Referendums, where voters are asked to vote on a proposal that government has put forward in a set of questions, are common globally.
There is a push by various quarters for a clause by clause vote on the recommendations in the Constitution of Kenya (Amendment) Bill, 2020, in the BBI drive.
The proponents want an omnibus vote on the bill but there are quarters that want the ballot papers designed in a way that people vote issue by issue.
The push is shaping up as the next battlefront between the proponents and the critics who believe there is room for further consensus on the ballot format.
The bill was changed drastically – to the acceptance of many, but there are quarters which still feel provisions for women senators, appointment of deputy ministers, and additional 70 MPs need a further relook.
Contentious issues, among them the place of the Senate on county revenue; bills originating from the Senate being presented to the National Assembly for assent; creation of a Kenya Police Council; parties nominating IEBC commissioners, and the President nominating the Judiciary Ombudsman were dropped.
The new bill has also clarified the nomination of Leader of Official Opposition and the manner in which vacancy in the office can be filled.
“We still have a problem here and there hence the reason we should have a discussion,” said Uasin Gishu Woman MP Gladys Shollei, an ally of Deputy President William Ruto.
“We still have major problems like say the election of 360 MPs which if filled by men will have to be topped up by 180 women nominees,” she added.
Kandara MP Alice Wahome said some of the issues will not help the country, adding that she doesn’t see the place of the document in resolving unity issues, reservations which elicit debate on a referendum on each of the recommended changes.
Constitutional lawyer Bobby Mkangi holds that it would be cumbersome to conduct a referendum where questions are answered clause by clause unless they are few.
"Look at the logistics, time especially of each voter to analyse and prepare for how they are going to answer 74 clauses, then the logistics of getting into a booth to answer 74 questions or even more." Added that "If done electronically, who would bother to go online and take time to reflect their feelings about 74 proposed changes in the constitution?" the lawyer said.
Mkangi said the problem stems from the formulation of the questions."Why a multiplicity of issues? Whether itemised or lumpsum, it indicates a failure to synthesise and zero in on one or a few fundamental issues whose attention would open up solutions to whatever else is deemed to be problematic," he told the Star.
He cited the case of general elections where there have been challenges of voters choosing six leaders.
"How about 74, whether individually or holistically decided? Again, the resultant confusion might be tactical; therefore deliberate. Ultimately, this melee combined with the challenge that in most referenda, voters decide based on the prevailing 'hali ya maisha' hence a verdict on contemporary leadership, other than the referendum issue(s), must be strategic for BBI proponents," he advised.
Mkangi, in summing his views, held that it "is the quality more than the quantity of the packaging that matters."
Clause-specific referendums are commonplace in Switzerland; Canada; several counties in the United States; New Zealand; Crimea, and Australia.
In the recent US election, ballot papers had referendum questions for the respective counties which sought to vote on issues affecting them.
One such was the vote on whether to permit retail stores to sell alcoholic beverages in small packs.
Canada’s 2018 referendum on election reforms had questions aligned to the various clauses that the bill intended to amend.
Crimea’s 2014 plebiscite on whether the region was to secede from Ukraine and join Russia had multiple questions.
The same was the case of British Columbia in 2018 where voters made choices on clauses that sought to institute electoral reforms.
Switzerland conducts many referendums in a year – about four – where citizens vote on around 15 proposals and cast ballot on issues affecting individual cantons.
Scots are mulling a referendum on the proposed Boris Johnson’s Internal Market Bill whose intention is to create a single ‘UK Market’ post Brexit.
Three weeks ago, Portland – a city in Oregon, United States – voted on six referendum questions, among them decriminalising hard drugs.
