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KATIBA CORNER

There are problems with the Referendum Bill

The Bill drafters misunderstand the Constitution, and suggest 20 per cent of registered voters in at least half of the counties must vote

In Summary

• There needs to be a clearer timetable for some aspects: How long does the IEBC have to verify signatures? How long does it have to send the proposal to the counties?

• Clarification is needed about procedure in county assemblies and Parliament.

President Uhuru Kenyatta reads the initial BBI report/
BBI: President Uhuru Kenyatta reads the initial BBI report/
Image: PSCU

A Bill in this sense is a proposed law for decision in Parliament. Not the sort you get in a restaurant.

You might perhaps think they have a good deal in common — since you as Kenyans will have to pay an exorbitant amount for this referendum.

You have probably got used to the idea of a “referendum” being used — especially by Raila Odinga — as shorthand for “changing the Constitution”.

This Bill is also not really about referendums generally but referendums on changing the Constitution.

There is already some law about referendums (including about subjects other than the Constitution).

But clearly, a concern to ensure that any BBI-related change goes through smoothly explains this new Bill.

 

Most simply, a  constitution change might be proposed in a Bill in Parliament; then 90 days before a detailed discussion to allow for public debate, followed by debate and voting in both Houses (Article 256).

If passed by each House of Parliament by two-thirds of all the members (not just those turning up and voting), on two separate occasions in each House, it is passed. The President must sign it.

A variation in this route (we can call it Route 1B) occurs if the changes affect any topic listed in Article 255. These include very wide issues (such as the Bill of Rights and the functions of Parliament), and some narrow ones like the “term of office of the President”.

If the President receives such a Bill, passed by Parliament, he must not sign unless there has been a referendum, in which at least 20 per cent of the voters in at least 24 of the counties have voted, and overall more of those voting said “Yes”.

Route 2 is the popular initiative: If someone proposes “an amendment” to the Constitution, and gets at least one million voters to sign supporting it if the IEBC confirms the one million [signatures], the proposal goes to the county assemblies.

They have three months for consideration, and, if at least 24 assemblies pass it, it goes to Parliament.

If a majority of each House supports it, it goes to the President for signature - or to a referendum first if it touches on items in Article 255.

If Parliament does not support it, it goes to the people in a referendum. If the people approve it, it becomes the law and the Constitution is changed.

The Punguza Initiative got as far as the counties but only one supported it.

ISSUES ABOUT AMENDMENTS

This Bill seems to be mainly about Route 3. This is unfortunate. Some other issues about changing the Constitution need clarification.

For example, public participation is required. But there is no guidance in the Constitution about how this should be conducted.

 

So much public participation was involved — and required in detailed law — in making the Constitution we have, it would be a gross injustice not to ensure plenty of informed public input if it is to be changed.

Just waiting 90 days before Parliament can proceed to debate a proposal is not good enough.

If the National Assembly and the Senate cannot agree on an amendment, does the procedure for a mediation committee used when ordinary law is being passed apply?

This raises another issue: For Route 1 amendments, does Parliament have to accept or reject proposals or can it change them?

The latter would make disagreements between the two houses more likely. The old Constitution allowed the National Assembly to say just “Yes” or “No”.

If it can change them, how is public participation ensured over something that is quite different from what was earlier presented for its input?

How does the President decide if a referendum is needed? Should Parliament draw it to his or her attention? Would they?

What happens if the President fails to send it to a referendum – for example, would he send a Bill that would remove his term limit?

Maybe there should be a certification process through the courts on whether there is a need for a referendum.

Suppose the President just refuses to sign: Does it automatically become law after a certain time like an ordinary law?

Who then has responsibility for publishing it in the Gazette? The “government’s legal adviser” or the lackey, the Attorney

POPULAR INITIATIVE UNCERTAINTIES

Even for the Route 3 approach, there are many gaps. Most basic is when the Constitution speaks of “an amendment” in the people’s (popular) proposal, does it include a government proposal? Government has Parliament; why should it use the people’s process? Why should Parliament allow this?

Second, equally basic, does it intend that one proposal should include 30 changes to the Constitution – roughly what Punguza Mizigo, Okoa Kenya, and now BBI, have basically proposed? This was based on the Swiss popular procedure, but the proposals there are always specific and narrow –  one idea.

The problem about “an amendment” applies to Route 1 amendments also. Should multiple amendment proposals go through a process more like those of the Constitution of Kenya Review Commission or the Committee of Experts?

A linked issue is how many questions can a referendum include? If you voted in 2010 or even 2005, did you feel frustrated that you had to say Yes or No to the whole document?

But how would it have worked if you had been asked to vote Yes or No to every idea in the draft Constitution? The new Bill is a bit ambiguous: Clause 6 refers to “the question” but clause 7(5) implies there may be more questions.

There needs to be a clearer timetable for some aspects: How long does the IEBC have to verify signatures? How long does it have to send the proposal to the counties?

Clarification is needed about the procedure in county assemblies and Parliament.

COUNTY AND NATIONAL LEVELS

On public participation at the devolved level, is it really enough for a county to give notice in the Gazette and two national newspapers?

They should be required to announce it on local radio stations and put up notices at all county commissioner, chiefs and assistant chiefs’ offices, and positively encourage local discussion on the Bill.

They should not introduce the Bill for discussion in the county assembly until two months of debate have passed.

Why does the county Speaker have to deliver a copy of the Bill to the speakers of Parliament? The county either passed it in its entirety or it did not.

Would it be too much to require the speaker to send a record of the motion signed by every MCA voting?

Is a simple majority (those present and voting) to pass it too little? Would the constitutional language allow a requirement of a majority of all the members?

Again, can Parliament change the poplar initiative proposals?

The chair of the committee (supposedly) behind these proposals recently said (the Standard reported ) that a “draft Bill through a popular initiative will go through normal parliamentary processes, and MPs will be free to make any changes.” Should they be allowed to change the people’s idea? Again - how about public participation on MPs’ changes?

How should we know when Parliament fails to pass the Bill? OK, if a house positively rejects it, but the Constitution gives no timeframe, just says it must be introduced without delay. Can Parliament just sit on it for years?

REFERENDUM PROCESSES

Anyone wanting to campaign must form an election committee (Clause 15). This is completely unacceptable. What is “campaigning" for or against it? Since they say there is to be one committee, they ought to clarify.

On the other hand, it is very restrictive to say one committee. Rights to freedoms of association and expression are limited. This needs rethinking.

The Bill drafters misunderstand the Constitution and suggest that 20 per cent of registered voters in at least half of the counties must vote. This is not what the Constitution says (see above). 

There are other problems – including with the process of taking a referendum petition to the court.

But these must await another day.

The authors, with Yash Pal Ghai, were the founders of Katiba Institute