• Currently, there is no express law providing for the procedure of conducting a referendum.
• One referendum Bill was sponsored by former JLAC chairman William Cheptumo (Baringo North) and the other by CIOC chairman Jeremiah Kioni (Ndaragwa).
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MPs have harmonised two referendum Bills to create one that would guide the vote to implement the BBI report.
The Justice and Legal Affairs Committee and the Constitution Implementation Oversight Committee have reportedly agreed on far-reaching proposals that provide clarity on how to conduct a plebiscite in the country.
One referendum Bill was sponsored by former JLAC chairman William Cheptumo (Baringo North) and the other by CIOC chairman Jeremiah Kioni (Ndaragwa).
The proposals were at the committee stage before the courts stopped further processing of Bills following a suit by the Senate.
Sources at the committees intimated to the Star that they have reached a conclusion of the plebiscite's guiding principles.
The Constitution of Kenya (Amendment) Bill, 2020, they say, will be voted as an omnibus legislation, with voters answering either ‘Yes’ or ‘No’.
The committees have also resolved that the Independent Electoral and Boundaries Commission’s job is to conduct the referendum.
“We are proposing that it be barred from delving into the contents of the Bill,” the source, a lawmaker, said.
The voting threshold to approve the referendum would be 20 per cent of registered voters in each of at least 24 counties.
CIOC and JLAC have also resolved that the attorney general and the Kenya Law Reform Commission have no role in drafting a Bill by popular initiative.
They have also provided that Parliament be a conveyor belt for the proposals, and the county assemblies as well.
The consolidated Referendum Bill, 2020, will also provide that petitions challenging a referendum be decided in 21 days.
There will be established by the promoters and any opposing quarters, a national referendum committee cascaded to the regional administrative units.
Most of the proposals in the Building Bridges Initiative report require a referendum to implement. They include the introduction of a prime minister and two deputies; having Cabinet members appointed from Parliament; the elevation of the DCI chief to deputy inspector general; and the reassignment of the National Police Service Commission roles to the Inspector General.
County assemblies will be required to report their approval or disapproval of the Bill to a designated office to be jointly created by the two speakers of Parliament.
The assemblies will be required to submit the Bill queued for the vote within specified timelines.
“If a county has not communicated a decision on the Bill, it will be taken as a negative vote,” the source said.
Kioni, when contacted over the proposals, confirmed the two committees had made progress and will give the way forward.
“We will give word on what we resolved about the procedural issues affecting the BBI process next week,” he said.
Following the development, the IEBC will simply submit the BBI Bill to the 47 county assemblies within three months after verifying the one million signatures backing it.
The Constitution says that once approved by 24 counties, the Bill shall be introduced in Parliament without any delay. Whether passed or rejected by Parliament, it will be taken to the people in a referendum.
The JLAC, in its report before the High Court injunction on Bills, had removed the option for promoters of an alternative Bill to initiate a parallel process.
Initially, where more than one draft Bill was presented for a vote, each of the Bills was to constitute an option with a separate symbol and answer.
But JLAC removed the clauses, saying it was not necessary to provide for other referenda in the Bill.
“The committee was of the view that the commission should not provide voters with other options other than approving or rejecting the referendum question,” JLAC’s report on the Bill reads.
The committee noted that providing other options to voters may complicate the referendum voting process and offend the Constitution’s call that a referendum be simple and transparent.
The referendum question will thus be referred to both Houses of Parliament for approval and then subjected to a vote by universal suffrage.
The 2010 referendum was conducted under the old constitution, which was repealed after the new Constitution was promulgated. Promoters drafted regulations to guide the process spearheaded by the defunct Interim Independent Electoral Commission.
Questions were formulated in seven days after the draft was published and was required to specify symbols—Red for No and Green for Yes—within 14 days.
The National Assembly’s Select Committee on Constitution Review played a key role in midwifing the amendments that were subject of the referendum.
The new Constitution, upon its enactment, staged definite procedures through which it can be amended. In it are specified proposals that can be changed by MPs and those that must be subjected to a referendum.
Most of the proposals in the Building Bridges Initiative report require a referendum to implement. They include the introduction of a prime minister and two deputies; having Cabinet members appointed from Parliament; the elevation of the DCI chief to deputy inspector general; and the reassignment of the National Police Service Commission roles to the Inspector General.
But the Constitution is plain in its provisions, which don’t specify how a Bill to amend the supreme law is treated at the various stages of its approval.
