Parliament at crossroads as MPs present two referendum bills

Parliament is racing against time to craft a legal framework for conducting a referendum in the event the Building Bridges Initiative process proposes one.

However, the National Assembly may have to first deal with the challenge presented by two referendum Bills that are set to be tabled when the House resumes on June 2. 

The proposals signal that the political players behind the BBI are keen on having a referendum before 2022.

The referendum is touted as the reason President Uhuru Kenyatta and ODM leader Raila Odinga have been whipping their troops in Parliament.

Jubilee cracked the whip on its rebels in anticipation of the BBI changes that could reform the executive structure.

Days after Ndaragwa MP Jeremiah Kioni published his Referendum Bill, 2020, a committee of the National Assembly has brought out its version for publication.

The Justice and Legal Affairs Committee (JLAC) now want to be allowed to take charge of the process. 

The committee is chaired by Baringo North MP William Cheptumo – a key ally of Deputy President William Ruto.

He said that much as Kioni has a right to come up with a referendum bill, matters involving elections fall within JLAC mandate.

Endebess MP Robert Pukose had also presented to Speaker Justin Muturi a legislative proposal streamlining the verification of signatures.

Currently, there is no legal or constitutional provision for conducting a referendum, a situation that scuttled Thirdway Alliance Party of Kenya leader Ekuru Aukot's Punguza Mizigo initiative.

JLAC’s draft Referendum Bill, 2020 obtained by the Star is profoundly different from the Constitutional Implementation Oversight Committee (CIOC) chairman’s proposal.

The Cheptumo Bill, for instance, proposes that the referendum question be framed within 21 days while Kioni seeks to have it done in 14.

Whereas Kioni wants the plebiscite conducted alongside the general election, JLAC proposes timelines after the IEBC receives the Bill.

“The Commission (IEBC) shall conduct a referendum within 90 days from the date of a proclamation,” the Bill reads.

It says a proclamation follows the assent of a bill from the county assemblies after it is approved by both Houses of Parliament and assented to by the President.

Whereas Cheptumo proposes that a petition challenging a referendum outcome be filed in 28 days, Kioni’s proposal is rooting for 14.

JLAC has specified that such a case would be dispensed within six months; and that any persons accused of corruption during the vote be enjoined in such a case.

Cheptumo’s Bill also allows county governments to hold local referendums on county laws and petition or investments decisions.

Whereas Kioni says the referendum results should be declared within 48 hours of the closure of the final polling station; JLAC’s proposal says IEBC should present the results to the President in seven days.

The Cheptumo Bill spells that BBI proponents will have to collect signatures, send them to the IEBC for verification alongside the draft bill from the dialogue process.

The IEBC, if the proposal is approved, would then send the bill – if it meets the threshold, to the 47 county assemblies for consideration within 90 days.

At least 24 county assemblies are required to communicate to Parliament their resolutions on the bill for onward transmission to the President for assent.  

After framing a question, the JLAC Bill proposes that the IEBC refers the question to the relevant House of Parliament for approval within seven days.

Once Parliament approves, the speakers of the two Houses will notify the IEBC – also within seven days, of the decision.

If MPs don’t approve a question, Cheptumo's team proposes that the IEBC reviews it considering Parliament’s recommendations within seven days.

Once approved, the IEBC will publish the question or option in the gazette and media outlets or newspapers with a national circulation.

JLAC proposes that the referendum question be worded in such a way that voters make choices by marking “Yes” or “No”.

The Bill stipulates that the IEBC, within 14 days of publishing the question, publish a notice of holding the referendum.

The notice is to specify the nature of the referendum, the question(s), symbols, day of the election – 90 days from publication of notice and polling time.

Parties, just as spelt by Kioni, will be required to form referendum committees for campaigns in support of or against the question at their cost.

Cheptumo’s Bill states that where two bills are competing, a voter can only vote for one option.

Kioni told journalists at the weekend that his Bill is non-partisan but JLAC’s timing to publish its version is likely to present a test for Raila and Uhuru numbers in the House.

Majority leader Aden Duale downplayed this saying there was nothing new in the proposed referendum laws. 

"The proposed Bills have been in the works for more than one year. It is not something new," the Garissa Township MP said.

The Star has, however, learned that the Kioni Bill was published after parties interested in the BBI process concluded that the one from JLAC was not forthcoming.

Minority leader John Mbadi said it was good riddance for the JLAC team whom he accused of delaying the proposals for months.

“JLAC has been sitting on the Bill. Where has the Bill been?  This Bill has been with them for the last one year,” the Suba South MP, also ODM chairman, told the Star.

“An NGO had agreed to sponsor a meeting of the committee and the IEBC in Naivasha but the committee leadership has been frustrating the plan,” he said.

The House leader expressed concerns that Cheptumo could have been doing the bidding of DP Ruto in efforts to delay the referendum.

“It is the chairman who was supposed to arrange the meeting but he did not,” Mbadi said, adding that they will ask the Director Legal Affairs to review the two Bills from which the House Business Committee will see the one to put in the order paper.

The DP is opposed to the referendum on grounds it is not a priority for Kenyans, especially with the Covid-19 pandemic ravaging the economy.

But Cheptumo fought the assertions that his committee has been sitting on the crucial legislation citing the need for comprehensive public participation.

The Baringo North MP said the referendum law is not one that should be rushed adding that they have held three meetings with the IEBC.

“For us, the concurrence with the IEBC was important being that they will be the consumers of the Bill,” Cheptumo said.

“We are the ones who are sponsoring the Bill. It is not true we have not been doing anything. We have even done the regulations for implementing the proposals,” the MP said.

“There should be no competition. Our intention is to make the process inclusive, comprehensive, simplified, and acceptable to all stakeholders,” he said.

The lawmaker urged that the competing political interests should not be part of the legislative process.

“We should read posterity in this law. We want to take it back to the people hence there should be no politicisation of the process,” he appealed.

JLAC chairman said the views by various members can be incorporated into one Bill, a position Pukose said was okay.

“I am ready to have my Bill absorbed into the JLAC proposal or the Kioni’s, whichever is brought to us,” Pukose said.

There was a public outrage over the timing of the legislation with Kenyans saying it was time to focus on the coronavirus and not politics.

(edited by o. owino)