• The media have been suggesting that the BBI’s sponsors want to use the popular initiative to get these ideas for changing the Constitution passed.
• The other way for Uhuru and Raila to get their baby through is to go straight to Parliament.
How much chance will you actually have to express your views on the BBI? This partly depends on what mechanism the politicians adopt for getting the document approved.
Though you may only know that it includes a proposal for not just a President and Deputy but a Prime Minister and two deputies, it has many other proposals, of various types.
This one about the Prime Minister is one just of many that would involve or change the Constitution. Some of these constitutional changes can never be carried out without the support of the people in a referendum. Others could be passed by Parliament alone.
There are a number of ideas for changing other laws (such as on elections, public finance, and intelligence).
It is not the practice in Kenya to have referendums on legislation, but there must be public participation. This will only happen if the Bills are actually introduced into Parliament.
And there are many suggestions as to policy – things that government ought to be doing. As many people have observed, these suggestions often amount to saying “The Constitution or the law or even common sense already says we should be doing this: let’s do it!” You might wonder why they have not already been done.
The media have been suggesting that the BBI’s sponsors want to use the popular initiative to get these ideas for changing the Constitution passed. This is what the Third Way Alliance used for its Punguza Mizigo proposals last year.
Using this method is likely to be challenged in court, if only because the idea seems to be to use public money – to take the proposal to the country and get signatures. Why is this wrong? You might think that a “popular initiative” means people like it. But it means the initiative “of the people”.
It is the way people are supposed to be able to propose changes to the Constitution.
If the people (a group of people, even a political party) want to use this method they have to pay — they don’t get public money to collect the signatures, and probably not for lobbying for people to vote in favour of their ideas.
But do you think President Uhuru Kenyatta and Raila Odinga are going to use their own money for this?
If nonetheless, they are able to go this way, they would have to get at least one million Kenyan voters to sign a document that sets out the proposals.
They have the document – the BBI Bill to amend the Constitution.
You might find you have a chance to be one of the one million. Please do not just sign because someone says you should.
It is quite a responsibility: The country would spend a great deal of money taking this through the county assemblies, to Parliament and possibly to the people in a referendum.
If the IEBC approves the signatures (says that the one million seem to be valid) the ideas have to go to the counties. Counties are supposed to have popular participation before they make important decisions like this – your second chance to get involved.
Again – think about this before you say “Yes we want you to go ahead and approve it”. Can you tell your county assembly, “I like this idea, but not that other one”?
You can certainly tell them that, but the Constitution seems to give the assemblies a simple choice: “Yes” or “No” to the whole constitutional amendment package.
If at least 24 county assemblies approve, the proposals go to Parliament. Again there should be public participation.
Public participation should be of the people’s own views. The politicians have plenty of chance to get their way. Public participation is not for them.
If Parliament passes it, it would go to the people for a referendum only about any change that appears in a list in Article 255 of the Constitution, setting out what must have a referendum to become law.
If Parliament rejects the whole package, however, it goes back to the people.
Can Parliament accept part of the proposals but not other parts? You might think that they – like the counties - should not.
The Referendum Bill (which has been before Parliament since last year but has not yet been passed) does not say whether Parliament could make changes or not.
Some politicians have said definitely it could. If so, presumably there should be a referendum asking “Do you want the suggestions that counties have accepted but Parliament has rejected to be approved?”
The referendum would also include any things they do approve but appear in that list in Article 255.
The other way for Uhuru and Raila to get their baby through is to go straight to Parliament. Your possible involvement is reduced to public participation in the parliamentary process and a referendum on Article 255 issues.
Whichever route is adopted there is no referendum before the changes have been to Parliament.
This whole process involves only constitutional change questions – not about new Acts of Parliament or changes to over 20 existing Acts, nor about the many pages on philosophy and policy on matters like health, education, tax, corruption, public participation, and national unity.
No matter how much politicians try to interest you in these other issues, it is hard to see that you will get a chance to express a view on them in a referendum, and otherwise not unless and until there is public participation on an issue.
If the only referendum is on Article 255 issues, what would those be? The scope of the referendum might end up in court.
Here are a few that are probably Article 255 changes. Taking powers away from Nairobi to give to the national government is probably included in “the objects, principles and structure of devolved government” – so needs the people’s approval.
Giving the President power to appoint a Judiciary Ombudsman who would be another member of the Judicial Service Commission might be viewed as affecting “the independence of the Judiciary”.
Reducing the representation of members of marginalised groups might well be held to be against the values and principles.
Reinstating a provision about the recall of county assembly members and putting it in the Constitution might need a referendum because it is about the sovereignty of the people.
Putting more power over appointment of the Salaries and Remuneration Commission into the hands of the President, or making a majority of the IEBC appointed by political parties will affect the independence of these commissions – requiring a people’s vote.
Would the proposal to change the system of government to have the Prime Minister etc. need an Article 255 referendum?
Certainly to give the National Assembly the power to vote on the Prime Minister is to affect the functions of Parliament.
Since Raila particularly has always portrayed this process as a “referendum”, would it be possible to have all the constitutional changes submitted to the people’s vote – even those that do not appear in Article 255?
The first move towards an Article 255 referendum is by the President. Incidentally, this provision was introduced into constitution drafts that included a President who was largely ceremonial, and not the head of government, but had various roles in constraining government - this was one of them.
It makes less sense when the President is probably behind the proposed changes and may have an incentive therefore to minimise the chance for the people to vote against.
However, he might now have an incentive to ensure that the people have a wide range of issues to vote on – to make them feel involved. But if an item not in Article 255 is passed by Parliament, a “No” vote in the referendum could not stop it.
However many issues are presented for your vote, you probably will only get the choice of “Yes” or “No’ to the package. Do be sure you know exactly what you are being asked if it comes to this.