We are getting increasingly alarmed about the “referendum talk”.
We do have grave reservations about many of the proposals floating around, and lean towards the school of thought that says, “Don’t touch the Constitution –for fear ‘they’ will take away the best bits”. But at this point our main worries are about the procedure. Confusion, even chaos, is what we see in our crystal ball.
Raila Odinga insists there will be a “referendum” this year, and that nothing can stop changes. Not a very democratic approach for someone anticipating a referendum – the people’s choice!
But how does Raila anticipate a referendum taking place? There are two ways this can happen in connection with amending the Constitution.
ARTICLE 255 CHANGES
What you might call the “normal” way to change the constitution is for Parliament to pass changes by the same sort of procedure for making any other law. There are three differences from ordinary law making procedure. First, once the Bill is introduced, nothing else must happen for 90 days, so that there can be public discussion.
For ordinary laws Parliament can reduce minimum time limits, though there is still a general requirement of public participation. Second, the Senate must approve a constitutional amendment, even if it will not affect counties. And third, each house must pass it not by a majority of those who bother to turn up and vote but of two-thirds of their entire memberships.
The referendum comes in if the amendment relates to something on a list in Article 255. This includes the term of office of the President, the human rights, national values, the objects of devolution, and independence of the judiciary. Many of these items are so wide, and the phrase “relates to” is so broad, that arguably most possible changes to the constitution will need a referendum.
One national value is integrity. Clearly to remove this word from Article 10 would need a referendum. But would every change to Chapter Six “relate to” the value of integrity because the chapter is called “Leadership and Integrity”? Quite likely a court case will be needed to decide some of these issues.
But — and this is very important — though politicians constantly talk of “referendum”,
the people only get asked, in a referendum, what they think of a proposed change when Parliament has already passed it. If you would like the number of MPs reduced, but the MPs will have none of it, you will not get asked what you think in a referendum. We have seen, over the two-thirds gender issue, how good MPs are at not even turning up to vote on something they don’t want.
POPULAR INITIATIVES
The other route to a referendum is under Article 257. Remember that? ODM (barely disguised as the Okoa Kenya Movement) got what it claimed were over one million signatures to change the constitution in several ways, including giving more money to counties. This fell at the first hurdle: the IEBC said a lot of the signatures were not valid.
If the IEBC had accepted the signatures, the next step would have been for it to send the draft Bill to amend the Constitution, to the counties. If at least 24 county assemblies approve it, it goes to Parliament. (It is unclear whether an assembly could approve only part of the amendment Bill.)
If Parliament rejects it, there must be a referendum. If the people approve it is passed. Even if Parliament does accept the Bill (only an ordinary majority is required), it may be necessary to have a referendum on some of the proposals (because they “relate to” some issue in Article 255).
In either type of referendum a “Yes” result is only valid if at least 20 per cent of all registered voters in at least half the counties actually vote, and, nationally, at least 50 per cent of those who do vote, vote “Yes”.
There is no sign that Raila is planning another “popular initiative”. He is presumably counting on getting support (through the Building Bridges Initiative) to push what he wants through Parliament. Then, as we have seen, if passed, some of the proposals will need a referendum. For example, a seven-year term for the President, and introducing a middle layer of regions between counties and national government would definitely need a referendum. So would a parliamentary system.
But would giving counties more money? A court battle is likely on some points.
But for Raila to keep talking about a “referendum” as though somehow it is a choice for the voters, is misleading.
ENTER THE THIRD WAY
Apparently the Third Way Alliance – led by Ekuru Aukot, director (and ex officio member) of the Committee of Experts that finalised the Constitution — has collected signatures to trigger a “popular initiative”. They want, among other things, fewer MPs and senators, including one man and one woman for each county in the National Assembly, a seven-year President (but no mention of a parliamentary system), more money for counties, reducing commissions to five members paid allowances only.
If the IEBC verifies the signatures, maybe 24 county assemblies will approve (they would like more money to counties and perhaps development through wards, even if the “nominated” members would not like being abolished). MPs will probably reject it. So there will have to be a referendum.
WHERE DOES THE CONFUSION COME IN?
The Third Way initiative does not include some things that Raila, and perhaps, Uhuru Kenyatta want, like a parliamentary system, and lots of jobs for them and their supporters. “Inclusivity” they call it.
No issues could be added to the Third Way issues — because the one million Kenyans have not signed supporting them. Arguably, changes approved by Parliament in the “normal way” to amend the Constitution could be combined with the Third Way questions in a single referendum. Will the two processes (if there are two) coincide? Will Third Way have to wait for Raila’s project? If so, will Raila’s proposals include 45 per cent for the counties and Third Ways 35 per cent? Will voters be able to sort out Ekuru’s seven-year (presumably executive) President and Raila’s seven-year (largely ceremonial) President?
Could MPs want to add things to Raila’s Bill, if there is one? Or to Third Way’s? We would argue not, because of the public participation element.
During the Okoa Kenya debacle, we argued that the questions asked were too general, and the process ought not to go on. For a different reason, IEBC stopped it.
WHAT WILL THE QUESTION (S) BE?
In 2010 voters were asked, “Do you want the Proposed Constitution?” The IEBC refused even to give the alternative – the proposed constitution or keep the existing one. This meant you had to accept or reject the whole constitution, even if you liked some bits and didn’t like others.
We argue that there must be a different question for each issue in any forthcoming referendum – because specific issues are identified as needing a referendum. Third Way’s proposals would need at least 20 questions. If questions from Raila’s proposals, if passed by Parliament, are added, there would surely be another ten or more. Do you fancy having to answer thirty plus questions in a polling booth?
Would you get a chance to choose not just between an executive President with a seven-year and a largely ceremonial President with a seven-year term but also, if you want the latter, whether the President should be chosen by Parliament or the people?
When Okoa Kenya produced its Bill, Jill wrote, “Think back to the making of the Constitution: We had the CKRC draft, then Bomas debated it and changed it. Then the Committee of Experts largely adopted the Bomas draft, but changed that in the light of comments. … most issues had been thought about over a number of years. But now, where is the public debate? Where is the analysis of the problems and the consideration of alternative solutions?”
Confusing enough? And now, the IEBC says it does not have enough money to verify Third Way’s signatures!