circumventing the stringent requirements under Article 255 of the Constitution. Any time we are introducing new members or trying to tinker with the composition of Parliament, basically it falls in the ambits of Article 255. Let us avoid these mind games and cherry-picking. Let’s have a holistic review of the Constitution and subject any agreed changes to a referendum,” Mr Wandayi argues.
The Ugunja MP says the ruling coalition should approach any proposed changes to the supreme law with an open mind, especially after the Supreme Court set a precedent in the Building Bridges Initiative (BBI) case.
“No changes protected in law will be initiated without going to the people. The mood of Parliament now is not for changing the law to increase positions.”
National Assembly Majority Leader Kimani Ichung’wah says Parliament is yet to receive the advisory from the AG.
But the Kikuyu MP reckons: “In my personal opinion, this will require a referendum.”
The former speaker’s proposal now gives a new dimension to the debate on the office of the opposition leader, after Azimio la Umoja One Kenya Coalition mooted the idea and President Ruto also wrote a memorandum to Parliament on the same.
Wiper leader Kalonzo Musyoka early this year also welcomed the move, saying it will help the opposition to provide oversight over the government. BY DAILY NATION