• The law is silent on the number of referenda initiatives that can be conducted at any given time.
• There is no timeline on when a referendum can be held since there can be so many proposals at any given time
In 2014, I wrote to the speaker of the National Assembly, asking him to initiate a process to develop a referendum law.
This was because, in my assessment, the provisions of Chapter 16 are inadequate to occasion a successful change of the Constitution. There are so many loopholes in articles 255, 256, and 257 that would make any of the roadmaps to a successful plebiscite either unattainable or one wrought with many delays and bottlenecks.
To begin with, Article 255 (1) provides for grounds that can be used to frame a referendum. These include matters to do with the supremacy of the Constitution, the territory of Kenya, the national values and principles of governance, the Bill of Rights, the independence of the Judiciary, commissions and independent offices, functions of Parliament and, the objects, principles and structures of devolved government.
The big question here is the route to take. Either parliamentary or popular initiative can be the most desirable and legitimate in the court of public opinion. This is the first hurdle any party has to clear. Article 255 further provides that a referendum be considered by at least 20 per cent of registered voters in half (24) of the number of counties and that the vote shall be valid by a simple majority.
Article 256 provides for a parliamentary initiative as an avenue to amend the supreme law of the land. A bill proposing an amendment can be introduced to either House of Parliament but that 90 days must lapse between the first and the second reading.
Second, the bill must be passed by two-thirds of members of both Houses in the second and third reading before being referred to the President for assent. However, if the bill relates to matters enshrined in Article 255 (1), the President refers the bill to the IEBC, which shall conduct a plebiscite within 90 days. If the bill is approved, the President then assents to the bill within 30 days.
The second option is through the popular initiative where the promoters of the referendum can draft a bill and then collect one million signatures to support it. They then submit this to the IEBC, which upon verification and certification, the latter submits the proposal to speakers of the county assemblies.
The MCAs debate the bill within three months and if a majority of county assemblies approve the bill, the speakers of the county assemblies submit the bill to both speakers of the National Assembly and the Senate. The new referendum bill proposes that MCAs cannot amend the constitutional amendment bill.
After they pass it as it is, the bill is then passed by a simple majority in both Houses before the President assents to it. However, if the bill relates to matters enumerated in Article 255 (1), then it is submitted to the IEBC for a plebiscite to be conducted.
If you look at the process as enumerated above, several questions arise.
To begin with, the law is silent on the number of referenda initiatives that can be conducted at any given time. Second, there is no timeline on when a referendum can be held since there can be so many proposals at any given time, especially if you consider that with over 19 million registered voters, there is potential for a minimum of 19 referenda at any given time.
Third, there is no clear provision of what would happen in case any of the Houses fails to concur with the other by way of a two-thirds majority. In addition, there is no clear provision on the format of multiple questions that a bill may propose and the interpretation thereof of the proposed clauses, individually, jointly or in relation to other articles of the Constitution.
Moreover, what would happen if the President refuses to assent to a bill proposed and processed through a popular or parliamentary initiative?
The above questions must be adequately addressed if any referendum either in the short or long run can be successful. For our Constitution to be put in place, the process lasted about 20 years and this only finally became successful due to a constitutional review bill that was drafted to ensure there wasn’t back and forth in this process. In fact, when the draft constitutional bill was introduced to the then one chamber of Parliament, the MPs then proposed more amendments than the number of articles in the constitutional bill itself.
I am glad that recently, a new referendum bill has been gazetted, six years after my submission to the Speaker. Parliament and indeed the citizenry should, therefore, scrutinise it thoroughly, to ascertain that the Constitution is firstly not amended anyhow, but secondly, that such a process shouldn’t be frustrated unnecessarily through legal and political bottlenecks.
As to whether Kenyans can entertain a referendum after Covid-19, it is a question that looms large in the minds of many of them. They may be staying at home but not safely or comfortably due to among others, empty pockets, hunger and disease.