Proponents of a constitutional review before next year's general election are mulling a parliamentary initiative should the Court of Appeal fail to resuscitate BBI.
However, this route will deal a severe blow to radical changes that the two intended to engineer because most require a referendum.
The Star has established that the pro-BBI forces are exploring starting a fresh process in Parliament to salvage what they see as progressive proposals.
The plan is to have the BBI legal experts identify issues that require approval without a referendum so that a new Constitution of Kenya (Amendment) Bill, is introduced in the bicameral House.
Already, the BBI secretariat is gearing up for a legal showdown with the anti-BBI troops.
President Uhuru Kenyatta and ODM chief Raila Odinga are determined to have the Court of Appeal overturn a five-judge bench ruling that blocked the BBI process.
The High Court declared the BBI process to amend the Constitution as unconstitutional, null and void.
On Monday, BBI secretariat co-chair Denis Waweru confirmed to the Star they are exploring the parliamentary route even as they pursue an appeal against the High Court ruling.
The former Dagoretti South MP said while they are optimistic of a resounding victory at the Court of Appeal, “when push comes to shove we shall consider that option.”
“That is one of the options we will explore,” Waweru said without elaborating.
The ex-lawmaker was, however, cautious saying that at the moment their focus is on the appeal to ensure the determination is rendered expeditiously.
“For now, we are focusing on the court process, expedite it and ensure we get away with it as quickly as possible,” Waweru said.
Ndaragwa MP Jeremia Kioni who chairs the parliamentary Constitution Implementation Oversight committee has said nothing stops Parliament from bringing back BBI through a parliamentary initiative.
The MP, a key BBI proponent, says that should the BBI promoters hand over the Bill to Parliament, then the House has the requisite numbers to approve the proposals in line with the Constitution.
“We can bring back the Bill to Parliament for a parliamentary initiative should we get the blessings of the promoters. Nothing stops Parliament from processing the Bill,” Kioni told the Star.
Legal experts have argued that some of the proposals contained in the Constitution of Kenya (Amendment) Bill, 2020 do not necessarily require a referendum and would be easily be enacted into law if Parliament approves them.
This includes creating a ward development fund and increasing county allocations to at least 35 per cent from 15 per cent.
However, both Houses of Parliament would require a two-thirds majority to push such amendments through the statutory Second and Third Reading stages of Parliament before the President signs them into law.
It has emerged that those pushing for the parliamentary route are buoyed by the overwhelming support the BBI bill received in the two Houses last week before the High Court slammed the brakes on the referendum push.
A source at the BBI secretariat told the Star that talks to explore the parliamentary initiative are at advanced stages.
"It would roll into motion immediately in case the Court of Appeal rejects the appeal," he said adding that a team is already dedicated to explore the option.
In the National Assembly the pro-BBI troops recorded a super majority of 235 MPs, above the 233 that was required push the BBI Bill through.
Only 83 MPs opposed the Bill which was speedily pushed through the statutory Second and Third Reading stages.
In a display of the handshake's numerical supremacy, the BBI proponents also received the support of 51 senators against 12 to have the Bill pass the Senate.
Notably, Amani National Congress leader Musalia Mudavadi of the One Kenya Alliance has also strongly backed the Parliamentary route and called for a national dialogue to build consensus.
Musalia has recommended that all leaders consider a return to the conversation table and restart a national dialogue styled on the format of the 1997 IPPG arrangement.
According to Musalia, the national dialogue should be as inclusive as possible to isolate issues that do not require a referendum so that they can be enacted.
“Those issues should then be channelled into a parliamentary initiative process of amending the Constitution,” Musalia said in a statement.
Constitutional lawyer Charles Kanjama said it would be possible to turn the BBI Bill into a parliamentary initiative to amend the Constitution provided the clauses that were declared unconstitutional are plucked out.
He said that even in the parliamentary initiative, a referendum would be necessary if the proposals would seek to amend the protected functions of the Constitution.
“You can end up with a referendum even with the parliamentary initiative as long us it affects the functions provided for in Article 255 of the Constitution,” he said.
Lawyer Danstan Omari told the Star while a parliamentary route would be an open option, some of the radical issues that were likely to benefit the political elite would require a referendum.
“For instance, the expansion of the Executive would mean that you tinker with the structure of government and that would require a referendum,” he said.
The lawyers warned that the proponents will have to reproduce the BBI Bill to have one that does not directly mirror input by other stakeholders who are not MPs.
“Proposals like the increase in the number of constituencies do not require a referendum while others require administrative and policy interventions by the government," he said.
Some of the highlights in the BBI that lawyers argue require a referendum include the creation of the office of the Judiciary Ombudsman and the introduction of a prime minister and two deputies.
The BBI proposes the remodelling of the Parliamentary system by bringing the government back into the House, including the Prime Minister, Deputy Prime Ministers, Cabinet Ministers and the Attorney General.
Creating the office of leader of the official opposition would also require a referendum.
These amendments would require a referendum as it affects the function of Parliament, lawyers say.
Experts say that if the BBI Bill is reintroduced as a parliamentary initiative, then it must go through all the legislative stages as required by law.
This would would pose the challenge of tight timelines. For instance, after the first reading, the Bill cannot be called for a second reading in either House within 90 days.
The country has only 14 months to the 2022 polls.
Bungoma Senator Moses Wetang'ula agreed that with only 14 months to the general elections, time is running out for major electoral and legal reforms that are required to be carried out.
"Reforming IEBC, registration of voters, validation of the voters register, holding a referendum, preparing for a general election and holding a transitional general election are all very momentous activities in the political calendar of our country,” Wetang'ula said.
Wiper leader Kalonzo Musyoka warned against disparaging of institutions including the presidency.
“As a nation, even though we may occasionally disagree on a number of issues, we have always eventually pooled together for the sake of our nation,” Kalonzo said in a statement.
He went on, “In this regard, we must seek a common ground as one indivisible country Kenya and chart the way forward on the matter of the BBI.”
(Edited by V. Graham)