THE ROUTES

Explainer: How to amend the Constitution

Through representatives in Parliament and popular initiative.

In Summary
  • The Constitution has provided the process of amending its clauses in Articles 255, 256 and 257.
  • Changes that don’t relate to the restricted elements can be done by Parliament, or by both the people and Parliament.
President Mwai Kibaki displays the new Constitution during its promulgation in Uhuru Park on August 10, 2010.
President Mwai Kibaki displays the new Constitution during its promulgation in Uhuru Park on August 10, 2010.
Image: FILE

Kenyans have two avenues for amending the Constitution: Through their representatives in Parliament, and by themselves – popular initiative, on many occasions through a referendum.

The Constitution has provided the process of amending its clauses in Articles 255, 256 and 257.

A referendum is a must if the changes affect the Constitution’s supremacy; the territory of Kenya; the sovereignty of the people; governance principles; Bill of Rights; president’s term in office; independence of Judiciary, commissions, functions of Parliament and structure of devolved government.

Such an amendment must be supported by at least 20 per cent of registered voters in at least 24 counties. A simple majority vote is required to approve such changes.

Those that don’t relate to the restricted elements can be done by Parliament, or by both the people and Parliament.

If the amendment takes the Parliament route, a Bill is introduced in either the Senate or National Assembly. It shall be read and takes 90 days before it is read a second time. It is considered passed if each House of Parliament musters two thirds support of all members of the respective Houses.

Parliament is required to publicise a Bill to amend the Constitution and facilitate public discussion on the bill.

After it is passed, the speakers of the Senate and National Assembly will jointly submit it to the President for assent and publication.

If the amendments need a referendum to approve, the President shall before assent request the Independent Electoral and Boundaries Commission to conduct a national plebiscite within 90 days. The President is required to assent to the Bill within 30 days and cause it to be published.

Kenyans equally have a chance to pursue amendments in the form of a general suggestion or a formulated draft bill. The promoters of such an initiative are required to formulate the suggestions into a draft Bill. The bill and the supporting signatures – at least one million, are then taken to the IEBC for verification.

If the electoral commission is satisfied that the initiative meets the required threshold, the bill is submitted to the 47 county assemblies for consideration within three months.

The speakers of the county assemblies that approve the bill are expected to deliver it to the speakers of the Senate and National Assembly, with a certificate that the county assembly has approved the bill.

If approved by the majority of the county assemblies, at least 24, the bill is introduced in Parliament and needs only a majority of members of each House to approve.

Once passed, the legislation is submitted to the President for assent. If either House fails to pass the bill, the proposed amendment shall be submitted to the people in a referendum.