MPs may have tricked Kenyans into believing that they were on their side when they met for a special sitting on Tuesday and Thursday to consider President Uhuru Kenyatta’s memorandum on the Finance Bill 2018.
A section of the MPs had planned to veto President Kenyatta’s reservations on the bill because it was going to make the cost of life unbearable if passed in the form and text it was in.
They cited the President’s proposal of eight percent VAT on petroleum products, the 1.5 percent levy on housing fund as well as the extra Sh18 for every litre of Kerosene bought among others.
In so doing, they lobbied a good number to shoot down the president’s views ahead of the big day. Just like amending the Constitution, it requires two-thirds or at least 233 of the 349 MPs in the House to veto the president’s reservations on a bill.
Although the MPs had been lobbied by their respective party leaders to pass the president’s proposals, they were in a Catch-22 situation.
They were to appease their party leaders, President Uhuru Kenyatta, who held a Jubilee parliamentary group meeting at State House, Nairobi on Tuesday and National Super Alliance (Nasa) leader Mr Raila Odinga.
Mr Odinga had chaired the Nasa parliamentary group at Orange House on the same day President Kenyatta did at State House. However, the tricky part was that they were to appease their party bosses without betraying the public.
But how possible could this have happened? Unbeknown to the public, the MPs may have just killed two birds with a stone.
On Thursday afternoon, after approving the supplementary budget the MPs retreated to the committee of the Whole House to consider the memorandum.
Narok Woman Representative Soipan Tuya, also a member of the Committee of Chairpersons, was the chair of the committee for the afternoon.
When Ms Tuya put the clause on the eight percent VAT on fuel products to vote, she declared the “ayes” had won.
Those in opposition protested and stood up as the House almost degenerated into chaos.
According to Article 115 of the Constitution, those voting “nays” have the obligation to confirm that they have the requisite two-thirds majority before the presiding chair calls for a division.
Though leader of majority Aden Duale led some members out of the chamber, a claim he confirmed saying it was meant to deny the others the numbers, it is a trick that even the opposition previously employed to have their way.
However, under the same provision and Article 122, those voting “ayes” just need to be 26, being the simple majority.
In a voice vote, the only legally known and procedurally simple process is to rule that the “ayes” have it like Ms Tuya did so that the “nays” can vote electronically or by way of being counted, which is called roll call vote so that their number of 233 is confirmed.
The roll call vote is quite popular in the US congress.
When Ms Tuya called for a roll call, the MPs would not listen with Isiolo Woman Representative Rehema Dida Jaldesa captured on the table microphone saying that they did not want the roll call because it would be known which side they were leaning on.
She would also be heard advising Mandera North MP Bashir Abdullahi against the roll call vote.
One of the MPs, who was against the memorandum blatantly told a parliamentary orderly that all they wanted was to be allowed to shout, as they did not have time for a roll call.
The MPs opposed to the memo were clever. They did not agree to do a confirmation vote since it produces a physical list showing who voted which way (this is not possible in a voice vote), which they had just done.
The begging questions are: if indeed they were committed to a public course as they claimed, why did they decline to be counted?
Why did they decline to do either electronic or roll call vote? This would have shown who was in the House at the time.
Ruaraka MP Tom Kajwang’, during his time as a member of the Chairperson of Committees in the last parliament, previously the speaker’s panel, was a stickler of the House rules and always insisted on following procedure.
What made him change this time? Our attempts to get his comment failed, as he did not respond to our queries.
If it was an amendment of the Constitution, which also requires at least two-thirds majority, would it have been amended by a voice vote?
The procedure applied on Thursday by Ms Tuya has existed since 1963 and was applied at least 12 times in the last parliament.
Why the MPs insisted on deviating this time round remains a question to be answered another day as well as their persistent desire to conceal any information showing which way they voted.
On the question of 352 MPs in the House, which forced Speaker Justin Muturi back to the House to seek clarification, the electronic system is configured to show a default total number of 352 persons before any roll call is undertaken.
The 352 number is the default number of persons that the system has allowed to speak, the 349 MPs plus the three table clerks (administrators).
However, it automatically clears itself each time a roll call is taken before any electronic voting.
On Thursday, the MPs declined the roll call, which happens by way of all members removing their logged in cards and inserting them again to commence the voting.
When Ms Tuya called for them to log out their cards several times, they refused. This confirms that there was neither a roll call nor an electronic vote.
On Tuesday, Mr Muturi had issued a communication on whether the President should be allowed to participate in law making in line with Article 115 of the Constitution after Mathare MP Anthony Oluoch raised the issue.
Mr Muturi ruled that the two-thirds voting threshold only becomes applicable if it intends to negate or amend the proposed text in respect of the President’s reservations on a bill he has rejected, in this case the Finance Bill.
“It is not a requirement that affects the quorum of the House at the commencement or consideration of the reservations,” Mr Muturi said.
In terms of the procedure to be adopted in considering the reservations, all questions for decision in the House are put in the positive.
According to Mr Muturi, at that point, the provisions of Article 122 (1) of the Constitution requiring a simple majority of members (26) on a vote shall apply.
The chairperson of the Committee of the whole House will thereupon announce the result of the voice vote, which she did.
It is expected that any member intending to reject the proposed text of the reservation or a member intending to amend the clause would rise to cause a Division as contemplated by Standing Order 72(1) (b).
The same is also provided for in Standing Order 72 on the electronic voting.
If at least 30 MPs rise to claim a Division, a Division Bell is rung for 10 minutes and a further five minutes if by the close of the first duration, the requisite numbers would not have been achieved.
If the number is confirmed, the House shall then proceed to an electronic vote.
Where there are less than 233 MPs in the House despite the ringing of the Division Bell, those claiming a Division will have failed to marshal the numbers required under Article 115(4)(a) of the Constitution and therefore uphold the earlier decision made by way of a voice vote.