REFERENDUM BILL 2020

Proposed referendum Bill leaves room for manipulation by state actors - Aukot

In Summary

• Aukot said that the proposed Bill’s fate lies at the mercy of the Parliament since it has failed to stipulate the timelines for debating and voting on the Bill.

• It has further questioned the proposal that the High Court should be the court of original and final jurisdiction.

Third Way Alliance Party leader Ekuru Aukot.
Third Way Alliance Party leader Ekuru Aukot.
Image: FILE

The Thirdway Alliance party has raised questions regarding the proposed referendum Bill 2020.

Party leader Akuru Aukot said through a statement on Thursday state actors can easily manipulate the Constitution if the proposed bill goes through.

He said that if some of the contentious issues raised are not addressed, the Bill might make it impossible for other citizens to successfully carry out a Constitutional Amendment initiative under Article 257 of the Constitution.

The party leader has also said that the proposed Bill’s fate lies at the mercy of Parliament since it has failed to stipulate the timelines for debating and voting on the Bill.

“We cannot entrust a Constitutional Amendment Bill with no timelines to a Parliament especially the current Parliament which has demonstrated questionable conduct in the recent past. Case in point is the recent ouster of the Senate leadership at the behest of political party bosses,” Aukot said.

According to Aukot, the proposed referendum Bill which is to be carried out through the popular initiative way gives the Parliament and Commission an integral role in a Constitutional Amendment Initiative under Art 257, hence, failing to be a popular initiative amendment.

The party has also said that the Sh1 million security deposit as proposed by section 42(1) of the Proposed Referendum Bill 2020 for the petitions challenging referendum results is a stumbling block to petitioners who might not raise such amount of cash.

“This means that the promoters of this Bill want to mischievously bar litigants who cannot raise the money from seeking justice. Being public interest litigation, each party should bear their own costs as has been the case in the Presidential petitions of 2013 and 2017,” he said.

It has further questioned the proposal that the High Court should be the court of original and final jurisdiction.

“Curiously the drafters of the Bill have barred litigants from appealing the high court rulings in referendum petitions. Any litigation concerning referendums should be open to appeal in a higher court of justice should a determination in the High Court be unfavorable to the petitioners,” the statement reads.

According to Part VI-Referendum Petitions of the Proposed Referendum Bill 2020, the conduct, result and validity of a referendum may be challenged by petition to the High Court.

Aukot has also said that the referendum questions in section 6(2) of the proposed law gives the commission sole discretion in determining the referendum question.

The party boss added that if the commission misinterprets the promoter’s question, the referendum will have to go on based on the wrong question.

“We propose that the Bill should be amended to compel the IEBC to build consensus with the promoters before the publication of the question.”

He has also questioned article 4 (2) (3) of the bill which talks about the commission redrafting a bill to conform with the constitution and the right format.

“This raises the question of what if the Commission either intentionally or otherwise interferes with the contents of the bill. The Commission should instead give guidelines to the promoters on the prose and format that a bill should be submitted in.”