• Deputy President William Ruto wants the referendum conducted using a multiple-question format.
• But the JLAC and CIOC have not provided room for the DP’s push for options or alternatives.
Deputy President William Ruto’s push for multiple questions in the BBI referendum may be dealt a blow after two key House committees struck a deal to block it.
The Justice and Legal Affairs Committee and the Constitution Implementation Oversight Committee – both controlled by pro-handshake forces – have agreed on a harmonised referendum law that will have a single closed question.
The two House panels, crucial in the BBI process, have also inked a deal to sponsor further amendments to the Referendum Bill, 2020 to scuttle the possibility of the plebiscite being held alongside the 2022 General Election.
Ruto is demanding a multiple-choice referendum and that the plebiscite be held alongside the 2022 polls.
He also wants a review of the proposed appointment of Judiciary Ombudsman and election of 47 woman representatives.
But the the Star has established that the JLAC committee chaired by Kangema MP Muturi Kigano and CIOC led by Ndaragwa MP Jeremiah Kioni have not provided room for the DP’s push for options or alternatives.
JLAC vice-chairperson Otiende Amolo (Rarieda MP) told the Star they are awaiting Speaker Justin Muturi’s direction on which of the two referendum bills to amend to incorporate the recommendations.
"We agreed that we can only have one referendum question and cannot hold a referendum alongside the General Election," he said.
“If the Speaker says we amend our Bill, the CIOC chair will move the amendment. If he says we amend the CIOC version, then our chairman will move the amendment to factor in the resolutions reached during the harmonisation.”
He further allayed fears the recent High Court order that purported to nullify 23 Acts of Parliament passed without the input of the Senate had affected the referendum bill.
“The ruling, which has been appealed, only suggested that legislation should not be passed by the National Assembly without the input of the Senate.
"In so far as the referendum Bill is involved, we were always clear that a referendum would require the input of the Senate,” he said.
The MP said they reached out to their counterparts in the Senate when they retreated to discuss the two bills.
“We reached out to the JLAC of the Senate suggesting to them we go for a joint retreat but the dates were not convenient to them. We agreed that once we finish the harmonisation, the bills would go to them in the usual manner,” Amolo said.
Kioni said the call for adding an extra ballot with the referendum question is a good idea but may not apply in the current vote plan.
“I will pursue this cause in the future referendums. This one has fundamental issues that should be realised before the next General Election such as the additional constituencies,” he said.
A petition challenging the outcome of a referendum will be dispensed wirh in 21 days – being 14 days in High Court and seven days in the appelate court.
The Independent Electoral and Boundaries Commission’s job will also be to conduct the referendum and not delve in the bill’s content.
The Attorney General and the Kenya Law Reform Commission equally have no role in drafting a bill by popular initiative in the harmonised legislation.
JLAC and CIOC have also provided that Parliament and county assemblies will be a conveyor belt for the proposals.
County assemblies will report their approval or disapproval of the Bill to a designated office to be jointly created by the two speakers of Parliament.
If a county has not communicated a decision on the Bill, it will be taken as a negative vote.
Should the referendum Bill fail to materialise, the handshake team is considering using the existing laws to conduct the vote.
“In the event that we cannot get the referendum law because of one reason or another, we can use the same rules we used in the past referendum and they are binding,” Kioni said, noting that it is their fallback plan.
He said the referendum bill being fashioned will provide one piece of legislation to guide the referendum.
“All the principles for conducting a referendum by population initiative are contained in the Constitution.
“We already have a legal framework that can guide us through a referendum just that it is not in one piece of legislation. The laws were applied in the past referendums whose outcomes were acceptable to Kenyans,” Kioni said.
Constitutional lawyer Bobby Mkangi said it would be cumbersome to conduct a referendum where questions are answered clause by clause.
He argued it would not be easy for voters to analyse the over 70 clauses – whether manually or electronically.
Mkangi asked: “If voters have challenges of choosing six leaders, what would happen if we give them 74 clauses to vote on?”
"Look at the logistics and time, especially of each voter to analyse and prepare how they are going to answer 74 clauses,” he said.